AGREEMENT AND PLAN OF MERGER BY AND AMONG TRIKON TECHNOLOGIES, INC. AVIZA TECHNOLOGY, INC. NEW ATHLETICS, INC. BASEBALL ACQUISITION CORP. I AND BASEBALL ACQUISITION CORP. II DATED AS OF MARCH 14, 2005 TABLE OF CONTENTS

Exhibit 2.1

 

AGREEMENT AND PLAN OF MERGER

 

BY AND AMONG

 

TRIKON TECHNOLOGIES, INC.

 

AVIZA TECHNOLOGY, INC.

 

NEW ATHLETICS, INC.

 

BASEBALL ACQUISITION CORP. I

 

AND

 

BASEBALL ACQUISITION CORP. II

 

D ATED AS OF M ARCH 14, 2005

TABLE OF CONTENTS

 

 

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EXHIBITS

 

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THIS AGREEMENT AND PLAN OF MERGER , dated as of March 14, 2005 (this “ Agreement ”), is entered into by and among Trikon Technologies, Inc., a Delaware corporation (“ Trikon ”), Aviza Technology, Inc., a Delaware corporation (“ Aviza ”), New Athletics, Inc., a newly-formed Delaware corporation (“ New Athletics ”), Baseball Acquisition Corp. I, a Delaware corporation and a wholly owned subsidiary of New Athletics (“ Trikon Merger Sub ”), and Baseball Acquisition Corp. II, a Delaware corporation and a wholly owned subsidiary of New Athletics (“ Aviza Merger Sub ”).

 

WHEREAS , the respective Boards of Directors of Trikon (the “ Trikon Board ”), Aviza (the “ Aviza Board ”), Trikon Merger Sub and Aviza Merger Sub deem it advisable and in the best interests of each corporation and its respective stockholders that Trikon and Aviza combine in order to advance the interests of Trikon and Aviza and their respective stockholders;

 

WHEREAS, the combination of Trikon and Aviza shall be effected through (i) the merger of Trikon Merger Sub with and into Trikon and (ii) the merger of Aviza Merger Sub with and into Aviza, such that each of Trikon and Aviza become wholly owned subsidiaries of New Athletics and the stockholders of each of Trikon and Aviza become stockholders of New Athletics, in each case, upon the terms and subject to the conditions of this Agreement and in accordance with the General Corporation Law of the State of Delaware (the “ DGCL ”);

 

WHEREAS , by executing this Agreement, New Athletics, Trikon, Aviza, Trikon Merger Sub and Aviza Merger Sub intend (i) to adopt this Agreement as a plan of reorganization; (ii) that the Mergers (as defined in Section 1.3 hereof) be treated as an integrated transaction for U.S. federal income Tax purposes; (iii) that the Mergers, taken together, qualify as an exchange described in Section 351 of the Internal Revenue Code of 1986, as amended (the “ Code ”) and the regulations promulgated thereunder and (iv) that the Trikon Merger (as defined in Section 1.2 hereof) qualify as a reorganization within the meaning of Section 368(a) of the Code;

 

WHEREAS , concurrently with the execution of this Agreement, and as a material inducement to the parties’ willingness to enter into this Agreement, each of New Athletics, Trikon, VantagePoint Venture Partners IV (Q), L.P., VantagePoint Venture Partners IV, L.P. and VantagePoint Venture Partners IV Principals Fund, L.P. have entered into the Stockholder Agreement in the form attached hereto as Exhibit A (the “ Stockholder Agreement ”) to become effective as of the Effective Time (except as otherwise expressly stated therein); and

 

WHEREAS , immediately following the execution of this Agreement, and as a material inducement to the parties’ willingness to enter into this Agreement, each of VantagePoint Venture Partners IV (Q), L.P., VantagePoint Venture Partners IV, L.P. and VantagePoint Venture Partners IV Principals Fund, L.P. will adopt this Agreement and approve the Aviza Merger (as defined in Section 1.3 hereof) by executing and delivering an irrevocable written consent in the form attached hereto as Exhibit B .

NOW , THEREFORE , in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and intending to be legally bound hereby, the parties hereto agree as follows:

 

Article 1.

The Mergers

 

Section 1.1 Certificate of Incorporation and Bylaws of New Athletics . Trikon and Aviza shall cause the Certificate of Incorporation and Bylaws of New Athletics to be amended as of immediately prior to the Effective Time (as defined in Section 1.4 hereof) to be in the forms attached hereto as Exhibit C (the “ New Athletics Certificate ”) and Exhibit D (the “ New Athletics Bylaws ”), respectively. From the date hereof until the Effective Time, Trikon and Aviza shall consult with each other prior to causing or permitting New Athletics to take any action inconsistent with the provisions of this Agreement without the prior written consent of the other.

 

Section 1.2 The Trikon Merger . Upon the terms and subject to the provisions of this Agreement, and in accordance with the relevant provisions of the DGCL, Trikon Merger Sub shall merge with and into Trikon (the “ Trikon Merger ”) at the Effective Time (as defined in Section 1.4 hereof). Trikon Merger Sub has been formed solely to effectuate the Trikon Merger and conducts no business or activity other than in connection with the Trikon Merger.

 

Section 1.3 The Aviza Merger . Upon the terms and subject to the provisions of this Agreement, and in accordance with the relevant provisions of the DGCL, Aviza Merger Sub shall merge with and into Aviza (the “ Aviza Merger ” and, together with the Trikon Merger, the “ Mergers ”) at the Effective Time (as defined in Section 1.4 hereof). Aviza Merger Sub has been formed solely to effectuate the Aviza Merger and conducts no business or activity other than in connection with the Aviza Merger.

 

Section 1.4 Effective Time of the Mergers . Upon the terms and subject to the provisions of this Agreement, a certificate of merger with respect to each Merger in such form as is required by the relevant provisions of the DGCL (each, with respect to one of the Mergers, a “ Certificate of Merger ” and collectively, with respect to both Mergers, the “ Certificates of Merger ”) shall be duly prepared, executed and acknowledged and thereafter delivered to the Secretary of State of the State of Delaware for filing, as provided in the DGCL, as early as practicable on the Closing Date (as defined in Section 1.5 hereof). Each Merger shall become effective at such time as is specified in the applicable Certificate of Merger (the time at which both Mergers have become effective being hereinafter referred to as the “ Effective Time ”).

 

Section 1.5 Closing . The closing of the Mergers (the “ Closing ”) shall take place at such time and place to be agreed upon by Trikon and Aviza, on a date to be specified by Trikon and Aviza, which shall be no later than the second (2 ^nd ) Business Day after the satisfaction or, if permissible, the waiver of all of the conditions set forth in Article 6 hereof, unless another date is agreed to in writing by Trikon and Aviza (such date, the “ Closing Date ”).

 

Section 1.6 Effect of the Mergers . As a result of the Trikon Merger, the separate corporate existence of Trikon Merger Sub shall cease and Trikon shall continue as the surviving corporation in the Trikon Merger (the “ Trikon Surviving Corporation ”). As a result of the Aviza Merger, the separate corporate existence of Aviza Merger Sub shall cease and Aviza shall continue as the surviving corporation in the Aviza Merger (the “ Aviza Surviving Corporation ” and, together with the Trikon Surviving Corporation, the “ Surviving

 

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Corporations ”). The effects of the Mergers shall be as provided in the applicable provisions of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, except as otherwise provided herein, (i) all the property, rights, privileges, powers and franchises of Trikon and Trikon Merger Sub shall vest in the Trikon Surviving Corporation, and all debts, liabilities and duties of Trikon and Trikon Merger Sub shall become the debts, liabilities and duties of the Trikon Surviving Corporation and (ii) all the property, rights, privileges, powers and franchises of Aviza and Aviza Merger Sub shall vest in the Aviza Surviving Corporation, and all debts, liabilities and duties of Aviza and Aviza Merger Sub shall become the debts, liabilities and duties of the Aviza Surviving Corporation.

 

Section 1.7 Certificates of Incorporation and Bylaws of the Surviving Corporations . At the Effective Time, (i) the Certificate of Incorporation and Bylaws of the Trikon Surviving Corporation shall be amended in their entirety to contain the provisions set forth in the Certificate of Incorporation and Bylaws of Trikon Merger Sub, each as in effect immediately prior to the Effective Time and as set forth in Exhibits E and F hereto (except that the name of the Trikon Surviving Corporation shall be “Trikon Technologies, Inc.”) and (ii) the Certificate of Incorporation and Bylaws of the Aviza Surviving Corporation shall be amended in their entirety to contain the provisions set forth in the Certificate of Incorporation and Bylaws of Aviza Merger Sub, each as in effect immediately prior to the Effective Time and as set forth in Exhibits G and H hereto (except that the name of the Aviza Surviving Corporation shall be “Aviza, Inc.”).

 

Section 1.8 Directors and Officers of the Surviving Corporations . The parties hereto shall use their reasonable best efforts to cause the directors of Trikon Merger Sub immediately prior to the Effective Time to be the initial directors of the Trikon Surviving Corporation, each to hold office in accordance with the Certificate of Incorporation and Bylaws of the Trikon Surviving Corporation. The corporate officers of Trikon immediately prior to the Effective Time shall be the initial officers of the Trikon Surviving Corporation, each to hold office in accordance with the Certificate of Incorporation and Bylaws of the Trikon Surviving Corporation. The parties hereto shall use their reasonable best efforts to cause the directors of Aviza Merger Sub immediately prior to the Effective Time to be the initial directors of the Aviza Surviving Corporation, each to hold office in accordance with the Certificate of Incorporation and Bylaws of the Aviza Surviving Corporation. The corporate officers of Aviza immediately prior to the Effective Time shall be the initial officers of the Aviza Surviving Corporation, each to hold office in accordance with the Certificate of Incorporation and Bylaws of the Aviza Surviving Corporation.

 

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Article 2.

Conversion of Securities; Exchange of Certificates

 

Section 2.1 Conversion of Securities . At the Effective Time, by virtue of the Mergers and without any action on the part of New Athletics, Trikon, Trikon Merger Sub, Aviza, Aviza Merger Sub or the holders of any of the following securities:

 

Section 2.1.1 Conversion Generally.

 

Section 2.1.1.1 Trikon Common Stock . Each share of common stock, par value $0.001 per share, of Trikon (“ Trikon Common Stock ”) issued and outstanding immediately prior to the Effective Time (other than any shares of Trikon Common Stock to be canceled pursuant to Section 2.1.2 hereof) shall be converted, subject to Section 2.2.5 hereof, into the right to receive a number of shares of common stock, par value $0.0001 per share, of New Athletics (“ New Athletics Common Stock ”) equal to the Trikon Exchange Ratio. All such shares of Trikon Common Stock shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each certificate previously representing any such shares shall thereafter represent the right to receive a certificate representing the shares of New Athletics Common Stock into which such Trikon Common Stock was converted in the Trikon Merger. Certificates previously representing shares of Trikon Common Stock shall be exchanged for certificates representing whole shares of New Athletics Common Stock issued in consideration therefor upon the surrender of such certificates in accordance with the provisions of Section 2.2 hereof, without interest. No fractional share of New Athletics Common Stock shall be issued, and in lieu thereof, a cash payment shall be made pursuant to Section 2.2.5 hereof.

 

Section 2.1.1.2 Trikon Warrants . At the Effective Time, all unexercised and unexpired warrants to purchase shares of Trikon Common Stock (“ Trikon Warrants ”) then outstanding shall be assumed by New Athletics. Each Trikon Warrant so assumed by New Athletics under this Agreement shall continue to have, and be subject to, the same terms and conditions as set forth in such Trikon Warrant and any agreements executed in connection therewith as in effect immediately prior to the Effective Time, except that (i) each Trikon Warrant shall be exercisable (or shall become exercisable in accordance with its terms) for that number of whole shares of New Athletics Common Stock equal to the product of (x) the number of shares of Trikon Common Stock that were issuable upon the exercise of such Trikon Warrant immediately prior to the Effective Time multiplied by (y) the Trikon Exchange Ratio, rounded down to the nearest whole number of shares of New Athletics Common Stock and (ii) the per share exercise price for the shares of New Athletics Common Stock issuable upon the exercise of such Trikon Warrant shall be equal to the quotient determined by dividing (x) the exercise price per share of Trikon Common Stock at which such Trikon Warrant was exercisable immediately prior to the Effective Time by (y) the Trikon Exchange Ratio, rounded up to the nearest whole cent.

 

Section 2.1.1.3 Aviza Common Stock . Each share of common stock, par value $0.001 per share, of Aviza (“ Aviza Common Stock ”) issued and outstanding immediately prior to the Effective Time (other than any shares of Aviza Common Stock to be canceled pursuant to Section 2.1.2 hereof and Dissenting Shares in accordance with Section 2.5 hereof) shall be converted, subject to Section 2.2.5 hereof, into the right to receive a number of shares of New Athletics Common Stock equal to the Aviza Exchange Ratio. All such shares of Aviza Common Stock shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each certificate previously representing any such shares shall thereafter represent the right to receive a certificate representing the shares of New Athletics Common Stock into which such Aviza Common Stock was converted in the Aviza Merger. Certificates previously representing shares of Aviza Common Stock shall be exchanged for certificates

 

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representing whole shares of New Athletics Common Stock issued in consideration therefor upon the surrender of such certificates in accordance with the provisions of Section 2.2 hereof, without interest. No fractional share of New Athletics Common Stock shall be issued, and in lieu thereof, a cash payment shall be made pursuant to Section 2.2.5 hereof.

 

Section 2.1.1.4 Aviza Series A Preferred Stock . Each share of Series A Preferred Stock, par value $0.001 per share, of Aviza (the “ Aviza Series A Preferred Stock ”) issued and outstanding immediately prior to the Effective Time (other than any shares of Aviza Series A Preferred Stock to be canceled pursuant to Section 2.1.2 hereof and Dissenting Shares in accordance with Section 2.5 hereof), shall be converted, subject to Section 2.2.5 hereof, into the right to receive a number of shares of New Athletics Common Stock equal to the product of (x) that number of shares of Aviza Common Stock into which such share of Aviza Series A Preferred Stock would have been convertible immediately prior to the Effective Time multiplied by (y) the Aviza Exchange Ratio. All such shares of Aviza Series A Preferred Stock shall no longer be outstanding and shall automatically be canceled and shall cease to exist, and each certificate previously representing any such shares shall thereafter represent the right to receive a certificate representing the shares of New Athletics Common Stock into which such Aviza Series A Preferred Stock was converted in the Aviza Merger. Certificates previously representing shares of Aviza Series A Preferred Stock shall be exchanged for certificates representing whole shares of New Athletics Common Stock issued in consideration therefor upon the surrender of such certificates in accordance with the provisions of Section 2.2 hereof, without interest. No fractional share of New Athletics Common Stock shall be issued, and in lieu thereof, a cash payment shall be made pursuant to Section 2.2.5 hereof.

 

Section 2.1.1.5 Aviza Series B Preferred Stock . Each share of Series B Preferred Stock, par value $100 per share, of Aviza (the “ Aviza Series B Preferred Stock ” and, together with the Aviza Series A Preferred Stock, the “ Aviza Preferred Stock ”) issued and outstanding immediately prior to the Effective Time shall remain issued and outstanding after the Effective Time and shall be unaffected by the Mergers.

 

Section 2.1.1.6 Aviza Warrants . At the Effective Time, all unexercised and unexpired warrants to purchase shares of Aviza Series A Preferred Stock (“ Aviza Warrants ”) then outstanding shall be cancelled and extinguished without consideration.

 

Section 2.1.2 Cancellation of Certain Shares . Each share of New Athletics Common Stock issued and outstanding immediately prior to the Effective Time shall be surrendered and cancelled. Each share of Trikon Stock held by Aviza or any wholly owned subsidiary of Aviza, in the treasury of Trikon or by any wholly owned subsidiary of Trikon immediately prior to the Effective Time shall be canceled and extinguished without any conversion thereof and no payment shall be made with respect thereto. Each share of Aviza Stock held by Trikon or any wholly owned subsidiary of Trikon, in the treasury of Aviza or by any wholly owned subsidiary of Aviza immediately prior to the Effective Time shall be canceled and extinguished without any conversion thereof and no payment shall be made with respect thereto.

 

Section 2.1.3 Trikon Merger Sub . Each share of common stock, par value $0.001 per share, of Trikon Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and be exchanged for one newly and validly issued, fully paid and nonassessable share of common stock of the Trikon Surviving Corporation.

 

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Section 2.1.4 Aviza Merger Sub . Each share of common stock, par value $0.001 per share, of Aviza Merger Sub issued and outstanding immediately prior to the Effective Time shall be converted into and be exchanged for one newly and validly issued, fully paid and nonassessable share of common stock of the Aviza Surviving Corporation.

 

Section 2.1.5 Change in Shares . If between the date of this Agreement and the Effective Time the outstanding shares of New Athletics Common Stock, Trikon Stock, Aviza Common Stock or Aviza Series A Preferred Stock shall have been changed into a different number of shares or a different class, by reason of any stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares, the Exchange Ratios shall be correspondingly adjusted to reflect such stock dividend, subdivision, reclassification, recapitalization, split, combination or exchange of shares.

 

Section 2.2 Exchange of Certificates .

 

Section 2.2.1 Exchange Agent . As promptly as practicable after the Effective Time, New Athletics shall deposit, or shall cause to be deposited, with American Stock Transfer & Trust Co. or another bank or trust company designated by New Athletics and reasonably satisfactory to each of Aviza and Trikon (the “ Exchange Agent ”), for the benefit of the holders of shares of Trikon Stock and Aviza Stock, for exchange in accordance with this Article 2, through the Exchange Agent, certificates representing the shares of New Athletics Common Stock (such certificates for shares of New Athletics Common Stock, together with cash in lieu of fractional shares and any dividends or distributions with respect thereto, being hereinafter referred to as the “ Exchange Fund ”) issuable pursuant to Section 2.1 hereof in exchange for outstanding shares of Trikon Stock and Aviza Stock. The Exchange Agent shall, pursuant to irrevocable instructions, deliver the New Athletics Common Stock contemplated to be issued pursuant to Section 2.1 hereof out of the Exchange Fund. Except as contemplated by Section 2.2.5 hereof, the Exchange Fund shall not be used for any other purpose.

 

Section 2.2.2 Exchange Procedures . Promptly after the Effective Time, New Athletics shall instruct the Exchange Agent to mail to each holder of record of a certificate or certificates which immediately prior to the Effective Time represented outstanding shares of Trikon Stock, Aviza Series A Preferred Stock or Aviza Common Stock (collectively, the “ Certificates ”) (A) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent and shall be in customary form) and (B) instructions for use in effecting the surrender of the Certificates in exchange for certificates representing shares of New Athletics Common Stock and cash in lieu of fractional shares and any dividends or distributions with respect thereto. Upon surrender of a Certificate for cancellation to the Exchange Agent together with such letter of transmittal, properly completed and duly executed, and such other documents as may be required pursuant to such instructions, the holder of such Certificate shall be entitled to receive in exchange therefor a certificate representing that number of whole shares of New Athletics Common Stock which such holder has the right to receive in respect of the shares of Trikon Stock, Aviza Series A Preferred Stock or Aviza Common Stock, as the case may be,

 

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formerly represented by such Certificate (after taking into account all shares of Trikon Stock, Aviza Series A Preferred Stock or Aviza Common Stock, as the case may be, then held by such holder), cash in lieu of fractional shares of New Athletics Common Stock to which such holder is entitled pursuant to Section 2.2.5 hereof and any dividends or other distributions to which such holder is entitled pursuant to Section 2.2.3 hereof, and the Certificate so surrendered shall forthwith be canceled. No interest shall be paid or shall accrue on any cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Certificates. In the event of a transfer of ownership of shares of Trikon Stock, Aviza Series A Preferred Stock or Aviza Common Stock which is not registered in the transfer records of Trikon or Aviza, respectively, a certificate representing the proper number of shares of New Athletics Common Stock may be issued to a transferee if the Certificate representing such shares of Trikon Stock, Aviza Series A Preferred Stock or Aviza Common Stock, as the case may be, is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and by evidence that any applicable stock transfer Taxes have been paid. Until surrendered as contemplated by this Section 2.2, each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the certificate representing shares of New Athletics Common Stock, cash in lieu of any fractional shares of New Athletics Common Stock to which such holder is entitled pursuant to Section 2.2.5 hereof and any dividends or other distributions to which such holder is entitled pursuant to Section 2.2.3 hereof. Certificates surrendered for exchange by any person constituting an “affiliate” of either Trikon or Aviza for purposes of Rule 145(c) under the Securities Act shall not be exchanged until New Athletics has received an Affiliate Agreement (as defined in Section 5.15 hereof) from such person.

 

Section 2.2.3 Distributions with Respect to Unexchanged Shares of New Athletics Common Stock . No dividends or other distributions declared or made after the Effective Time with respect to New Athletics Common Stock with a record date after the Effective Time shall be paid to the holder of any unsurrendered Certificate with respect to the shares of New Athletics Common Stock represented thereby, and no cash payment in lieu of fractional shares shall be paid to any such holder pursuant to Section 2.2.5 hereof, unless and until the holder of such Certificate shall surrender such Certificate. Subject to the effect of escheat, Tax or other applicable Laws, following surrender of any such Certificate, there shall be paid to the holder of the certificates representing whole shares of New Athletics Common Stock issued in exchange therefor, without interest, (A) promptly, the amount of any cash payable with respect to a fractional share of New Athletics Common Stock to which such holder is entitled pursuant to Section 2.2.5 hereof and the amount of dividends or other distributions with a record date after the Effective Time theretofore paid with respect to such whole shares of New Athletics Common Stock and (B) at the appropriate payment date, the amount of dividends or other distributions, with a record date after the Effective Time but prior to surrender and a payment date occurring after surrender, payable with respect to such whole shares of New Athletics Common Stock.

 

Section 2.2.4 Further Rights in Trikon Stock and Aviza Stock . All shares of New Athletics Common Stock issued upon conversion of the shares of Trikon Stock, Aviza Series A Preferred Stock and Aviza Common Stock in accordance with the terms hereof (including any cash paid pursuant to Section 2.2.3 or Section 2.2.5 hereof) shall be deemed to have been issued in full satisfaction of all rights pertaining to such shares of Trikon Stock, Aviza Series A Preferred Stock or Aviza Common Stock, as the case may be.

 

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Section 2.2.5 Fractional Shares . No certificates or scrip representing fractional shares of New Athletics Common Stock shall be issued upon the surrender for exchange of Certificates, no dividend or distribution with respect to New Athletics Common Stock shall be payable on or with respect to any fractional share and such fractional share interests shall not entitle the owner thereof to any rights of a stockholder of New Athletics.

 

Section 2.2.5.1 As promptly as practicable following the Effective Time, the Exchange Agent shall determine the difference between (A) the number of full shares of New Athletics Common Stock delivered to the Exchange Agent by New Athletics pursuant to Section 2.2.1 hereof and (B) the aggregate number of full shares of New Athletics Common Stock to be distributed to holders of Trikon Stock, Aviza Series A Preferred Stock and Aviza Common Stock pursuant to Section 2.2.2 hereof (such difference being the “ Excess Shares ”). As soon after the Effective Time as practicable, the Exchange Agent, as agent for such holders of New Athletics Common Stock, shall sell the Excess Shares at then prevailing prices on the Nasdaq National Market (“ NASDAQ ”), all in the manner provided in this Section 2.2.5.

 

Section 2.2.5.2 The sale of the Excess Shares by the Exchange Agent shall be executed on NASDAQ and shall be executed in round lots to the extent practicable. Until the net proceeds of any such sale or sales have been distributed to such holders of Trikon Stock and Aviza Stock, the Exchange Agent shall hold such proceeds in trust for such holders of Trikon Stock and Aviza Stock as part of the Exchange Fund. New Athletics shall pay all commissions, transfer taxes and other out-of-pocket transaction costs of the Exchange Agent incurred in connection with such sale or sales of Excess Shares. In addition, New Athletics shall pay the Exchange Agent’s compensation and expenses in connection with such sale or sales. The Exchange Agent shall determine the portion of such net proceeds to which each holder of Trikon Stock and Aviza Stock shall be entitled, if any, by multiplying the amount of the aggregate net proceeds by a fraction, the numerator of which is the amount of the fractional share interest to which such holder of Trikon Stock, Aviza Series A Preferred Stock or Aviza Common Stock, as the case may be, is entitled (after taking into account all shares of New Athletics Common Stock to be issued to such holder) and the denominator of which is the aggregate amount of fractional share interests to which all holders of Trikon Stock, Aviza Series A Preferred Stock and Aviza Common Stock are entitled.

 

Section 2.2.5.3 As soon as practicable after the determination of the amount of cash, if any, to be paid to holders of Trikon Stock, Aviza Series A Preferred Stock and Aviza Common Stock with respect to any fractional share interests, the Exchange Agent shall promptly pay such amounts to such holders of Trikon Stock, Aviza Series A Preferred Stock and Aviza Common Stock subject to and in accordance with the terms of Section 2.2.3 hereof.

 

Section 2.2.6 Termination of Exchange Fund . Any portion of the Exchange Fund which remains undistributed to the former stockholders of Trikon or Aviza for six (6) months after the Effective Time shall be delivered to New Athletics upon demand, and

 

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any former stockholder of Trikon or Aviza who have not theretofore complied with this Article 2 shall thereafter look only to New Athletics for the shares of New Athletics Common Stock, any cash in lieu of fractional shares of New Athletics Common Stock to which they are entitled pursuant to Section 2.2.5 hereof and any dividends or other distributions with respect to New Athletics Common Stock to which they are entitled pursuant to Section 2.2.3 hereof, in each case, without any interest thereon.

 

Section 2.2.7 No Liability . None of New Athletics, Trikon, Aviza or the Exchange Agent shall be liable to any holder of shares of Trikon Stock or Aviza Stock for any such shares of New Athletics Common Stock (or dividends or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to any abandoned property, escheat or similar Law.

 

Section 2.2.8 Lost Certificates . If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the person claiming such Certificate to be lost, stolen or destroyed and, if required by New Athletics or one of the Surviving Corporations, the making of an indemnity and/or posting by such person of a bond, in such reasonable amount as New Athletics or one of the Surviving Corporations may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent shall issue in exchange for such lost, stolen or destroyed Certificate the shares of New Athletics Common Stock, any cash in lieu of fractional shares of New Athletics Common Stock to which the holders thereof are entitled pursuant to Section 2.2.5 hereof and any dividends or other distributions to which the holders thereof are entitled pursuant to Section 2.2.3 hereof, in each case, without any interest thereon.

 

Section 2.2.9 Withholding . New Athletics, each of the Surviving Corporations or the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Trikon Stock or Aviza Stock such amounts as New Athletics, either of the Surviving Corporations or the Exchange Agent are required to deduct and withhold under the Code, or any provision of state, local or foreign Tax Law, with respect to the making of such payment. To the extent that amounts are so withheld by New Athletics, either of the Surviving Corporations or the Exchange Agent, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Trikon Stock or Aviza Stock, as the case may be, in respect of whom such deduction and withholding was made.

 

Section 2.3 Stock Transfer Books . At the Effective Time, the stock transfer books of Trikon and Aviza shall be closed and thereafter, there shall be no further registration of transfers of shares of Trikon Stock or Aviza Stock theretofore outstanding on the records of Trikon or Aviza, respectively. From and after the Effective Time, the holders of Certificates shall cease to have any rights with respect to the shares of Trikon Stock or Aviza Stock represented thereby except as otherwise provided herein or by Law. On or after the Effective Time, any Certificates presented to the Exchange Agent or New Athletics for any reason shall be converted into the shares of New Athletics Common Stock, any cash in lieu of fractional shares of New Athletics Common Stock to which the holders thereof are entitled pursuant to Section 2.2.5 hereof and any dividends or other distributions to which the holders thereof are entitled pursuant to Section 2.2.3 hereof.

 

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Section 2.4 Stock Options .

 

Section 2.4.1 Trikon Options . At the Effective Time, all unexercised and unexpired options to purchase shares of Trikon Common Stock (“ Trikon Options ”) outstanding immediately prior to the Effective Time under the Trikon Technologies, Inc. 1991 Stock Option Plan, the Trikon, Inc. 1998 Directors Stock Option Plan, the Trikon Technologies, Inc. 2004 Equity Incentive Plan or any other plan, agreement or arrangement listed on Section 2.4.1 of the Trikon Disclosure Schedule (collectively, the “ Trikon Stock Option Plans ”), whether or not then exercisable, shall be assumed by New Athletics. Section 2.4.1 of the Trikon Disclosure Schedule includes information with respect to any rights that provide for the acceleration or other changes in the vesting provisions or other terms under the Trikon Options or Trikon Stock Option Plans as a result of the Trikon Merger (either alone or in connection with additional or subsequent events). Each Trikon Option so assumed by New Athletics under this Agreement shall in all material respects continue to have, and be subject to, the same terms and conditions as set forth in the Trikon Stock Option Plan and any agreements thereunder governing such Trikon Option immediately prior to the Effective Time, except that (i) each Trikon Option shall be exercisable (or shall become exercisable in accordance with its terms) for that number of whole shares of New Athletics Common Stock equal to the product of (x) the number of shares of Trikon Common Stock that were issuable upon the exercise of such Trikon Option immediately prior to the Effective Time multiplied by (y) the Trikon Exchange Ratio, rounded down to the nearest whole number of shares of New Athletics Common Stock and (ii) the per share exercise price for the shares of New Athletics Common Stock issuable upon the exercise of such Trikon Option shall be equal to the quotient determined by dividing (x) the exercise price per share of Trikon Common Stock at which such Trikon Option was exercisable immediately prior to the Effective Time by (y) the Trikon Exchange Ratio, rounded up to the nearest whole cent. The conversion of any Trikon Options which are incentive stock options within the meaning of Section 422 of the Code, into options to purchase New Athletics Common Stock is intended to be made so as not to constitute a “modification” of such Trikon Options within the meaning of Section 424 of the Code. Continuous employment with Trikon or its subsidiaries shall be credited to the optionee for purposes of determining the vesting of all assumed Trikon Options after the Effective Time.

 

Section 2.4.2 Aviza Options . At the Effective Time, all unexercised and unexpired options to purchase shares of Aviza Common Stock (“ Aviza Options ”) outstanding immediately prior to the Effective Time under the Aviza Technology, Inc. 2003 Equity Incentive Plan or any other plan, agreement or arrangement listed on Section 2.4.2 of the Aviza Disclosure Schedule (collectively, the “ Aviza Stock Option Plans ”), whether or not then exercisable, shall be assumed by New Athletics. Section 2.4.2 of the Aviza Disclosure Schedule includes information with respect to any rights that provide for the acceleration or other changes in the vesting provisions or other terms under the Aviza Options or Aviza Stock Option Plans as a result of the Aviza Merger (either alone or in connection with additional or subsequent events). Each Aviza Option so assumed by New Athletics under this Agreement shall in all material respects continue to have, and be subject to, the same terms and conditions as set forth in the Aviza Stock Option Plan and any agreements thereunder governing such Aviza Option immediately prior to the Effective Time, except that (i) each Aviza Option shall be exercisable (or shall become exercisable in accordance with its terms) for that number of whole shares of New Athletics Common Stock equal to the product of (x) the number of shares of Aviza

 

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Common Stock that were issuable upon the exercise of such Aviza Option immediately prior to the Effective Time multiplied by (y) the Aviza Exchange Ratio, rounded down to the nearest whole number of shares of New Athletics Common Stock and (ii) the per share exercise price for the shares of New Athletics Common Stock issuable upon the exercise of such Aviza Option shall be equal to the quotient determined by dividing (x) the exercise price per share of Aviza Common Stock at which such Aviza Option was exercisable immediately prior to the Effective Time by (y) the Aviza Exchange Ratio, rounded up to the nearest whole cent. The conversion of any Aviza Options which are incentive stock options within the meaning of Section 422 of the Code, into options to purchase New Athletics Common Stock is intended to be made so as not to constitute a “modification” of such Aviza Options within the meaning of Section 424 of the Code. Continuous employment with Aviza or its subsidiaries shall be credited to the optionee for purposes of determining the vesting of all assumed Aviza Options after the Effective Time.

 

Section 2.5 Dissenting Shares . Notwithstanding anything in this Agreement to the contrary, shares of Aviza Stock, if any, issued and outstanding immediately prior to the Effective Time and held by a holder who has not voted in favor of the Aviza Merger and who has delivered a written demand for appraisal of such shares in accordance with Section 262 of the DGCL (a “ Dissenting Stockholder ”) shall not be converted into the right to receive shares of New Athletics Common Stock as provided in Section 2.1 hereof at or after the Effective Time, unless and until such holder fails to perfect or effectively withdraws or otherwise loses such holder’s right to appraisal under the DGCL. A Dissenting Stockholder may receive payment of the fair value of the shares of Aviza Stock issued and outstanding immediately prior to the Effective Time and held by such Dissenting Stockholder (“ Dissenting Shares ”) in accordance with the provisions of the DGCL, provided that such Dissenting Stockholder complies with Section 262 of the DGCL. At the Effective Time, all Dissenting Shares shall be cancelled and cease to exist and shall represent only the right to receive the fair value thereof in accordance with the DGCL. If, after the Effective Time, any Dissenting Stockholder fails to perfect or effectively withdraws or otherwise loses such Dissenting Stockholder’s right to appraisal, such Dissenting Stockholder’s Dissenting Shares shall thereupon be treated as if they had been converted, as of the Effective Time, into the right to receive shares of New Athletics Common Stock as provided in Section 2.1. Aviza shall give Trikon (i) prompt notice of any demands for appraisal, withdrawals of demands for appraisal and any other instruments served under the DGCL and (b) the opportunity to participate in all negotiations, proceedings or settlements with respect to demands for appraisal under the DGCL. Aviza shall not voluntarily make any payment with respect to any demands for appraisal and shall not, except with Trikon’s prior written consent, settle or offer to settle any such demands.

 

Article 3.

Representations and Warranties of Aviza

 

Except as set forth in the Disclosure Schedule delivered by Aviza to Trikon prior to the execution of this Agreement (the “ Aviza Disclosure Schedule ”), which identifies exceptions by specific Section references, Aviza hereby represents and warrants to Trikon as follows:

 

Section 3.1 Organization and Qualification; Subsidiaries . Aviza is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware.

 

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Each subsidiary of Aviza (each an “ Aviza Subsidiary ” and, collectively, the “ Aviza Subsidiaries ”) has been duly organized, and is validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, as the case may be. Each of Aviza and each Aviza Subsidiary has the requisite power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted. Each of Aviza and each Aviza Subsidiary is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its business makes such qualification, licensing or good standing necessary, except for such failures to be so qualified, licensed or in good standing that would not, individually or in the aggregate, reasonably be expected to have an Aviza Material Adverse Effect. Section 3.1 of the Aviza Disclosure Schedule sets forth a true and complete list of all of the Aviza Subsidiaries. None of Aviza or any Aviza Subsidiary holds an Equity Interest in any other person other than the Aviza Subsidiaries.

 

Section 3.2 Certificate of Incorporation and Bylaws; Corporate Books and Records . The copies of Aviza’s Third Amended and Restated Certificate of Incorporation (the “ Aviza Certificate ”) and Bylaws (the “ Aviza Bylaws ”) previously delivered to Trikon are complete and correct copies thereof as in effect on the date hereof. Aviza is not in violation of any of the provisions of the Aviza Certificate or the Aviza Bylaws. True and complete copies of all minute books of Aviza have been made available by Aviza to Trikon.

 

Section 3.3 Capitalization . The authorized capital stock of Aviza consists of Ten Million Twenty Thousand (10,020,000) shares of Aviza Preferred Stock, Ten Million (10,000,000) of which are designated Series A Preferred Stock and Twenty Thousand (20,000) of which are designated Series B Preferred Stock, and Seventeen Million (17,000,000) shares of Aviza Common Stock. As of the date hereof, (A) Five Million Eight Hundred Four Thousand Four Hundred Forty-Six (5,804,446) shares of Aviza Series A Preferred Stock were issued and outstanding, each of which was validly issued and fully paid, nonassessable and free of preemptive rights and convertible into one (1) share of Aviza Common Stock; (B) Twenty Thousand (20,000) shares of Aviza Series B Preferred Stock were issued and outstanding, each of which was validly issued and fully paid, nonassessable and free of preemptive rights; (C) Two Hundred Eighty Thousand One Hundred (280,100) shares of Aviza Common Stock were issued and outstanding, all of which were validly issued and fully paid, nonassessable and free of preemptive rights; (D) no shares of Aviza Stock were held in the treasury of Aviza or by the Aviza Subsidiaries; (E) One Million Nine Hundred Thirty-Three Thousand Five Hundred (1,933,500) shares of Aviza Common Stock were issuable (and such number was reserved for issuance) upon exercise of Aviza Options outstanding as of such date and (F) Three Million Five Hundred Fifty-Five Thousand Six Hundred (3,555,600) shares of Aviza Series A Preferred Stock were issuable (and such number was reserved for issuance) upon exercise of Aviza Warrants outstanding as of such date. Except for (A) Aviza Options to purchase One Million Nine Hundred Thirty-Three Thousand Five Hundred (1,933,500) shares of Aviza Common Stock and (B) Aviza Warrants to purchase Three Million Five Hundred Fifty-Five Thousand Six Hundred (3,555,600) shares of Aviza Series A Preferred Stock, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which Aviza or any Aviza Subsidiary is a party or by which Aviza or any Aviza Subsidiary is bound relating to the issued or unissued capital stock or other Equity Interests of Aviza or any Aviza Subsidiary, or securities convertible into or exchangeable for such capital stock or other Equity Interests, or obligating

 

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Aviza or any Aviza Subsidiary to issue or sell any shares of its capital stock or other Equity Interests, or securities convertible into or exchangeable for such capital stock of, or other Equity Interests in, Aviza or any Aviza Subsidiary. Since October 31, 2004, Aviza has not issued any shares of its capital stock, or securities convertible into or exchangeable for such capital stock or other Equity Interests, other than those shares of capital stock reserved for issuance as set forth in this Section 3.3. Aviza has previously provided Trikon with a true and complete list, as of the date hereof, of the prices at which all outstanding Aviza Options and Aviza Warrants may be exercised, the number of Aviza Options and Aviza Warrants outstanding at each such price and the vesting schedule for each Aviza Option. All shares of Aviza Stock subject to issuance pursuant to Aviza Options and Aviza Warrants, upon issuance on the terms and conditions specified in the instruments pursuant to which they are issuable, will be duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights. There are no outstanding contractual obligations of Aviza or any Aviza Subsidiary (A) restricting the transfer of; (B) affecting the voting rights of; (C) requiring the repurchase, redemption or disposition of, or containing any right of first refusal with respect to; (D) requiring the registration for sale of or (E) granting any preemptive or antidilutive right with respect to, any shares of Aviza Stock or any capital stock of, or other Equity Interests in, Aviza or any Aviza Subsidiary. Each outstanding share of capital stock of each Aviza Subsidiary is duly authorized, validly issued, fully paid, nonassessable and free of preemptive rights and is owned, beneficially and of record, by Aviza or another Aviza Subsidiary free and clear of all security interests, liens, claims, pledges, options, rights of first refusal, agreements, limitations on Aviza’s or such other Aviza Subsidiary’s voting rights, charges and other encumbrances of any nature whatsoever. There are no outstanding contractual obligations of Aviza or any Aviza Subsidiary to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any Aviza Subsidiary or any other person, other than guarantees by Aviza of any indebtedness or other obligations of any wholly owned Aviza Subsidiary.

 

Section 3.4 Authority .

 

Section 3.4.1 Aviza has all necessary corporate power and authority to execute and deliver this Agreement and each Ancillary Agreement to which it is a party, to perform its obligations hereunder and thereunder and to consummate the transactions contemplated by this Agreement and each Ancillary Agreement to be consummated by Aviza. The execution and delivery of this Agreement and each Ancillary Agreement to which it is a party by Aviza and the consummation by Aviza of the transactions contemplated hereby and thereby have been duly and validly authorized by all necessary corporate action of Aviza and no other corporate proceedings on the part of Aviza and no votes of Aviza’s stockholders are necessary to authorize this Agreement or any Ancillary Agreement or to consummate the transactions contemplated hereby and thereby other than, with respect to the Aviza Merger, as provided in Section 3.19 hereof. The Aviza Board has approved this Agreement and each Ancillary Agreement to which Aviza is a party, declared advisable the transactions contemplated hereby and thereby and has directed that this Agreement and each Ancillary Agreement and the transactions contemplated hereby and thereby be submitted to Aviza’s stockholders for adoption and approval. This Agreement and each Ancillary Agreement to which Aviza is a party has been duly authorized and validly executed and delivered by Aviza and constitutes a legal, valid and binding obligation of Aviza, enforceable against Aviza in accordance with its respective terms.

 

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Section 3.4.2 Aviza has taken all appropriate actions so that the restrictions on business combinations contained in Section 203 of the DGCL will not apply with respect to or as a result of this Agreement or any Ancillary Agreement and the transactions contemplated hereby and thereby, including the Aviza Merger, without any further action on the part of Aviza’s stockholders or the Aviza Board. No other state takeover statute or similar statute or regulation is applicable to or purports to be applicable to the Aviza Merger or any other transaction contemplated by this Agreement or any Ancillary Agreement.

 

Section 3.5 No Conflict; Required Filings and Consents .

 

Section 3.5.1 The execution and delivery of this Agreement and each Ancillary Agreement to which Aviza is party by Aviza does not, and the performance hereof and thereof by Aviza will not, (A) (assuming the Aviza stockholder approval set forth in Section 3.19 hereof is obtained) conflict with or violate any provision of the Aviza Certificate or the Aviza Bylaws or any equivalent organizational documents of any Aviza Subsidiary; (B) assuming that all consents, approvals, authorizations and permits described in Section 3.5.2 hereof have been obtained and all filings and notifications described in Section 3.5.2 hereof have been made and any waiting periods thereunder have terminated or expired, conflict with or violate any Law applicable to Aviza or any Aviza Subsidiary or by which any property or asset of Aviza or any Aviza Subsidiary is bound or affected or (C) require any consent or approval under, result in any breach of or any loss of any benefit under, constitute a change of control or default (or an event which with notice or lapse of time or both would become a default) under or give to others any right of termination, vesting, amendment, acceleration or cancellation of, or result in the creation of a lien or other encumbrance on any property or asset of Aviza or any Aviza Subsidiary pursuant to, any note, bond, mortgage, indenture, Contract, agreement, lease, license, Aviza Permit or other instrument or obligation, except, with respect to clauses (B) and (C), for any such conflicts, violations, breaches, defaults or other occurrences which would not, individually or in the aggregate, reasonably be expected to (1) prevent or materially delay consummation of the Aviza Merger; (2) otherwise prevent or materially delay performance by Aviza of any of its material obligations under this Agreement or any Ancillary Agreement to which it is a party or (3) have an Aviza Material Adverse Effect.

 

Section 3.5.2 The execution and delivery of this Agreement and each Ancillary Agreement to which Aviza is a party by Aviza does not, and the performance hereof and thereof by Aviza will not, require any consent, approval, authorization or permit of, or filing with or notification to, any Governmental Entity or any other person, except (A) under the Exchange Act, the Securities Act, any applicable Blue Sky Law, the HSR Act, foreign or supranational antitrust and competition laws and the filing and recordation of the Certificates of Merger as required by the DGCL and (B) where failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications to a person other than a Governmental Entity, would not, individually or in the aggregate, reasonably be expected to (x) prevent or materially delay consummation of the Aviza Merger; (y) otherwise prevent or materially delay performance by Aviza of any of its material obligations under this Agreement or any Ancillary Agreement to which it is a party or (z) have an Aviza Material Adverse Effect.

 

Section 3.6 Permits; Compliance With Law . Each of Aviza and each Aviza Subsidiary is in possession of all authorizations, licenses, permits, certificates, approvals and

 

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clearances of any Governmental Entity necessary for Aviza and each Aviza Subsidiary to own, lease and operate its properties or to carry on its respective businesses substantially as it is being conducted as of the date hereof (the “ Aviza Permits ”), and all such Aviza Permits are valid and in full force and effect, except where the failure to have, or the suspension or cancellation of, or failure to be valid or in full force and effect of, any of the Aviza Permits would not, individually or in the aggregate, reasonably be expected to (A) prevent or materially delay consummation of the Aviza Merger; (B) otherwise prevent or materially delay performance by Aviza of any of its material obligations under this Agreement or any Ancillary Agreement to which it is a party or (C) have an Aviza Material Adverse Effect. None of Aviza or any Aviza Subsidiary is in conflict with, or in default or violation of, (x) any Law applicable to Aviza or any Aviza Subsidiary or by which any property or asset of Aviza or any Aviza Subsidiary is bound or affected or (y) any Aviza Permits, except for any such conflicts, defaults or violations that would not, individually or in the aggregate, reasonably be expected to (A) prevent or materially delay consummation of the Aviza Merger; (B) otherwise prevent or materially delay performance by Aviza of any of its material obligations under this Agreement or any Ancillary Agreement to which it is a party or (C) have an Aviza Material Adverse Effect.

 

Section 3.7 Financial Statements .

 

Section 3.7.1 Section 3.7.1 of the Aviza Disclosure Schedule sets forth the audited consolidated balance sheets of Aviza and the consolidated Aviza Subsidiaries (or their predecessors) as of September 24, 2004 (the “ Aviza Balance Sheet ”), October 9, 2003 and December 31, 2002 and the related audited consolidated statements of operations and cash flows of Aviza and the consolidated Aviza Subsidiaries (or their predecessors) for the periods then ended (collectively, the “ Aviza Financial Statements ”). The Aviza Financial Statements were prepared in accordance with GAAP applied (except as may be indicated in the notes thereto) on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto), and each presented fairly in all material respects the consolidated financial position, results of operations and cash flows of Aviza and the consolidated Aviza Subsidiaries as of the respective dates thereof and for the respective periods indicated therein. The books and records of Aviza and each Aviza Subsidiary have been, and are being, maintained in accordance with applicable legal and accounting requirements.

 

Section 3.7.2 Except as and to the extent set forth on the Aviza Balance Sheet, including the notes thereto, none of Aviza or any consolidated Aviza Subsidiary has any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) that would be required to be reflected on a balance sheet or in notes thereto prepared in accordance with GAAP, except for liabilities or obligations incurred in the ordinary course of business since September 24, 2004 that would not, individually or in the aggregate, reasonably be expected to (A) prevent or materially delay consummation of the Aviza Merger; (B) otherwise prevent or materially delay performance by Aviza of any of its material obligations under this Agreement or any Ancillary Agreement to which it is a party or (C) have an Aviza Material Adverse Effect.

 

Section 3.7.3 Each of Aviza and the Aviza Subsidiaries maintains a system of internal accounting controls sufficient to provide reasonable assurance that (A) transactions are executed in accordance with management’s general or specific authorizations; (B) transactions are recorded as necessary to permit preparation of financial statements in

 

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conformity with GAAP and to maintain asset accountability; (C) access to assets is permitted only in accordance with management’s general or specific authorization and (D) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences.

 

Section 3.8 Disclosure Documents . The Registration Statement, the Proxy Statement and any Other Filings, and any amendments or supplements thereto, do not, and will not, at (A) the time the Registration Statement is declared effective; (B) the time the Proxy Statement (or any amendment thereof or supplement thereto) is first mailed to the stockholders of Trikon; (C) the time of the Trikon Stockholders’ Meeting and (D) the Effective Time, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. The representations and warranties contained in this Section 3.8 shall only apply to statements or omissions included in the Registration Statement, the Proxy Statement or any Other Filings based upon information furnished in writing by Aviza to New Athletics or Trikon specifically for use therein.

 

Section 3.9 Absence of Certain Changes or Events . Since September 24, 2004, except as specifically contemplated by this Agreement, Aviza and each Aviza Subsidiary has conducted its businesses in the ordinary course consistent with past practice and, since such date, there has not been (A) any Aviza Material Adverse Effect or an event or development that would, individually or in the aggregate, reasonably be expected to have an Aviza Material Adverse Effect; (B) any event or development that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the performance of this Agreement or any Ancillary Agreement to which it is a party by Aviza or (C) any action taken by Aviza or any Aviza Subsidiary during the period from September 25, 2004, through the date of this Agreement that, if taken during the period from the date of this Agreement through the Effective Time, would constitute a breach of Section 5.1 hereof.

 

Section 3.10 Employee Benefit Plans .

 

Section 3.10.1 Section 3.10.1 of Aviza Disclosure Schedule sets forth a true and complete list of each “employee benefit plan” as defined in Section 3(3) of ERISA (whether or not subject to ERISA) and any other plan, policy, program, practice or agreement (whether written or oral) providing compensation or other benefits to any current or former director, officer, employee or consultant (or to any dependent or beneficiary thereof) of Aviza or any Aviza ERISA Affiliate (including where those people are domiciled outside the United States), which are now, or were within the past three (3) years, maintained, sponsored or contributed to by Aviza or any Aviza ERISA Affiliate, or under which Aviza or any Aviza ERISA Affiliate has any obligation or liability, whether actual or contingent, including, without limitation, all incentive, bonus, deferred compensation, vacation, holiday, cafeteria, medical, disability, stock purchase, stock option, stock appreciation, phantom stock, restricted stock or other stock-based compensation plans, policies, programs or practices (each an “ Aviza Benefit Plan ”). Neither Aviza nor, to the knowledge of Aviza, or any other person has any express or implied commitment, whether legally enforceable or not, to materially modify, change or terminate any Aviza Benefit Plan, other than with respect to a modification, change or termination required by ERISA or the Code.

 

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With respect to each Aviza Benefit Plan, Aviza has delivered to Trikon true, correct and complete copies of (A) each Aviza Benefit Plan (or, if not written, a written summary of its material terms), including without limitation all plan documents, adoption agreements, trust agreements, insurance contracts or other funding vehicles and all amendments thereto; (B) all summaries and summary plan descriptions, including any summary of material modifications; (C) the three (3) most recent annual reports (Form 5500 series) filed with the IRS (or foreign equivalent) with respect to such Aviza Benefit Plan; (D) the three (3) most recent actuarial reports or other financial statements relating to such Aviza Benefit Plan; (E) the most recent determination or opinion letter, if any, issued by the IRS with respect to any Aviza Benefit Plan and any pending request for such a determination letter; (F) the three (3) most recent nondiscrimination tests performed under the Code (including 401(k) and 401(m) tests) for each Aviza Benefit Plan and (G) all filings made with any Governmental Entity, including but not limited any filings under the Voluntary Compliance Resolution or Closing Agreement Program or the Department of Labor Delinquent Filer Program.

 

Section 3.10.2 Each Aviza Benefit Plan has been administered in all material respects in accordance with its terms and all applicable Laws, including ERISA and the Code, and contributions required to be made under the terms of any of Aviza Benefit Plans as of the date of this Agreement have been timely made or, if not yet due, have been properly reflected on the Aviza Balance Sheet. With respect to the Aviza Benefit Plans, no event has occurred and, to the knowledge of Aviza, there exists no condition or set of circumstances in connection with which Aviza could be subject to any material liability (other than for routine benefit liabilities) under the terms of, or with respect to, such Aviza Benefit Plans, ERISA, the Code or any other applicable Law.

 

Section 3.10.3 (A) Each Aviza Benefit Plan which is intended to qualify under Section 401(a), Section 401(k), Section 401(m) or Section 4975(e)(7) of the Code has either received a favorable determination letter from the IRS as to its qualified status and each trust established in connection with any Aviza Benefit Plan which is intended to be exempt from federal income taxation under Section 501(a) of the Code is so exempt, and to Aviza’s knowledge no fact or event has occurred that could adversely affect the qualified status of any such Aviza Benefit Plan or the exempt status of any such trust; (B) to Aviza’s knowledge there has been no prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code and other than a transaction that is exempt under a statutory or administrative exemption) with respect to any Aviza Benefit Plan that could result in liability to Aviza or an Aviza ERISA Affiliate; (C) each Aviza Benefit Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without liability (other than liability for ordinary administrative expenses typically incurred in a termination event); (D) to the knowledge of Aviza, no suit, administrative proceeding, claim, demand, dispute, action or other litigation has been brought, is pending or is threatened or reasonably anticipated, against, in connection with, or with respect to any Aviza Benefit Plan, including any audit, inquiry or proceeding by the IRS or United States Department of Labor or any other Governmental Entity (other than routine benefits claims); (E) no Aviza Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) (“ Multiemployer Plan ”) or other pension plan subject to Title IV of ERISA and none of Aviza or any Aviza ERISA Affiliate has sponsored or contributed to or been required to contribute to a Multiemployer Plan or other pension plan subject to Title IV of ERISA; (F) no material liability under Title IV of ERISA or any other retirement benefit

 

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plan for the benefit of current or former Aviza employees which has as its sponsor or principal company a company that was not Aviza or an Aviza ERISA Affiliate has been incurred by Aviza or any Aviza ERISA Affiliate that has not been satisfied in full, and no condition exists that presents a material risk to Aviza or any Aviza ERISA Affiliate of incurring or being subject (whether primarily, jointly or secondarily) to a material liability thereunder; (G) none of the assets of Aviza or any Aviza ERISA Affiliate is, or may reasonably be expected to become, the subject of any lien arising under ERISA or Section 412(n) of the Code; (H) all Tax, annual reporting and other governmental filings required by ERISA and the Code or other applicable Laws have been timely filed with the appropriate Governmental Entity and all notices and disclosures have been timely provided to participants; (I) all contributions and payments to Aviza Benefit Plans in respect of employees based in the United States are deductible under Sections 162 or 404 of the Code; (J) no amount is subject to Tax as unrelated business taxable income under Section 511 of the Code and (K) no excise Tax could be imposed upon Aviza under Chapter 43 of the Code.

 

Section 3.10.4 With respect to each Aviza Benefit Plan required to be set forth in Section 3.10.1 of the Aviza Disclosure Schedule that is subject to Title IV or Part 3 of Title I of ERISA or Section 412 of the Code (other than a Multiemployer Plan), (A) no “reportable event” (within the meaning of Section 4043 of ERISA, other than an event for which the reporting requirements have been waived by regulations) has occurred or is expected to occur; (B) there was not an “accumulated funding deficiency” (within the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived, as of the most recently ended plan year of such Aviza Benefit Plan; (C) there is no “unfunded benefit liability” (within the meaning of Section 4001(a)(18) of ERISA, but excluding from the definition of “current value” of “assets” accrued but unpaid contributions) and each such plan has been maintained in compliance with the minimum funding standards of ERISA and the Code; (D) Aviza and each Aviza ERISA Affiliate has made when due any “required installments” within the meaning of Section 412(m) of the Code and Section 302(e) of ERISA, whichever may apply; (E) none of Aviza or any Aviza ERISA Affiliate is required to provide security under Section 401(a)(29) of the Code; (F) all premiums (and interest charges and penalties for late payment, if applicable) have been paid when due to the Pension Benefit Guaranty Corporation (“ PBGC ”); (G) each such plan is fully funded on a termination basis as of the Effective Time and (H) no filing has been made by Aviza or any Aviza ERISA Affiliate with the PBGC and no proceeding has been commenced by the PBGC to terminate any Aviza Benefit Plan and no condition exists which could constitute grounds for the termination of any such Aviza Benefit Plan by the PBGC.

 

Section 3.10.5 With respect to each Aviza Benefit Plan that is a Multiemployer Plan, (A) none of Aviza or any Aviza ERISA Affiliate has incurred any withdrawal liability under Section 4201 of ERISA nor does Aviza or any Aviza ERISA Affiliate expect to withdraw in a “complete withdrawal” or “partial withdrawal” within the meaning of Section 4203 and 4205 of ERISA; (B) all contributions required to be made to any such Aviza Benefit Plan have been timely made and (C) to the best knowledge of Aviza, no such Multiemployer Plan has been terminated or has been in or is about to be in reorganization under ERISA so as to result directly or indirectly in any increase in contributions under Section 4243 of ERISA or in liability contingent or otherwise to Aviza or any Aviza ERISA Affiliate. Neither Aviza nor any Aviza ERISA Affiliate has ever maintained, established, sponsored or participated in, or contributed to, any plan described in Section 413(c) of the Code or a “funded welfare plan” within the meaning of Section 418 of the Code. No Aviza Benefit Plan provides health benefits that are not fully insured through an insurance contract.

 

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Section 3.10.6 No amount that could be received (whether in cash, securities, property or the vesting of property), as a result of the consummation of the transactions contemplated by this Agreement or any Ancillary Agreement (either alone or upon the occurrence of any additional or subsequent events), by any employee, officer or director of Aviza or any Aviza ERISA Affiliate who is a “disqualified individual” (as such term is defined in proposed Treasury Regulation Section 1.280G-1) under any Aviza Benefit Plan, loan, employment, severance, termination or other agreement could be characterized as an “excess parachute payment” (as defined in Section 280G(b)(1) of the Code). Set forth in Section 3.10.6 of the Aviza Disclosure Schedule is the estimated maximum amount that could be paid to any disqualified individual as a result of the transactions contemplated by this Agreement or any Ancillary Agreement under all employment, severance and termination agreements, other compensation arrangements and Aviza Benefit Plans currently in effect.

 

Section 3.10.7 Except as required by Law, no Aviza Benefit Plan provides any retiree or post-employment medical or life insurance benefits to any person. No Aviza Benefit Plan is a voluntary employee benefit association under Section 501(a)(9) of the Code. Aviza and each Aviza ERISA Affiliate are in material compliance with (i) the requirements of the applicable health care continuation and notice provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“ COBRA ”), and the regulations (including proposed regulations) thereunder and any similar state Law and (ii) the applicable requirements of the Health Insurance Portability and Accountability Act of 1996, as amended (“ HIPAA ”), and the regulations (including proposed regulations) thereunder.

 

Section 3.10.8 With respect to any Aviza Benefit Plan for the benefit of employees, former employees or dependents thereof who perform services outside of the United States (each, an “ Aviza Foreign Plan ”): (A) if intended to qualify for special Tax treatment, the Aviza Foreign Plans meet all requirements for such treatment; (B) if intended to be funded and/or book-reserved, the Aviza Foreign Plans are fully funded and/or book reserved, as appropriate, based upon reasonable actuarial assumptions; (C) no material liability exists or reasonably could be imposed upon the assets of Aviza or any Aviza ERISA Affiliate by reason of such Aviza Foreign Plans; (D) no Aviza ERISA Affiliate is or has ever been the sponsor or principal employer to any Aviza Foreign Plan that is a plan, scheme or arrangement for the provision of any pension, superannuation, retirement (including on early retirement) or death benefits (including in the form of a lump sum) except for any such benefits that are sponsored by a Governmental Entity or required by statute (together referred to as “ Pension Benefits ”); (E) no employee or former employee of Aviza or any Aviza Subsidiary who is domiciled in the U.K., Germany or Holland (or any of their dependents) is entitled to, as a result of the Acquired Rights Directive 2001/23/EC or any national legislation implementing the Acquired Rights Directive 2001/23/EC, to any Pension Benefits that become payable before their normal retirement age as stated in their contract of employment or the benefit scheme itself and (F) the assets of each Aviza Foreign Plan that provided Pension Benefits are sufficient to satisfy its respective liabilities (current and contingent) as of the date of this Agreement or have been properly accrued in the Aviza Financial Statements in accordance with generally accepted accounting principles.

 

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Section 3.10.9 The execution of this Agreement and the consummation of the transactions contemplated hereby will not, to the knowledge of Aviza, cause a violation of Section 402 of the Sarbanes-Oxley Act of 2002.

 

Section 3.11 Labor and Other Employment Matters .

 

Section 3.11.1 Each of Aviza and each Aviza Subsidiary is in compliance, in all material respects, with all applicable Laws respecting labor, employment, fair employment practices, terms and conditions of employment, workers’ compensation, occupational safety, plant closings, and wages and hours. None of Aviza or any Aviza Subsidiary is liable for any payment to any trust or other fund or to any Governmental Entity, with respect to unemployment compensation benefits, social security or other benefits or obligations for employees (other than routine payments to be made in the ordinary course of business and consistent with past practice). Aviza and each Aviza Subsidiary has withheld and reported all amounts required by Law or by agreement to be withheld and reported with respect to wages, salaries and other payments to employees and is not liable for any arrears of wages or any Taxes or any penalty for failure to comply with any of the foregoing. To the knowledge of Aviza, there are no pending, threatened or reasonably anticipated claims or actions against Aviza under any workers’ compensation policy or long-term disability policy. Neither Aviza nor any Aviza Subsidiary has direct or indirect liability with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer, except as would not result in material liability to Aviza or any Aviza Subsidiary.

 

Section 3.11.2 Aviza has identified in Section 3.11.2 of the Aviza Disclosure Schedule and has made available to Trikon true and complete copies of (A) all severance and employment agreements with directors, officers or employees of or consultants to Aviza or any Aviza Subsidiary; (B) all severance programs and policies of Aviza and each Aviza Subsidiary with or relating to its employees and (C) all plans, programs, agreements and other arrangements of Aviza and each Aviza Subsidiary with or relating to its directors, officers, employees or consultants which contain change in control provisions. None of the execution and delivery of this Agreement or any Ancillary Agreement or the consummation of the transactions contemplated hereby or thereby will (either alone or in conjunction with any other event, such as termination of employment) (A) result in any payment (including, without limitation, severance, unemployment compensation, parachute or otherwise) becoming due to any director or any employee of Aviza or any Aviza Subsidiary or affiliate from Aviza or any Aviza Subsidiary or affiliate under any Aviza Benefit Plan or otherwise, other than continuation of health care coverage as required by COBRA or similar state Law; (B) significantly increase any benefits otherwise payable under any Aviza Benefit Plan or (C) result in any acceleration of the time of payment or vesting of any material benefits. No individual who is a party to an employment agreement listed in Section 3.11.2 of the Aviza Disclosure Schedule or any agreement incorporating change in control provisions with Aviza has terminated employment or been terminated, nor, to the knowledge of Aviza, has any event occurred that could give rise to a termination event, in either case under circumstances that has given, or could give, rise to a severance obligation on the part of Aviza under such agreement. Section 3.11.2 of the Aviza Disclosure Schedule sets forth Aviza’s best estimates of the amounts payable to the executives listed therein, as a result of the transactions contemplated by this Agreement, or any Ancillary

 

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Agreement, either alone or in connection with additional or subsequent events (including any cash-out or acceleration of options and restricted stock and any “gross-up” payments with respect to any of the foregoing), based on compensation data applicable as of the date of the Aviza Disclosure Schedule and the assumptions stated therein.

 

Section 3.11.3 To the knowledge of Aviza, there are no pending, threatened or reasonably anticipated claims (other than claims for benefits in the ordinary course), lawsuits or arbitrations which have been asserted or instituted against any Aviza Benefit Plan, any fiduciaries thereof with respect to their duties to Aviza Benefit Plans or the assets of any of the trusts under any of Aviza Benefit Plans which could reasonably be expected to result in any material liability of Aviza or any Aviza Subsidiary to the PBGC, the Department of Treasury, the Department of Labor or any Multiemployer Plan.

 

Section 3.11.4 No work stoppage or labor strike against Aviza or any Aviza ERISA Affiliate is, to the knowledge of Aviza, pending or threatened or reasonably anticipated. Aviza does not know of any activities or proceedings of any labor union to organize any employees of Aviza or any Aviza Subsidiary. To the knowledge of Aviza, there are no actions, suits, claims, labor disputes or grievances pending, threatened or reasonably anticipated relating to any labor, safety or discrimination matters involving any employee of Aviza or any Aviza Subsidiary, including, without limitation, charges of unfair labor practices or discrimination complaints, which, if adversely determined would, individually or in the aggregate, result in a material liability to Aviza or any Aviza Subsidiary. Neither Aviza nor any Aviza Subsidiary has engaged in any unfair labor practices within the meaning of the National Labor Relations Act. Neither Aviza nor any Aviza Subsidiaries are presently, or have been in the past, a party to, or bound by, any collective bargaining agreement or union contract with respect to employees and no collective bargaining agreement is being negotiated with respect to employees. Neither Aviza nor any Aviza Subsidiaries have incurred any material liability or material obligation under the Worker Adjustment and Retraining Notification Act or any similar state or local Law which remains unsatisfied.

 

Section 3.11.5 Labor and Other Employment Matters .

 

Section 3.11.5.1 Workforce . A true and complete list setting forth the name, length of service and date of birth of all employees of Aviza or an Aviza Subsidiary who are domiciled outside of the United States (“ Aviza Non-U.S. Employees ”) has been made available by Aviza to Trikon.

 

Section 3.11.5.2 Terms and Conditions of Engagement . True and complete copies of all documents containing the material terms and conditions of engagement in respect of each Aviza Non-U.S. Employee and the particulars of all employment policies (whether contractual or otherwise) that apply to Aviza Non-U.S. Employees have been made available by Aviza to Trikon. No European Aviza Subsidiary has a legal obligation or ex gratia arrangement to pay pensions, gratuities, superannuation, allowances or any other benefit to any person who is not Aviza Non-U.S. Employee.

 

Section 3.11.5.3 Transfer of Undertakings . During the twelve (12)-month period prior to the Effective Time, no European Aviza Subsidiary has been party to

 

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any relevant transfer as defined in the local legislation of each member state of the European Union implementing the Acquired Rights Directive 2001/23/EC (a “ Relevant Transfer ”). No Aviza Non-U.S. Employee (or former employee) has transferred to any European Aviza Subsidiary under a Relevant Transfer who at any time prior to the Relevant Transfer: (i) was a member of an occupational pension scheme or (ii) was a member of a scheme providing an interest in or option over shares where that scheme has not been materially replicated by the European Aviza Subsidiary.

 

Section 3.11.5.4 Employees Representatives and Collective Agreements . No European Aviza Subsidiary has, within the past two (2) years, recognized (or done any act which would reasonably be construed as recognition of) any trade union, whether voluntarily or not. No European Aviza Subsidiary is obligated to consult with any works council, staff association or any other employee labor representative. Each European Aviza Subsidiary has materially complied with all collective, workforce and other agreements and obligations affecting its relations with, or the conditions of service of its employees. Each European Aviza Subsidiary has at all times materially complied with its obligations to inform and/or consult with employee representatives of its employees.

 

Section 3.12 Tax Treatment . None of Aviza, any Aviza Subsidiary or, to the knowledge of Aviza, any of Aviza’s affiliates has taken or agreed to take any action that would prevent the Mergers, taken together, from qualifying as an exchange described in Section 351 of the Code and the regulations promulgated thereunder. To Aviza’s knowledge, there is no agreement, plan or other circumstance that would prevent the Mergers, taken together, from qualifying as an exchange described in Section 351 of the Code and the regulations promulgated thereunder.

 

Section 3.13 Contracts . None of Aviza or any Aviza Subsidiary is a party to or bound by any Contract (A) any of the benefits to any party of which will be increased, or the vesting of the benefits to any party of which will be accelerated, by the occurrence of any of the transactions contemplated by this Agreement or any Ancillary Agreement, or the value of any of the benefits to any party of which will be calculated on the basis of any of the transactions contemplated by this Agreement or any Ancillary Agreement or (B) which, as of the date hereof, (1) would be a “material contract” (as such term is defined in Item 601(b)(10) of Regulation S-K of the SEC); (2) which involves aggregate expenditures in excess of $250,000 (or, in the case of purchase orders and supply contracts, $500,000); (3) which involves annual expenditures in excess of $250,000 and is not cancelable within one year; (4) which contains any non-compete or exclusivity provisions with respect to any line of business or geographic area with respect to Aviza, any Aviza Subsidiary or any of Aviza’s current or future affiliates, or which restricts the conduct of any line of business by Aviza, any Aviza Subsidiary or any of Aviza’s current or future affiliates or any geographic area in which Aviza, any Aviza Subsidiary or any of Aviza’s current or future affiliates may conduct business, in each case in any material respect or (5) which would prohibit or materially delay the consummation of the Aviza Merger or any of the transactions contemplated by this Agreement or any Ancillary Agreement. Each Contract of the type described in this Section 3.13, whether or not set forth in Section 3.13 of the Aviza Disclosure Schedule, is referred to herein as an “ Aviza Material Contract .” Each Aviza Material Contract is valid and binding on Aviza and each Aviza Subsidiary that is a party thereto and, to Aviza’s knowledge, each other party thereto, and in full force and effect, and Aviza and

 

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each Aviza Subsidiary has in all material respects performed all obligations required to be performed by it to the date hereof under each Aviza Material Contract and, to Aviza’s knowledge, each other party to each Aviza Material Contract has in all material respects performed all obligations required to be performed by it under such Aviza Material Contract. None of Aviza or any Aviza Subsidiary knows of, or has received notice of, any violation or default under (or any condition which with the passage of time or the giving of notice would cause such a violation of or default under) any Aviza Material Contract or any other Contract to which it is a party or by which it or any of its properties or assets is bound. Section 3.13 of the Aviza Disclosure Schedule provides Aviza’s good faith estimate of the additional costs which will accrue to Aviza under the contracts described in clause (A) of this Section 3.13 as a result of the transactions contemplated by this Agreement or any Ancillary Agreement, and such estimate is, in the aggregate, accurate in all material respects.

 

Section 3.14 Litigation . Section 3.14 of the Aviza Disclosure Schedule sets forth, as of the date hereof, to the knowledge of Aviza, all suits, claims, actions, proceedings or investigations pending or threatened in writing against Aviza or any Aviza Subsidiary or for which Aviza or any Aviza Subsidiary is obligated to indemnify a third party. To the knowledge of Aviza, there are no suits, claims, actions, proceedings or investigations pending or threatened in writing against Aviza or any Aviza Subsidiary or for which Aviza or any Aviza Subsidiary is obligated to indemnify a third party that (1) has had or would, individually or in the aggregate, reasonably be expected to have an Aviza Material Adverse Effect or (2) challenges the validity or propriety, or seeks to prevent or materially delay consummation of the Aviza Merger or any other transaction contemplated by this Agreement or any Ancillary Agreement. None of Aviza or any Aviza Subsidiary is subject to any outstanding order, writ, injunction, decree or arbitration ruling, award or other finding which has had or would, individually or in the aggregate, reasonably be expected to (1) prevent or materially delay consummation of the Aviza Merger; (2) otherwise prevent or materially delay performance by Aviza of any of its material obligations under this Agreement or any Ancillary Agreement to which it is a party or (3) result in an Aviza Material Adverse Effect.

 

Section 3.15 Environmental Matters . Except as would not, individually or in the aggregate, reasonably be expected to have an Aviza Material Adverse Effect:

 

Section 3.15.1 No fact, circumstance or condition exists with respect to Aviza or any Aviza Subsidiary or any property currently or formerly owned, operated or leased by Aviza or any Aviza Subsidiary or any property to which Aviza or any Aviza Subsidiary arranged for the disposal or treatment of Hazardous Materials that would reasonably be expected to result in Aviza or any Aviza Subsidiary incurring any costs or liabilities under any Environmental Law.

 

Section 3.15.2 Aviza and each Aviza Subsidiary (A) is in compliance with all, and is not presently incurring and is not reasonably likely to actually incur any liability with respect to any violation of any, applicable Environmental Laws; (B) holds or has applied for all Environmental Permits necessary to conduct their current operations; (C) is in compliance with their respective Environmental Permits and (D) does not have knowledge of the release of any Hazardous Materials in, on, under or above any real property owned or leased by Aviza or any Aviza Subsidiary.

 

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Section 3.15.3 None of Aviza or any Aviza Subsidiary has received any written notice, demand, letter, claim or request for information alleging that Aviza or any Aviza Subsidiary may be in violation of, or is reasonably likely to incur liability under, any Environmental Law.

 

Section 3.15.4 None of Aviza or any Aviza Subsidiary (A) has entered into or agreed to any consent decree or order or is subject to any judgment, decree or judicial order relating to compliance with Environmental Laws, Environmental Permits or the investigation, sampling, monitoring, treatment, remediation, removal or cleanup of Hazardous Materials and, to the knowledge of Aviza, no investigation, litigation or other proceeding is pending or threatened in writing with respect thereto or (B) is an indemnitor in connection with any claim threatened or asserted in writing by any third-party indemnitee for any liability under any Environmental Law or relating to any Hazardous Materials.

 

Section 3.15.5 None of the real property owned or leased by Aviza or any Aviza Subsidiary is listed or, to the knowledge of Aviza, proposed for listing on the “National Priorities List” under CERCLA, as updated through the date hereof, or any similar state or foreign list of sites requiring investigation or cleanup.

 

Section 3.16 Intellectual Property .

 

Section 3.16.1 General. Section 3.16.1 of the Aviza Disclosure Schedule lists all of the Intellectual Property Rights owned by Aviza that Aviza has registered or has applied for registration with any Governmental Entity (including the United States Patent and Trademark Office). In the three (3)-year period immediately preceding the date of this Agreement, Aviza has not transferred ownership of any Intellectual Property Rights that were subject to a registration or application with any Governmental Entity. To the knowledge of Aviza, Aviza owns or has the valid and enforceable right to use, whether through ownership, licensing or otherwise, all Intellectual Property material to the businesses of Aviza and each Aviza Subsidiary as such businesses are conducted on the date hereof. No written claim of invalidity or conflicting ownership rights with respect to any material Intellectual Property owned or used by Aviza (“ Aviza Material Intellectual Property ,” and the Intellectual Property Rights therein, the “ Aviza Material Intellectual Property Rights ”) has been made by a third party against Aviza or any Aviza Subsidiary and no such Aviza Material Intellectual Property is, to the knowledge of Aviza, the subject of any pending or threatened action, suit, claim, investigation, arbitration or other proceeding. No person has given written notice to Aviza or any Aviza Subsidiary that the use of any Aviza Material Intellectual Property by Aviza or any Aviza Subsidiary or any of their licensees (under license from Aviza or any Aviza Subsidiary) is infringing, misappropriating or otherwise violating any third-party Intellectual Property Rights. To Aviza’s knowledge, Aviza’s making, using, selling, manufacturing, marketing, licensing, reproduction, distribution or publishing of its process, machine, manufacture or product has not involved and does not involve any infringement, misappropriation or violation of any Intellectual Property Rights of any third party. To Aviza’s knowledge, there exists no prior act or current conduct or use by Aviza, any Aviza Subsidiary or any third party that has materially affected, voided or invalidated any Aviza Material Intellectual Property. The execution, delivery and performance by Aviza of this Agreement and each Ancillary Agreement to which Aviza is a party and the consummation of the transactions contemplated hereby and thereby will not breach,

 

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violate or conflict with any instrument or agreement to which Aviza is a party concerning any Aviza Material Intellectual Property, and will not as a result of any such agreement or instrument to which Aviza is bound cause the impairment or invalidity of any Aviza Material Intellectual Property.

 

Section 3.16.2 Outbound and Inbound Licenses . Other than non-exclusive licenses granted in the ordinary course of business, Section 3.16.2 of the Aviza Disclosure Schedule accurately identifies each Contract pursuant to which (i) any person has been granted any license under, or otherwise has received or acquired any right (whether or not currently exercisable) or interest in, any Aviza Material Intellectual Property and (ii) Aviza or any Aviza Subsidiary has been granted any license under, or otherwise has received or acquired any right (whether or not currently exercisable) or interest in, any material third-party Intellectual Property. Following the Closing Date, the Aviza Surviving Corporation will be permitted to exercise all of Aviza’s and the Aviza Subsidiaries’ rights under such Contracts to the same extent Aviza and the Aviza Subsidiaries would have been able to had the transactions contemplated by this Agreement not occurred. Aviza is not bound by, and no Aviza Material Intellectual Property is subject to, any Contract containing any covenant or other provision that in any way limits or restricts the ability of Aviza or any Aviza Subsidiary to use, exploit, assert or enforce any Aviza Material Intellectual Property anywhere in the world.

 

Section 3.16.3 Neither this Agreement nor the transactions contemplated by this Agreement will result in (i) Aviza’s granting to any third party, forfeiting or terminating any right to or with respect to any Aviza Material Intellectual Property; (ii) Aviza’s being bound by, or subject to, any non-compete or other restriction on the operation or scope of its business or (iii) Aviza’s being obligated to pay any royalties or other amounts to any third party in excess of those payable by Aviza prior to the Closing.

 

Section 3.16.4 Aviza Material Intellectual Property . Aviza exclusively owns, or has the license to use, all right, title, and interest to and in Aviza Material Intellectual Property free and clear of any encumbrances (other than non-exclusive licenses granted in the ordinary course of business). Aviza and its Subsidiaries have taken reasonable steps to protect their right, title and interest in all Aviza Material Intellectual Property in the ordinary course of business. Without limiting the generality of the foregoing: (i) Aviza and the Aviza Subsidiaries have taken reasonable steps to maintain the confidentiality of and otherwise protect and enforce their rights in all material proprietary information that Aviza or any Aviza Subsidiary holds, or purports to hold, as a trade secret; (ii) all documents and instruments necessary to perfect and maintain the rights of Aviza or any Aviza Subsidiary in Aviza Material Intellectual Property Rights have been validly executed, delivered, and filed in a timely manner with the appropriate Governmental Entity except where Aviza has made a reasonable business judgment not to maintain or perfect such Aviza Material Intellectual Property Rights through registration with a Governmental Entity; (iii) no funding, facilities, or personnel of any Governmental Entity were used, directly or indirectly, to develop or create, in whole or in part, any Aviza Material Intellectual Property and (iv) Aviza or any Aviza Subsidiary is not and never was a member or promoter of, or a contributor to, any industry standards body or similar organization that could require or obligate Aviza or any Aviza Subsidiary to grant or offer to any other person any license or right to any Aviza Material Intellectual Property Rights. To Aviza’s knowledge, no person has infringed, misappropriated, or otherwise violated, and no person is (or is suspected to be) currently infringing, misappropriating or otherwise violating any Aviza Material Intellectual Property Rights.

 

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Section 3.16.5 Employees and Contractors . Each person who is or was an employee or contractor of Aviza or any Aviza Subsidiary and who is or was involved in the creation or development of any Aviza Material Intellectual Property has signed a valid, enforceable agreement containing an assignment of Intellectual Property to Aviza and appropriate confidentiality provisions, except to the extent such an agreement is not permitted by relevant Law. To Aviza’s knowledge, no current employee of Aviza or any Aviza Subsidiary is (and no former employee of Aviza or any Aviza Subsidiary was, during the term of his or her employment with Aviza or any Aviza Subsidiary) bound by or otherwise subject to any Contract restricting him or her from performing his or her duties for Aviza or any Aviza Subsidiary or (B) in breach of any Contract with any former employer or other person concerning Intellectual Property rights or confidentiality.

 

Section 3.16.6 Bugs . To Aviza’s knowledge, none of the software (including firmware and other software embedded in hardware devices) owned, developed (or currently being developed), used, marketed, distributed, licensed or sold by Aviza or any Aviza Subsidiary contains any bug, defect (including any material deviation from such software’s written specifications) or error that materially and adversely affects the use, functionality or performance of such software or any product or system containing or used in conjunction with such software.

 

Section 3.17 Taxes .

 

Section 3.17.1 Aviza and each Aviza Subsidiary has timely filed all Tax Returns with the appropriate taxing authority required to be filed, taking into account any extensions of time within which to file such Tax Returns, and all such Tax Returns were complete and correct in all material respects. All Taxes due and payable by any of Aviza and the Aviza Subsidiaries (whether or not shown due on such filed Tax Returns) have been paid, and the unpaid Taxes of Aviza and the Aviza Subsidiaries did not, as of the dates of the most recent Aviza Financial Statements, exceed the reserve for Tax liability (excluding any reserve for deferred Taxes established to reflect timing differences between book and Tax income) set forth on the face of the balance sheets (rather than in any notes thereto) contained in such Aviza Financial Statements, and none of Aviza or any Aviza Subsidiary has incurred any liability for Taxes since the date of the most recent Aviza Financial Statements other than in the ordinary course of business, in each case subject to such exceptions as would not be reasonably expected to be material.

 

Section 3.17.2 Except as would not be reasonably expected to be material: (A) no deficiencies for Taxes with respect to any of Aviza and the Aviza Subsidiaries have been claimed, proposed or assessed by a Tax authority or other Governmental Entity; (B) to the knowledge of Aviza, there are no pending or threatened audits, assessments, investigations or other actions for or relating to any liability in respect of Taxes of any of Aviza and the Aviza Subsidiaries; (C) there are no matters under discussion with any Governmental Entity, or known to Aviza or any Aviza Subsidiary with respect to Taxes that are likely to result in an additional Liability for Taxes with respect to any of Aviza and the Aviza Subsidiaries and (D) no claim has

 

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ever been made by an authority in a jurisdiction where any of Aviza or Aviza Subsidiaries does not file Tax Returns that it is or may be subject to taxation by that jurisdiction. Neither Aviza nor any of the Aviza Subsidiaries nor any predecessor has waived any statute of limitations in respect of Taxes or agreed to any extension of time with respect to a Tax assessment or deficiency, nor has any request been made in writing for any such extension or waiver.

 

Section 3.17.3 There are no Tax liens upon any asset of Aviza or any Aviza Subsidiary except liens for current Taxes not yet due and payable and liens for Taxes that are being contested in good faith by appropriate proceedings and for which adequate reserves, if required in accordance with GAAP, have been provided in Aviza’s most recent Aviza Financial Statements, subject to such exceptions as would not be reasonably expected to be material.

 

Section 3.17.4 Aviza and each Aviza Subsidiary has withheld and paid all Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor, creditor, stockholder or other third party.

 

Section 3.17.5 None of Aviza or any Aviza Subsidiary is liable for the Taxes of any person (other than Aviza or the Aviza Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law, including any arrangement for group Tax relief within a jurisdiction), as a transferee or successor, by contract or otherwise which could reasonably be expected to be material. None of Aviza or any Aviza Subsidiary has ever been a member of any affiliated group (within the meaning of Section 1504(a) of the Code) filing a consolidated federal income Tax Return (other than a group the common parent of which was Aviza).

 

Section 3.17.6 Aviza has not been a United States real property holding corporation within the meaning of Section 897(c)(2) of the Code during the applicable period described in Section 897(c)(1)(A)(ii) of the Code.

 

Section 3.17.7 None of Aviza or any Aviza Subsidiary is a party to any contract, plan or arrangement, under which it is obligated to make or to provide, or could be become obligated to make or to provide, a payment or benefit that would be nondeductible under Section 280G of the Code.

 

Section 3.17.8 None of Aviza or any Aviza Subsidiary is a party to, is bound by or has any obligation under any Tax sharing, Tax allocation or Tax indemnity agreement or similar contract or arrangement.

 

Section 3.17.9 Neither Aviza nor any Aviza Subsidiary has been a party to any distribution in which the parties to such distribution treated the distribution as one to which Section 355 of the Code is applicable.

 

Section 3.17.10 Neither Aviza nor any Aviza Subsidiary (A) is a partner for Tax purposes with respect to any joint venture, partnership, or other arrangement or contract which is treated as a partnership for Tax purposes; (B) owns a single member limited liability company which is treated as a disregarded entity; (C) is a stockholder of a “controlled foreign corporation” as defined in Section 957 of the Code (or any similar provision of state, local or foreign Law; (D) is a “personal holding company” as defined in Section 542 of the Code (or any similar provision of state, local or foreign Law) or (E) is a “passive foreign investment company” within the meaning of Section 1297 of the Code.

 

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Section 3.17.11 Neither Aviza nor any Aviza Subsidiary has engaged in a transaction that is the same as or substantially similar to one of the types of transactions that the IRS has determined to be a Tax avoidance transaction and identified by notice, regulation or other form of published guidance as a listed transaction, as set forth in Treasury Regulation Section 1.6011-4(b)(2).

 

Section 3.17.12 Neither Aviza nor any Aviza Subsidiary has or has had a permanent establishment in any foreign country, as defined in any applicable Tax treaty or convention between the United States and such foreign country.

 

Section 3.17.13 Neither Aviza nor any Aviza Subsidiary has agreed or is required to make any adjustment under Section 481(a) of the Code as a result of any change in method of accounting.

 

Section 3.18 Insurance . Aviza maintains insurance coverage with reputable insurers, or maintains self-insurance practices, in such amounts and covering such risks as are in accordance with normal industry practice for companies engaged in businesses similar to that of Aviza (taking into account the cost and availability of such insurance). Section 3.18 of the Aviza Disclosure Schedule sets forth a list of all of Aviza’s insurance policies.

 

Section 3.19 Vote Required . The affirmative vote of each of (A) the holders of at least sixty-six and two-thirds percent (66  ² / 3 %) of the outstanding shares of Aviza Series A Preferred Stock and (B) the holders of a majority in voting power of the outstanding shares of Aviza Series A Preferred Stock and Aviza Common Stock, voting together as a single class on an as-converted basis, are the only votes of the holders of Aviza Stock or other Equity Interests of Aviza necessary to adopt this Agreement and approve the Aviza Merger.

 

Section 3.20 Brokers . Except as set forth on Section 3.20 of the Aviza Disclosure Schedule, no broker, finder or investment banker (other than the Aviza Financial Advisor) is entitled to any brokerage, finder’s or other fee or commission in connection with the Aviza Merger based upon arrangements made by or on behalf of Aviza or any Aviza Subsidiary. Aviza has heretofore made available to Trikon a true and complete copy of all agreements between Aviza and the Aviza Financial Advisor pursuant to which such firm would be entitled to any payment relating to the Aviza Merger or any other transaction contemplated by this Agreement or any Ancillary Agreement.

 

Section 3.21 Real Property .

 

Section 3.21.1 Section 3.21.1 of the Aviza Disclosure Schedule sets forth a complete and accurate list of all real property currently or previously owned by Aviza or any Aviza Subsidiary (collectively, the “ Aviza Owned Real Property ”). Except as set forth on Section 3.21.1 of the Aviza Disclosure Schedule, neither Aviza nor any Aviza Subsidiary owns or has ever owned any real property. Aviza or an Aviza Subsidiary owns all of the Aviza Owned Real Property free and clear of all Encumbrances, other than Permitted Encumbrances.

 

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Section 3.21.2 Section 3.21.2 of the Aviza Disclosure Schedule sets forth a complete and accurate list of all leases, licenses and other agreements to which Aviza or any Aviza Subsidiary is a party pertaining to the use or occupancy of any real property by Aviza or any Aviza Subsidiary (collectively, the “ Aviza Leases ,” the subject premises thereof, the “ Aviza Leased Real Property ” and, together with the Aviza Owned Property, the “ Aviza Real Property ”). Aviza has provided Trikon with a true and complete copy of each Aviza Lease. Each of Aviza and the Aviza Subsidiaries has complied in all material respects with the material terms of the Aviza Leases to which it is a party and under which it is currently in occupancy and enjoys peaceful and undisturbed possession of such Aviza Leased Real Property under the Aviza Leases. Neither Aviza nor any Aviza Subsidiary has transferred, mortgaged or assigned any interest in any Aviza Lease, nor has Aviza or any Aviza Subsidiary subleased or otherwise granted rights of use or occupancy of any Aviza Leased Real Property to any other person. Each Aviza Lease is in full force and effect and no material breach by Aviza or any Aviza Subsidiary exists under any Aviza Lease.

 

Section 3.21.3 Each of the plants, buildings, structures and facilities located on the Aviza Owned Real Property is in reasonably good repair and operating condition in all material respects, ordinary wear and tear excepted. To the knowledge of Aviza, there are no pending or threatened activities of any Governmental Entity either planned, in process or completed which would reasonably be expected to give rise to any material special assessment against any Aviza Owned Real Property.

 

Article 4.

Representations and Warranties of Trikon

 

Except as set forth in the Disclosure Schedule delivered by Trikon to Aviza prior to the execution of this Agreement (the “ Trikon Disclosure Schedule ”), which identifies exceptions by specific Section references, Trikon hereby represents and warrants to Aviza as follows:

 

Section 4.1 Organization and Qualification; Subsidiaries . Trikon is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware. Each subsidiary of Trikon (each a “ Trikon Subsidiary ” and, collectively, the “ Trikon Subsidiaries ”) has been duly organized, and is validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization, as the case may be. Each of Trikon and each Trikon Subsidiary has the requisite power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being conducted. Each of Trikon and each Trikon Subsidiary is duly qualified or licensed to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its business makes such qualification, licensing or good standing necessary, except for such failures to be so qualified, licensed or in good standing that would not, individually or in the aggregate, reasonably be expected to have a Trikon Material Adverse Effect. Section 4.1 of the Trikon Disclosure Schedule sets forth a true and complete list of all of the Trikon Subsidiaries. None of Trikon or any Trikon Subsidiary holds an Equity Interest in any other person other than the Trikon Subsidiaries.

 

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Section 4.2 Certificate of Incorporation and Bylaws; Corporate Books and Records . The copies of Trikon’s Certificate of Incorporation (the “ Trikon Certificate ”) and Bylaws (the “ Trikon Bylaws ”) that are listed as exhibits to Trikon’s Annual Report on Form 10-K for the fiscal year ended December 31, 2003 (the “ Trikon Form 10-K ”) are complete and correct copies thereof as in effect on the date hereof. Trikon is not in violation of any of the provisions of the Trikon Certificate or the Trikon Bylaws. True and complete copies of all minute books of Trikon and each Trikon Subsidiary have been made available by Trikon to Aviza.

 

Section 4.3 Capitalization . The authorized capital stock of Trikon consists of Twenty Million (20,000,000) shares of preferred stock, par value $0.001 per share, of Trikon (the “ Trikon Preferred Stock ” and, together with the Trikon Common Stock, the “ Trikon Stock ”) and Fifty Million (50,000,000) shares of Trikon Common Stock. As of the date hereof, (A) no shares of Trikon Preferred Stock were issued and outstanding; (B) Fifteen Million Seven Hundred Fifty-Four Thousand Nine Hundred Eighty-Five (15,754,985) shares of Trikon Common Stock were issued and outstanding, all of which were validly issued, fully paid, nonassessable and free of preemptive rights; (C) no shares of Trikon Preferred Stock or Trikon Common Stock were held in the treasury of Trikon or by the Trikon Subsidiaries; (D) One Million Five Hundred Forty-Nine Thousand Two Hundred Sixty-Three (1,549,263) shares of Trikon Common Stock were issuable (and such number was reserved for issuance) upon exercise of Trikon Options outstanding as of such date and (E) Four Hundred Ninety-Five Thousand Ninety-Three (495,093) shares of Trikon Common Stock were issuable (and such number was reserved for issuance) upon exercise of Trikon Warrants outstanding as of such date. Except for (A) Trikon Options to purchase One Million Five Hundred Forty-Nine Thousand Two Hundred Sixty-Three (1,549,263) shares of Trikon Common Stock and (B) Trikon Warrants to purchase Four Hundred Ninety-Five Thousand Ninety-Three (495,093) shares of Trikon Common Stock, there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which Trikon or any Trikon Subsidiary is a party or by which Trikon or any Trikon Subsidiary is bound relating to the issued or unissued capital stock or other Equity Interests of Trikon or any Trikon Subsidiary, or securities convertible into or exchangeable for such capital stock or other Equity Interests, or obligating Trikon or any Trikon Subsidiary to issue or sell any shares of its capital stock or other Equity Interests, or securities convertible into or exchangeable for such capital stock of, or other Equity Interests in, Trikon or any Trikon