FIRST AMENDMENT TO ASSET PURCHASE
AGREEMENT
This Amendment to
Asset Purchase Agreement (this “Amendment”) is dated
October 5 2006, by and among Lam Research Corporation, a Delaware
corporation (“LRC”), and/or one or more of its
designated affiliates (collectively, “Buyer”), Bullen
Ultrasonics, Inc., an Ohio corporation (“Company”),
Eaton 122 Ltd., an Ohio limited liability company
(“E122”), Bullen Semiconductor (Suzhou) Co., Ltd., a
wholly foreign owned enterprise established in Suzhou New District,
Suzhou, Jaingsu, PRC (“Suzhou) (Company, E122 and Suzhou are
sometimes referred to as “Seller” individually or
“Sellers” collectively), Mary A. Bullen, a resident of
Camden, Ohio (“MB”) and Vicki A. Brown, a resident of
Eaton, Ohio (“VB”) (Company, E122, Suzhou, MB and VB
are referred to herein as “Seller Parties”
collectively, and “Seller Party”
individually).
Buyer and Seller
Parties are parties to that certain Asset Purchase Agreement, dated
October 5, 2006 (the “Agreement”), pursuant to which
Buyer has agreed to purchase, and Seller Parties have agreed to
sell, certain assets of Company, E122 and Suzhou. Capitalized terms
used in this Amendment and not otherwise defined herein shall have
the meanings assigned to them in the Agreement.
Buyer and Seller
Parties mutually acknowledge that, due to certain Chinese Legal
Requirements, the required Governmental Authorizations necessary
for the purchase by Buyer and the sale by Suzhou of the Assets of
Suzhou, as contemplated by the Agreement, cannot be obtained prior
to the date Buyer and Seller Parties originally intended to close
the purchase and sale transactions contemplated by the
Agreement.
Buyer and Seller
Parties desire to amend the Agreement as set forth herein such
that, among other things, the closing of the purchase and sale of
the Assets of Company and E122 and the closing of the purchase and
sale of the Assets of Suzhou, each as contemplated in the
Agreement, will be bifurcated and will take place in separate
closings on separate dates.
NOW THEREFORE, in
consideration of the foregoing and the promises, covenants and
agreements set forth herein and in the Agreement, the parties,
intending to be legally bound, agree as follows:
1. The closing
of the purchase and sale of the Assets of Company and E122 (the
“US Assets”) (the “US Closing”), and the
closing of the purchase and sale of the Assets of Suzhou (the
“Suzhou Assets”) (the “Suzhou Closing”),
shall occur in separate closings. The term “Closing
Date,” when used in the Agreement, shall mean the US Closing
with respect to the closing of the purchase and sale of the US
Assets and shall mean the Suzhou Closing with respect to the
closing of the purchase and sale of the Suzhou Assets.
2. The US
Closing shall take place as provided for in and in accordance with
Section 2.6 of the Agreement, provided , however
, the conditions set forth in Section 7.15 of the Agreement
shall not be conditions precedent to Buyer’s obligation to
purchase the US Assets and the US
THE SYMBOL
[***] IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN
OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL
TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED
PORTION.
Closing. The
conditions set forth in Section 7.15 of the Agreement shall be
conditions precedent to the Buyer’s obligation to purchase
the Suzhou Assets and the Suzhou Closing.
3. The Suzhou
Closing shall take place within five (5) Business Days after
the satisfaction or waiver, in accordance with the terms and
provisions of the Agreement, of each of the conditions precedent of
Buyer and Seller Parties, as they relate to the Suzhou Assets, set
forth in Sections 7 and 8, respectively, specifically
including the satisfaction of the conditions precedent set forth in
Section 7.15 of the Agreement. Without limiting the foregoing,
a breach or default of the Seller Parties solely with respect the
US Assets and/or the representations and warranties related thereto
following the US Closing, shall not be deemed a breach of the
conditions of the Suzhou Closing.
4. The purchase
price for the Suzhou Assets shall be Two Million Five Hundred
Thousand Dollars $2,500,000, payable in rmnb to the extent required
by Chinese Legal Requirements (the “Suzhou Assets Purchase
Price”), which shall be paid by wire transfer on the date of
the Suzhou Closing to an account specified in writing by the
Selling Parties’ Representative. The amount of the Suzhou
Assets Purchase Price shall be deducted from, and shall reduce on a
dollar-for-dollar basis, the amount set forth in
Section 2.7(b)(i) to be paid to Company. The Buyer and Seller
Parties agree that the amount of the Suzhou Assets Purchase Price
shall not affect, in any respect, the amounts set forth in
Sections 2.7(b)(ii) — (v).
5.
Sections 9.1(f) and (g) are hereby amended to grant to
each of Buyer and Seller Parties the right to terminate the
Agreement, subject to the proviso that the terminating party is not
in material Breach of the Agreement, if the Suzhou Closing has not
occurred on or prior to October 31, 2007, provided ,
however , such extended termination right shall only apply
with respect
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