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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM 10-K/A
AMENDMENT NO. 1
/X/ ANNUAL REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934 [Fee Required]
For the fiscal year ended December 31, 1997
/ / TRANSITION REPORT UNDER SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934 [No Fee Required]
Commission file number: 0-21321
CYMER, INC.
(Name of Registrant as specified in its charter)
NEVADA 33-0175463
------------------------------- -----------------------------------
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
16750 VIA DEL CAMPO COURT, SAN DIEGO, CA 92127
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number: (619) 451-7300
Securities registered pursuant to Section 12(b) of the Act: NONE
Securities registered pursuant to Section 12(g) of the Act: COMMON STOCK, $.001
PAR VALUE
Check whether the Registrant (1) filed all reports required to be filed by
Section 13 or 15(d) of the Exchange Act during the past 12 months (or for
such shorter period that the registrant was required to file such reports),
and (2) has been subject to the filing requirements for the past 90 days.
Yes X No
Check if disclosure of delinquent filers in response to Item 405 of
Regulation S-K is not contained in this form, and no disclosure will be
contained to the best of Registrant's knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form
10-K or any amendment to this Form 10-K. [X]
The aggregate market value of voting stock held by non-affiliates of the
Registrant on July 24, 1998 was approximately $452,833,268 based upon the
last sale price reported for such date on the Nasdaq National Market. On
that date, 28,625,871 shares of Common Stock, $.001 par value, were
outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the Registrant's Proxy Statement for Registrant's Annual Meeting
of Stockholders held on May 15, 1998 have been incorporated by reference into
Part III.
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CYMER, INC.
1997 FORM 10-K/A
AMENDMENT NO. 1
TABLE OF CONTENTS
PAGE
PART IV
ITEM 14. Exhibits, Financial Statement Schedules and Reports on Form 8-K.....3
SIGNATURE.....................................................................7
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PART IV
ITEM 14. EXHIBITS, FINANCIAL STATEMENT SCHEDULES, AND REPORTS ON FORM 8-K
(a) The following documents are filed as part of, or incorporated by
reference into, this Annual Report on Form 10-K:
(1) FINANCIAL STATEMENTS. The following Consolidated Financial
Statements of Cymer, Inc. and Independent Auditors' Report are included in
a separate section of this Report beginning on page F-1:
<TABLE>
DESCRIPTION PAGE NUMBER
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<S> <C>
Independent Auditors' Report . . . . . . . . . . . . . . . . . . . F-1
Consolidated Balance Sheets as of December 31, 1996 and 1997 . . . F-2
Consolidated Statements of Income for the Years Ended December 31,
1995, 1996 and 1997 . . . . . . . . . . . . . . . . . . . . . . . . F-3
Consolidated Statements of Stockholders' Equity (Deficit) for the
Years Ended December 31, 1995, 1996 and 1997 . . . . . . . . . . . F-4
Consolidated Statements of Cash Flows for the Years Ended
December 31, 1995, 1996 and 1997 . . . . . . . . . . . . . . . . . F-5
Notes to Consolidated Financial Statements . . . . . . . . . . . . F-7
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(2) FINANCIAL STATEMENT SCHEDULES. All financial statement
schedules have been omitted because the required information is not
applicable or not present in amounts sufficient to require submission of
the schedule, or because the information required is included in the
consolidated financial statements or the notes thereto.
(3) EXHIBITS. The exhibits listed under Item 14(c) hereof are filed
with, or incorporated by reference into, this Annual Report on Form 10-K.
(b) REPORTS ON FORM 8-K. No reports on Form 8-K were filed by Registrant
during the fourth quarter of the fiscal year ended December 31, 1997.
(c) EXHIBITS. The following exhibits are filed as part of, or
incorporated by reference into, this Annual Report on Form 10-K:
3.1 Amended and Restated Articles of Incorporation of Registrant
(incorporated herein by reference to Exhibit 3.1 to the
Registrant's Registration Statement on Form S-1 (as amended)
no. 333-08383).
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3.2 Bylaws of Registrant (incorporated herein by reference to
Exhibit 3.4 to the Registrant's Registration Statement on
Form S-1 (as amended) no. 333-08383).
4.1 Preferred Shares Rights Agreement, dated as of February 13,
1998 between the Company and ChaseMellon Shareholder
Services, L.L.C. (incorporated herein by reference to
Exhibit 1 to the Registrant's Form 8-A, dated February 20,
1998).
4.2 Registration Rights Agreement, dated as of August 6, 1997, by
and among the Company, Morgan Stanley & Co. Incorporated and
Montgomery Securities (incorporated herein by reference to
Exhibit 4.2 to the Registrant's Form 8-K, dated August 6,
1997).
4.3 Indenture, dated as of August 6, 1997, by and among the
Company and State Street Bank and Trust Company of
California, N.A., as trustee thereunder (incorporated herein
by reference to Exhibit 4.1 to the Registrant's Form 8-K,
dated August 6, 1997).
10.1 Form of Indemnification Agreement with Directors and Officers
(incorporated herein by reference to Exhibit 10.1 to the
Registrant's Registration Statement on Form S-1 (as amended)
no. 333-08383).
10.2 Standard Industrial Lease -- Multi-Tenant, dated August 19,
1991, by and between Frankris Corporation and the Company
(incorporated herein by reference to Exhibit 10.15 to the
Registrant's Registration Statement on Form S-1 (as amended)
no. 333-08383).
10.3 Master Lease Agreement, dated April 23, 1996, between Tokai
Financial Services and the Company (incorporated herein by
reference to Exhibit 10.19 to the Registrant's Registration
Statement on Form S-1 (as amended) no. 333-08383).
10.4 Single-Tenant Industrial Lease, dated December 19, 1996, by
and between AEW/LBA Acquisition Co. II, LLC and the Company
(incorporated herein by reference to Exhibit 10.20 to the
Registrant's Annual Report on Form 10K filed for the year
ended December 31, 1996).
10.5 Patent License Agreement, dated October 13, 1989, by and
between the Company and Patlex Corporation (incorporated
herein by reference to Exhibit 10.13 to the Registrant's
Registration Statement on Form S-1 (as amended) no.
333-08383).
10.6 Contract Manufacturing Agreement -- Lithography Laser, dated
August 28, 1992, by and between the Company and Seiko
Instruments Inc. (incorporated herein by reference to
Exhibit 10.16 to the Registrant's Registration Statement on
Form S-1 (as amended) no. 333-08383).
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10.7 Product License and Manufacturing Agreement -- High Power
Laser, dated August 28, 1992, by and between the Company and
Seiko Instruments Inc. (incorporated herein by reference to
Exhibit 10.17 to the Registrant's Registration Statement on
Form S-1 (as amended) no. 333-08383).
10.8 Agreement, dated December 14, 1994, between the Company and
EO Technics Co., Ltd. (incorporated herein by reference to
Exhibit 10.18 to the Registrant's Registration Statement on
Form S-1 (as amended) no. 333-08383).
10.9 Loan Agreement, dated August 15, 1991, by and between
Mitsubishi International Corporation and the Company
(incorporated herein by reference to Exhibit 10.14 to the
Registrant's Registration Statement on Form S-1 (as amended)
no. 333-08383).
10.10 Loan Agreement, dated as of December 8, 1997, by and among
Silicon Valley Bank and Bank of Hawaii, as co-lenders, and
the Company and Cymer Japan, Inc., as borrowers.
10.11 Amendment to Loan Agreement, dated as of April 27, 1998, by
and among Silicon Valley Bank and Bank of Hawaii, as
co-lenders, and the Company and Cymer Japan, Inc., as
borrowers.
10.12 Corporate Guaranty, dated December 8, 1997, from the Company
to Silicon Valley Bank and Bank of Hawaii, as co-lenders.
10.13* 1996 Stock Option Plan (incorporated herein by reference to
Exhibit 10.3 to the Registrant's Registration Statement on
Form S-1 (as amended) No. 333-08383).
10.14* 1996 Employee Stock Purchase Plan (incorporated herein by
reference to Exhibit 10.4 to the Registrant's Registration
Statement on Form S-1 (as amended) No. 333-08383).
10.15* 1996 Director Option Plan (incorporated herein by reference
to Exhibit 10.5 to the Registrant's Registration Statement on
Form S-1 (as amended) No. 333-08383).
10.16* Employment Agreement, dated November 26, 1997, by and between
Robert P. Akins and the Company.
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10.17* Employment Agreement, dated November 26, 1997, by and between
William A. Angus, III and the Company.
10.18* Employment Agreement, dated November 26, 1997, by and between
Pascal Didier and the Company.
10.19* Employment Agreement, dated November 26, 1997, by and between
G. Scott Scholler and the Company.
21.1 Subsidiaries of Registrant.
23.1 Independent Auditors' Consent.
27.1 Financial Data Schedule for the year ended December 31, 1997.
_________________________
* Management compensation plan or arrangement
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SIGNATURES
In accordance with Section 13 or 15(d) of the Exchange Act, Registrant
caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
CYMER, INC.
By: /S/ WILLIAM A. ANGUS, III
_______________________________
William A. Angus, III
Senior Vice President,
Chief Financial Officer and Secretary
Date: July 30, 1998
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EXHIBIT 10.10
LOAN AGREEMENT
AMONG
SILICON VALLEY BANK
and BANK OF HAWAII,
AS CO-LENDERS
AND
CYMER, INC.
AND
CYMER JAPAN, INC.
AS BORROWERS
DATED AS OF DECEMBER 8, 1997
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AGREEMENT
THIS LOAN AGREEMENT ("Agreement") is made and entered into as of December
8, 1997, by and among CYMER, INC. ("Cymer") and CYMER JAPAN, INC. ("Cymer
Japan") (Cymer and Cymer Japan are jointly referred to herein as the
"Borrowers"), and SILICON VALLEY BANK ("SVB") and BANK OF HAWAII ("BOH") as
co-lenders, (individually, "Lender", and collectively, "Lenders"), and SVB,
as Servicing Agent for the Lenders.
RECITALS
Borrowers wish to obtain credit from time to time from Lenders, and
Lenders desire to extend credit to Borrowers. This Agreement sets forth the
terms on which Lenders will advance credit to Borrowers, and each Borrower
will repay the amounts owing to Lenders by it.
AGREEMENT
The parties agree as follows:
1. DEFINITIONS AND CONSTRUCTION.
1.1 DEFINITIONS. As used in this Agreement, the following terms shall
have the following definitions:
"ACCOUNTS" means all presently existing and hereafter arising accounts,
contract rights, and all other forms of obligations owing to a Borrower
arising out of the sale or lease of goods (including, without limitation, the
licensing of software and other technology) or the rendering of services by a
Borrower, whether or not earned by performance, and any and all credit
insurance, guaranties, and other security therefor, as well as all
merchandise returned to or reclaimed by Borrower and Borrower's Books
relating to any of the foregoing.
"ADVANCE" or "ADVANCES" means an advance under the Committed Revolving
Line or an advance otherwise made hereunder.
"AFFILIATE" means, with respect to any Person, any Person that owns or
controls directly or indirectly such Person, any Person that controls or is
controlled by or is under common control with such Person, and each of such
Person's senior executive officers, directors, partners and, for any Person
that is a limited liability company, such Persons' managers and members.
"BORROWER'S BOOKS" means all of a Borrower's books and records including
ledgers; records concerning Borrower's assets or liabilities, business
operations or financial condition; and all computer programs, or tape files,
and the equipment containing such information, if such equipment is necessary
for the review of such information.
"BUSINESS DAY" means (i) any day that is not a Saturday, Sunday, or other
day on which banks in Santa Clara, California or Honolulu, Hawaii are
authorized or required by law or other
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governmental actions to close, and (ii) with respect to all notices and
determinations in connection with, and payments of principal and interest on
any U.S. Dollar Advance which bears interest by reference to an interbank
offering rate and any Advance made in a currency other than U.S. Dollars, any
day which is a Business Day described in clause (i) and which is also a day
on which commercial banks are open for international business (including
dealings in the currency in which such Advance is denominated) in the
location of the relevant interbank market and the place where such funds are
to be paid or made available.
"CLOSING DATE" means the date of this Agreement.
"CODE" means the California Uniform Commercial Code.
"COMMITMENT" means, with respect to each Lender and with respect to each
Credit Facility hereunder, the amounts set forth in the Schedule and
"Commitments" means, with respect to each Lender or each facility hereunder,
as the case may be, all such amounts collectively, as each may be amended
from time to time.
"COMMITMENT PERCENTAGE" means, as to any Lender, for any Credit Facility
hereunder, the percentage equivalent of such Lender's Commitment for such
facility DIVIDED BY the aggregate amount of all Commitments under such
facility.
"COMMITTED REVOLVING LINE" means Fifteen Million Dollars ($15,000,000).
"CONTINGENT OBLIGATION" means, as applied to any Person, any direct or
indirect liability, contingent or otherwise, of that Person with respect to
(i) any indebtedness, lease, dividend, letter of credit or other obligation
of another, including, without limitation, any such obligation directly or
indirectly guaranteed, endorsed, co-made or discounted or sold with recourse
by that Person, or in respect of which that Person is otherwise directly or
indirectly liable; (ii) any obligations with respect to undrawn letters of
credit issued for the account of that Person; and (iii) all obligations
arising under any interest rate, currency or commodity swap agreement,
interest rate cap agreement, interest rate collar agreement, or other
agreement or arrangement designated to protect a Person against fluctuation
in interest rates, currency exchange rates or commodity prices; PROVIDED,
HOWEVER, that the term "Contingent Obligation" shall not include endorsements
for collection or deposit in the ordinary course of business. The amount of
any Contingent Obligation shall be deemed to be an amount equal to the stated
or determined amount of the primary obligation in respect of which such
Contingent Obligation is made or, if not stated or determinable, the maximum
reasonably anticipated liability in respect thereof as determined by such
Person in good faith; PROVIDED, HOWEVER, that such amount shall not in any
event exceed the maximum amount of the obligations under the guarantee or
other support arrangement.
"CREDIT EXTENSION" means each Advance, Exchange Contract and each other
extension of credit by Lender for the benefit of a Borrower hereunder.
"CREDIT FACILITY" means the financial accommodations extended to the
Borrowers by the Lenders regarding each of the Committed Revolving Line as
more fully set forth in this Agreement.
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"DAILY BALANCE" means the amount of the Obligations under the Loan
Documents, owed at the end of a given day.
"DEFAULT" means an Event of Default or event or condition that, but for
the requirement that time elapse or notice be given, would constitute an
Event of Default.
"DISCLOSURE LETTER" means the disclosure letter dated the Closing Date and
signed by a Responsible Officer of Cymer delivered to the Lenders pursuant
hereto.
"DOLLAR EQUIVALENT" means, with respect to a specified amount of Optional
Currency on any date, the amount of Dollars that a Lender reasonably
determines it would have to exchange in order to obtain such amount of
Optional Currency for value on a spot basis on such date of determination.
"DOLLARS", "DOLLARS" or "$" each means dollars in lawful currency of the
United States of America.
"EQUIPMENT" means all present and future machinery, equipment, tenant
improvements, furniture, fixtures, vehicles, tools, parts and attachments in
which Borrower has any interest.
"ELIGIBLE ASSIGNEE" means (a) a commercial bank organized under the laws
of the United States, or any state thereof, and having a combined capital and
surplus of at least $100,000,000; (b) a commercial bank organized under the
laws of any other country which is a member of the Organization for Economic
Cooperation and Development, or a political subdivision of any such country,
and having a combined capital and surplus of at least $100,000,000; provided
that such bank is acting through a branch or agency located in the United
States, or (c) a Person that is primarily engaged in the business of
commercial banking and that is (i) a Subsidiary of a Lender, (ii) a
Subsidiary of a Person of which a Lender is a Subsidiary, or (iii) a Person
of which a Lender is a Subsidiary.
"ERISA" means the Employment Retirement Income Security Act of 1974, as
amended, and the regulations thereunder.
"EVENT OF DEFAULT" has the meaning set forth in Section 8 hereof.
"FOREIGN EXCHANGE RESERVE" has the meaning set forth in Section 2.1.3(a)
hereof.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States of America.
"GUARANTOR" means any guarantor of the Obligations.
"INDEBTEDNESS" means (a) all indebtedness for borrowed money or the
deferred purchase price of property or services including, without
limitation, reimbursement and other obligations with respect to surety bonds
and letters of credit, (b) all obligations evidenced by notes, bonds,
debentures or similar instruments, (c) all capital lease obligations and (d)
all Contingent Obligations with respect to, immediately or ultimately, the
types of other Indebtedness listed in clauses (a), (b) and (c) above.
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"INTEREST PERIOD" means for each LIBOR Based Rate Advance, a period of
approximately one, two or three months as the Borrower may elect, provided
that the last day of an Interest Period for a LIBOR Based Rate Advance shall
be determined in accordance with the practices of the LIBOR interbank market
as from time to time in effect, provided, further, in all cases such period
shall expire not later than the applicable Maturity Date.
"INSOLVENCY PROCEEDING" means any proceeding commenced by or against any
person or entity under any provision of the United States Bankruptcy Code, as
amended, or under any other bankruptcy or insolvency law, including
assignments for the benefit of creditors, formal or informal moratoria,
compositions, extension generally with its creditors, or proceedings seeking
reorganization, arrangement, or other relief.
"INVENTORY" means all present and future inventory in which a Borrower has
any interest, including merchandise, raw materials, parts, supplies, packing
and shipping materials, work in process and finished products intended for
sale or lease or to be furnished under a contract of service, of every kind
and description now or at any time hereafter owned by or in the custody or
possession, actual or constructive, of a Borrower, including such inventory
as is temporarily out of its custody or possession or in transit and
including any returns upon any accounts or other proceeds, including
insurance proceeds, resulting from the sale or disposition of any of the
foregoing and any documents of title representing any of the above, and
Borrower's Books relating to any of the foregoing.
"INVESTMENT" means any beneficial ownership of (including stock,
partnership interest or other interests or securities) any Person, or any
loan, advance or capital contribution to any Person.
"IRC" means the Internal Revenue Code of 1986, as amended, and the
regulations thereunder.
"JAPANESE SHORT TERM PRIME RATE" means the variable rate of interest, per
annum, most recently announced by BOH -- Tokyo Branch, as its "short term
prime rate," whether or not such announced rate is the lowest rate available
from BOH.
"LENDERS' EXPENSES" means all reasonable costs or expenses (including
reasonable attorneys' fees and expenses and reasonable expenses of other
advisors) incurred in connection with the preparation, negotiation,
administration, and enforcement of the Loan Documents; and Servicing Agent's
reasonable attorneys' fees and expenses incurred in amending, enforcing or
defending the Loan Documents, whether or not suit is brought.
"LIBOR" means, for any Interest Period for a LIBOR Based Rate Advance, the
rate per annum equal to the British Bankers Association interest settlement
rate as published by the Dow Jones telerate system or Bloomberg Financial
Markets System, two (2) Business Days before the first day of such Interest
Period for a period approximately equal to such Interest Period and in an
amount approximately equal to the amount of such Advance, or, in the absence
thereof, the rate per annum determined by the Servicing Agent to be the per
annum rate of interest at which deposits in Dollars are offered to the
Servicing Agent in the London inter-bank market in which the Servicing Agent
customarily participates at 11:00 A.M. (local time in such interbank market)
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two (2) Business Days before the first day of such Interest Period for a
period approximately equal to such Interest Period and in an amount
approximately equal to the amount of such Advance.
"LIBOR INTEREST RATE" means, for any Interest Period for a LIBOR Based
Rate Advance, a rate per annum (rounded upwards if necessary, to the nearest
1/100 of 1%) equal to (i) LIBOR for such Interest Period divided by (ii) 1
minus the Reserve Requirement for such Interest Period.
"LIBOR BASED RATE" means the LIBOR Interest Rate for an identified
Interest Period plus 225 basis points.
"LIEN" means any mortgage, lien, deed of trust, charge, pledge, security
interest or other encumbrance.
"LOAN DOCUMENTS" means, collectively, this Agreement, any note or notes
executed by a Borrower, and any and all other agreements, documents and
instruments executed and delivered by or on behalf or in support of Borrower
to Servicing Agent or any Lender or their authorized designee evidencing or
otherwise relating to the Advances, the Foreign Exchange Contracts, and the
Liens granted to Servicing Agent, on behalf of Lenders, as the same may from
time to time be amended, modified, supplemented or restated.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on (i) the
business operations or condition (financial or otherwise) of Cymer and its
Subsidiaries taken as a whole or (ii) the ability of a Borrower to repay its
Obligations under the Loan Documents.
"NET BASIS" shall have the meaning set forth in Section 6.8 hereof.
"OBLIGATIONS" means all debt, principal, interest, Lenders' Expenses and
other amounts owed to Lenders or Servicing Agent by a Borrower pursuant to
this Agreement or any other Loan Document, whether absolute or contingent,
due or to become due, now existing or hereafter arising, including any
interest that accrues after the commencement of an Insolvency Proceeding.
"OPTIONAL CURRENCY" means the lawful currency of Japan.
"OPTIONAL CURRENCY ADVANCE" means an Advance in an Optional Currency, made
pursuant to and in accordance with Section 2.1.1.A hereof.
"OPTIONAL CURRENCY RATE" means with respect to Advances in Japanese Yen,
the Japanese Short Term Prime Rate plus 50 basis points.
"PERIODIC PAYMENTS" means all installments or similar recurring payments
that Borrower may now or hereafter become obligated to pay to Lenders or
Servicing Agent pursuant to the terms and provisions of any instrument, or
agreement now or hereafter in existence between or among Borrower or any
Lender or Servicing Agent.
"PERMITTED INDEBTEDNESS" means:
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(a) Indebtedness of either Borrower in favor of Lenders or Servicing
Agent arising under this Agreement or any other Loan Document;
(b) Indebtedness existing on the Closing Date and disclosed in the
Disclosure Letter;
(c) Subordinated Debt;
(d) Indebtedness to trade creditors incurred in the ordinary course of
business;
(e) Indebtedness secured by Permitted Liens;
(f) Indebtedness of any Subsidiary to Cymer and Contingent Obligations
of Cymer with respect to obligations of any Subsidiary (provided that the
primary obligations are not prohibited hereby); PROVIDED that the incurrence
of such Indebtedness or Contingent Obligations, as the case may be, does not
result in a violation of Section 7.7 as a consequence of the provisos set
forth in paragraph (1) of the definition of "Permitted Investments", and,
PROVIDED, FURTHER, that the sum of such Indebtedness does not otherwise
violate the overall limitation set forth in clause (i) hereof;
(g) Indebtedness of Cymer to any Subsidiary and Contingent Obligations
of any Subsidiary with respect to obligations of Cymer (provided that the
primary obligations are not prohibited hereby), and Indebtedness of any
Subsidiary to any other Subsidiary and Contingent Obligations of any
Subsidiary with respect to obligations of any other Subsidiary (provided that
the primary obligations are not prohibited hereby);
(h) Indebtedness by Cymer and its Subsidiaries consisting of guarantees
(and other credit support) of the obligations of vendors and suppliers of
Borrower or its Subsidiaries in respect of transactions entered into in the
ordinary course of business provided that such guarantees (and other credit
support) shall not at any time exceed $1,000,000, and, PROVIDED, FURTHER,
that the amount of such Indebtedness and Contingent Obligations does not
otherwise violate the overall limitation set forth in clause (i) hereof;
(i) Indebtedness not otherwise permitted by Section 7.5, provided that
the sum of such Indebtedness plus the aggregate sum of the Indebtedness and
Contingent Obligations under clauses (f), (g) and (h) shall not exceed in any
event 20% of the Tangible Net Worth of Cymer at any time;
(j) Indebtedness of Cymer incurred in connection with interest rate,
currency or commodity swap agreement, interest rate cap agreement, interest
rate collar agreement, or other agreement or arrangement designated to
protect against fluctuation in interest rates, currency exchange rates,
commodity prices or securities issued by Cymer in connection with a
securities repurchase program, in each case entered into for the purpose of
directly mitigating market risk and not for speculation; and
(k) Extensions, refinancings, modifications, amendments and
restatements of any items of Permitted Indebtedness (a) through (j) above,
provided that the principal amount
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thereof is not increased or the terms thereof are not modified to impose more
burdensome terms upon Borrower or its Subsidiary, as the case may be.
"PERMITTED INVESTMENTS" means:
(a) Investments existing on the Closing Date disclosed in the
Disclosure Letter;
(b) (i) marketable direct obligations issued or unconditionally
guaranteed by the United States of America or any agency or any State thereof
maturing within one (1) year from the date of acquisition thereof, (ii)
commercial paper maturing no more than one (1) year from the date of creation
thereof and currently having the highest rating obtainable from either
Standard & Poor's Corporation or Moody's Investors Service, Inc., (iii)
certificates of deposit maturing no more than one (1) year from the date of
investment therein issued by SVB or BOH and (iv) Investments permitted under
Cymer's corporate investment policy approved by the board of directors of
Cymer as of October 22, 1997, as it may be amended from time to time so long
as any such amendments are approved by the Lenders;
(c) Investments consisting of the endorsement of negotiable instruments
for deposit or collection or similar transactions in the ordinary course of
business;
(d) Investments consisting of receivables owing to Borrower or its
Subsidiaries by Persons and advances to customers or suppliers, in each case,
if created, acquired or made in the ordinary course of business; provided
that this paragraph (d) shall not apply to Investments owing by Subsidiaries
to Borrower;
(e) Investments consisting of (i) compensation of employees, officers
and directors of Borrower or its Subsidiaries so long as the Board of
Directors of Borrower determines that such compensation is in the best
interests of Borrower, (ii) travel advances, employee relocation loans and
other employee loans and advances in the ordinary course of business, (iii)
loans to employees, officers or directors relating to the purchase of equity
securities of Borrower or its Subsidiaries pursuant to employee stock
purchase plans approved by Borrower's Board of Directors, (iv) other loans to
officers and employees approved by the Board of Directors;
(f) Investments (including debt obligations) received in connection
with the bankruptcy or reorganization of customers or suppliers and in
settlement of delinquent obligations of, and other disputes with, customers
or suppliers arising in the ordinary course of business;
(g) Investments pursuant to contracts of the type described in clause
(j) of the definition of Permitted Indebtedness;
(h) Investments consisting of prepaid royalties and other credit
extensions to, customers and suppliers who are not Affiliates, in the
ordinary course of business;
(i) Investments constituting acquisitions permitted under Section 7.3,
if any;
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(j) Deposit accounts of Cymer and any Subsidiaries thereof maintained
in the ordinary course of business;
(k) Investments accepted in connection with Transfers permitted by
Section 7.1;
(l) Investments (whether consisting of the purchase of securities,
loans, capital contributions or otherwise) of Cymer in or to Subsidiaries and
Investments by Cymer in or to companies which simultaneously with such
Investments become Subsidiaries, PROVIDED that the sum of (i) all such
Investments by Cymer in or to Subsidiaries, plus (ii) Contingent Obligations
by Cymer outstanding at any time with respect to the obligations of
Subsidiaries, minus the sum of (x) Investments by Subsidiaries in or to
Cymer, plus (y) payments to Borrower on account of Investments of Cymer in or
to Subsidiaries, plus (z) distributions or dividends by Subsidiaries to
Cymer, in each case, made, incurred or arising on or after the date hereof,
does not exceed $5,000,000, PROVIDED, FURTHER, that accounts payable of
Subsidiaries owing to Cymer incurred in the ordinary course of business
consistent with the general past business practices of Cymer and Subsidiaries
are not subject to the foregoing limitations;
(m) Investments (whether consisting of the purchase of securities,
loans, capital contributions, or otherwise) of Subsidiaries in or to other
Subsidiaries or in or to Cymer;
(n) Investments by Cymer consisting of the purchase of securities of
Cymer in an aggregate amount not in excess of 20% of the Tangible Net Worth
of Cymer on a consolidated basis; and
(o) Other Investments aggregating not in excess of 10% of the Tangible
Net Worth of Cymer on a consolidated basis.
"PERMITTED LIENS" means the following:
(a) Any Liens existing on the Closing Date and disclosed in the
Disclosure Letter or arising under this Agreement or the other Loan Documents;
(b) Liens for taxes, fees, assessments or other governmental charges or
levies, either not delinquent or being contested in good faith by appropriate
proceedings, PROVIDED the same have no priority over any of Servicing Agent's
or any Lender's security interests;
(c) Liens (i) upon or in any equipment acquired or held by Borrower or
any of its Subsidiaries to secure the purchase price of such equipment or
indebtedness incurred solely for the purpose of financing the acquisition of
such equipment, or (ii) existing on such equipment at the time of its
acquisition, PROVIDED that the Lien is confined solely to the property so
acquired and improvements thereon, and the proceeds of such equipment;
(d) [reserved];
(e) Leases or subleases and non-exclusive licenses and sublicenses
granted to others in the ordinary course of Borrower's business not
interfering in any material respect with
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the business of Borrower and its Subsidiaries taken as a whole, and any
interest or title of a lessor, licensor or under any lease or license;
(f) Liens arising from judgments, decrees or attachments in
circumstances not constituting an Event of Default under Section 8.8;
(g) Easements, reservations, rights-of-way, restrictions, minor defects
or irregularities in title and other similar charges or encumbrances
affecting real property not constituting a Material Adverse Effect;
(h) Liens which constitute rights of set-off of a customary nature or
bankers' Liens with respect to amounts on deposit, whether arising by
operation of law or by contract, in connection with arrangements entered into
with banks in the ordinary course of business;
(i) Liens in favor of customs and revenue authorities arising as a
matter of law to secure payments of customs duties in connection with the
importation of goods;
(j) Liens on insurance proceeds in favor of insurance companies granted
solely as security for financed premiums;
(k) Liens in favor of a trustee under any indenture relating to
Subordinated Indebtedness securing only amounts due to such trustee
thereunder; and
(l) Liens incurred in connection with the extension, renewal or
refinancing of the indebtedness secured by Liens of the type described in
clauses (a) through (c) above, provided that any extension, renewal or
replacement Lien shall be limited to the property encumbered by the existing
Lien and the principal amount of the indebtedness.
"PERSON" means any individual, sole proprietorship, partnership, limited
liability company, joint venture, trust, unincorporated organization,
association, corporation, institution, public benefit corporation, firm,
joint stock company, estate, entity or governmental agency.
"PRIME RATE" means the variable rate of interest, per annum, most recently
announced by SVB, as its "prime rate," whether or not such announced rate is
the lowest rate available from SVB.
"PRIME BASED RATE" means an interest rate of the Prime Rate less 50 basis
points.
"REQUISITE LENDERS" means, at any time, Lenders then holding at least
sixty-six and two-thirds percent (66.67%) of the aggregate Commitments;
PROVIDED, HOWEVER, that in the event there shall be only two (2) Lenders,
then both of such Lenders.
"RESERVE REQUIREMENT" means, for any Interest Period, the average maximum
rate at which reserves (including any marginal, supplemental or emergency
reserves) are required to be maintained during such Interest Period under
Regulation D against "Eurocurrency liabilities" (as such term is used in
Regulation D) by member banks of the Federal Reserve System. Without
limiting the effect of the foregoing, the Reserve Requirement shall reflect
any other reserves required to be maintained by the Lenders by reason of any
regulatory change against (i) any
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category of liabilities which includes deposits by reference to which LIBOR
is be determined as used herein or (ii) any category of extensions of credit
or other assets which include Advances.
"RESPONSIBLE OFFICER" means, with respect to Cymer, each of the Chief
Executive Officer, the Chief Financial Officer and the Treasurer and, with
respect to Cymer Japan, a Representative Director.
"REVOLVING ADVANCE" means an Advance made to Borrower pursuant to Section
2.1.1 of this Agreement.
"REVOLVING COMMITMENT" means, as to each Lender, the amount of the
Commitment with respect to the Committed Revolving Line set forth in the
Schedule next to such Lender's name.
"REVOLVING MATURITY DATE" means one year from the date hereof, as such
date may from time to time be extended by Lenders in their sole discretion
pursuant to this Agreement.
"SCHEDULE" means the schedule of Commitments attached hereto.
"SERVICING AGENT" means SVB, not in its individual capacity, but solely in
its capacity as agent for certain loan servicing functions, on behalf of and
for the benefit of Lenders, and any successor agent, all as may be requested
by the Lenders, unanimously, from time to time.
"SUBORDINATED DEBT" means Cymer's 3-1/2%/7-1/4% Step-Up Convertible Notes
Due 2004 (the "Notes") and any other debt of a Borrower which is subordinated
to the debt owing by a Borrower to Lenders on terms at least favorable to
Lenders as set forth in the indenture relating to the Notes or on such other
terms approved by Requisite Lenders and Servicing Agent in writing, PROVIDED
that in all cases the Obligations hereunder shall at all times constitute
"Designated Senior Indebtedness" (as defined in the Notes) to the extent that
any of the Notes remains outstanding.
"SUBSIDIARY" means any Person which is an entity in which (i) any general
partnership interest or (ii) more than 50% of the stock or other equity
interest of which by the terms thereof ordinary voting power to elect the
Board of Directors, managing members, managers or trustees of the entity
shall, at the time as of which any determination is being made, be owned by
Borrower, either directly or through an Affiliate.
"TANGIBLE NET WORTH" means, as at any date of determination, the
consolidated total assets of Borrower and its Subsidiaries, plus Subordinated
Debt, MINUS, without duplication, (i) the sum of any amounts attributable to
(a) goodwill, (b) other intangible items such as unamortized debt discount
and expense, patents, trade and service marks and names, copyrights and
capitalized research and development expenses except prepaid expenses, and
(c) all reserves not already deducted from assets, and (ii) Total Liabilities.
"TOTAL LIABILITIES" means at any date as of which the amount thereof shall
be determined, all obligations that should, in accordance with GAAP, be
classified as liabilities on the consolidated balance sheet of Borrower,
including, in any event, all Indebtedness, but specifically excluding
Subordinated Debt.
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1.2 ACCOUNTING TERMS. All accounting terms not specifically defined
herein shall be construed in accordance with GAAP and all calculations made
hereunder shall be made in accordance with GAAP. When used herein, the term
"financial statements" shall include the notes and schedules thereto.
2. CREDIT FACILITIES AND TERMS OF PAYMENT
2.1 THE CREDIT FACILITIES.
2.1.1 THE REVOLVING ADVANCES. Subject to and upon the terms and
conditions hereof, and in reliance upon the representations and warranties of
the Borrowers set forth herein, each Lender severally agrees to make its
Commitment Percentage of Revolving Advances to Cymer up to the amount of
$2,000,000 from time to time until the close of business on the Revolving
Maturity Date, in such sums as Cymer may request, PROVIDED that the aggregate
principal amount of all Revolving Advances and the Dollar Equivalent of the
Optional Currency Advances at any one time outstanding shall not exceed the
Committed Revolving Line minus the Foreign Exchange Reserve. Subject to the
terms and conditions of this Agreement and in reliance upon the
representations and warranties set forth herein, amounts borrowed pursuant to
this Section 2.1.1 may be repaid and reborrowed at any time during the term
of this Agreement. The minimum amount of a Prime Based Rate Revolving
Advance is $25,000. The minimum amount of a LIBOR Based Rate Revolving
Advance is $500,000, and loan amounts greater than such sum are required to
be in integral multiples of $50,000 in excess thereof.
Cymer promises to pay to Servicing Agent for the account of each Lender,
in lawful money of the United States of America, the aggregate unpaid
principal amount of all Revolving Advances made by Servicing Agent and
Lenders to Borrower. Borrower shall also pay interest on the aggregate
unpaid principal amount of such Advances at the rates and in accordance with
the terms hereof.
The Committed Revolving Line shall terminate on the Revolving Maturity
Date, at which time all Revolving Advances under this Section 2.1.1, all
Optional Currency Advances, and other amounts due under this Agreement
(except as otherwise expressly specified herein) shall be immediately due and
payable.
2.1.1.A OPTIONAL CURRENCY ADVANCES.
At the request of the Cymer Japan, Cymer may, on behalf of Cymer
Japan, request Advances hereunder, from time to time, in an Optional
Currency, PROVIDED, HOWEVER, that the Dollar Equivalent of the aggregate
principal amount of all such Optional Currency Advances at any one time
outstanding shall not exceed Three Million Dollars ($3,000,000) AND the
aggregate principal amount of all Revolving Advances, the Dollar Equivalent
of the aggregate principal amount of all Optional Currency Advances at any
one time outstanding shall not exceed the Committed Revolving Line minus the
Foreign Exchange Reserve. All Advances made in an Optional Currency shall be
made exclusively by BOH, and repayments of Optional Currency Advances made in
such Optional Currency shall be made only at the branch of BOH in the country
of such Optional Currency.
2.1.2 [RESERVED]
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2.1.3 FOREIGN EXCHANGE CONTRACTS; FOREIGN EXCHANGE SETTLEMENTS.
(a) Subject to the terms of this Agreement, either Borrower, on a
joint basis, may enter into foreign exchange contracts (the "Exchange
Contracts") not to exceed an aggregate Dollar Equivalent amount of
$100,000,000 (the "Contract Limit"), pursuant to which Lenders shall sell to
or purchase from Borrower foreign currency on a spot or future basis. A
Borrower shall not request any Exchange Contracts at any time a Default or an
Event of Default has occurred and is continuing. All Exchange Contracts must
provide for delivery of settlement on or before the Revolving Maturity Date.
The amount available under the Committed Revolving Line at any time shall be
reduced by the following amounts (the "Foreign Exchange Reserve") on any
given day (the "Determination Date"): on all outstanding Exchange Contracts
on which delivery is to be effected or settlement allowed, 10% of the gross
amount of the Exchange Contracts.
(b) Lenders may, in their discretion, terminate the Exchange
Contracts at any time (i) that an Event of Default has occurred and is
continuing or (ii) that there is insufficient availability under the
Committed Revolving Line and the applicable Borrower does not have available
funds in its deposit account with Lender to satisfy the Foreign Exchange
Reserve. If Lender terminates the Exchange Contracts, and without limitation
of any applicable indemnities, the applicable Borrower agrees to reimburse
Lender for any and all fees, costs and expenses relating thereto or arising
in connection therewith.
(c) The Borrowers shall not permit the total gross amount of all
Exchange Contracts on which delivery is to be effected and settlement allowed
in any two business day period to be more than $20,000,000 in the aggregate
for both Borrowers (the "Settlement Limit") nor shall the Borrowers permit
the total gross amount of all Exchange Contracts to which either Borrower is
a party, outstanding at any one time in the aggregate, to exceed the Contract
Limit. Notwithstanding the above, however, the amount which may be settled in
any two (2) business day period may be increased above the Settlement Limit
up to, but in no event to exceed, the amount of the Contract Limit under
either of the following circumstances:
(i) if there is sufficient availability under the Committed
Revolving Line in the amount of the Foreign Exchange Reserve as of each
Determination Date, provided that Lender in advance shall have reserved the
full amount of the Foreign Exchange Reserve against the Committed Revolving
Line; or
(ii) if there is insufficient availability under the Committed
Revolving Line, as to settlements within any two (2) Business Day period,
provided that Lender, in its sole discretion, may: (A) verify good funds
overseas prior to crediting the deposit account of the applicable Borrower
with a Lender (in the case of the sale by Borrower of foreign currency); or
(B) debit the deposit account of the applicable Borrower with a Lender prior
to delivering foreign currency overseas (in the case of the purchase by
Borrower of foreign currency).
(d) In the case of the purchase by the applicable Borrower of
foreign currency, such Borrower in advance shall instruct Lender upon
settlement
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either to treat the Settlement Amount as a Revolving Advance, or to debit the
account of such Borrower for the amount settled.
(e) The applicable Borrower shall execute all standard form
applications and agreements of Lender in connection with the Exchange
Contracts and, without limiting any of the terms of such applications and
agreements, such Borrower will pay all standard fees and charges of Lender in
connection with the Exchange Contracts.
2.2 OVERADVANCES. If, at any time or for any reason, the amount of
Obligations owed by a Borrower under the Committed Revolving Line or the
Dollar Equivalent of the Obligations relating to Optional Currency Advances
exceeds the applicable credit limitation, such Borrower shall immediately pay
to Servicing Agent, on behalf of Lenders, in cash, the amount of such excess.
2.3 INTEREST RATES, PAYMENTS, CALCULATIONS, BORROWING PROCEDURES.
2.3.1 INTEREST RATE. Except as set forth in Section 2.3.2, all
Revolving Advances shall bear interest on the average Daily Balance thereof
at a rate per annum equal to either the Prime Based Rate or the LIBOR Based
Rate, which interest rate election may be made in writing by the Borrower to
the Servicing Agent, provided that (a) the initial interest rate relating to
each of the Revolving Advances shall be the Prime Based Rate unless the
Borrower notifies the Servicing Agent otherwise in accordance herewith as if
such an election were a conversion from a existing Prime Based Rate Advance
to a LIBOR Based Rate Advance under Section 2.7 hereof with the closing date
herewith considered to be the conversion date thereunder, (b) subsequent
switches in interest rate from the Prime Based Rate to the LIBOR Based Rate
and vice versa shall be accomplished in accordance with Section 2.7 hereof,
and (c) there shall be a single interest rate applicable to all Revolving
Advances. All Optional Currency Advances shall bear interest on the average
Daily Balance thereof at the Optional Currency Rate.
2.3.2 DEFAULT RATE. All Obligations shall bear interest, from and
after the occurrence of an Event of Default, at a rate equal to the lesser of
(i) two (2) percentage points above the interest rate applicable immediately
prior to the occurrence of the Event of Default, or (ii) the maximum rate
permitted by law including, to the extent applicable to Optional Currency
Advances, the law of the country of such Optional Currency.
2.3.3 PAYMENTS. Interest on all Advances shall accrue at the
applicable interest rate from the date of the making of such Advances and
shall be payable by the Borrower to the Servicing Agent on the 5th of each
month, except for the interest on the LIBOR Based Rate Advances which shall
be payable at the end of the applicable Interest Period. Each Borrower
hereby authorizes Servicing Agent to debit any accounts with Servicing Agent,
including, without limitation, Account Number _____________________ for
payments of principal and interest due on the Obligations and any other
amounts owing by such Borrower to Lenders. Servicing Agent shall notify the
applicable Borrower of all debits which Servicing Agent makes against such
Borrower's accounts. Any such debits against a Borrower's accounts in no way
shall be deemed a set-off. With respect to repayments of Optional Currency
Advances, the branch of BOH in the country of the Optional Currency shall, at
the option of
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BOH, charge such interest and all periodic payments against the applicable
Borrower's deposit account in such country or against the Committed Revolving
Line, in which case those amounts shall thereafter accrue interest at the
rate then applicable thereunder. Any interest not paid when due shall be
compounded by becoming a part of the Obligations, and such interest shall
thereafter accrue interest at the rate then applicable hereunder.
2.3.4 COMPUTATION. In the event the Prime Rate is changed from time
to time hereafter, the applicable Prime Based Rate of interest hereunder
shall be increased or decreased effective as of 12:01 a.m. on the day the
Prime Rate is changed, by an amount equal to such change in the Prime Rate.
All interest relating to the Prime Rate chargeable under the Loan Documents
shall be computed on the basis of a three hundred sixty five (365) day year
for the actual number of days elapsed, except where the law or commercial
custom in the country of the Optional Currency requires otherwise. All
interest relating to the LIBOR Based Rate Advances chargeable under the Loan
Documents shall be computed on the basis of a three hundred sixty (360) day
year for the actual number of days elapsed.
2.3.5 BORROWING PROCEDURES. Whenever a Borrower desires a Credit
Extension hereunder, Borrower shall notify Servicing Agent (A) by facsimile
transmission or telephone no later than 11:00 a.m. California time, on the
Business Day prior to which a Prime Based Rate Credit Extension is to be
made, (B) by facsimile transmission no later than 12:00 p.m. noon California
time on the Business Day that is three (3) Business Days prior to the
Business Day on which a LIBOR Based Rate Credit Extension is to be made and
(C) by facsimile transmission no later than 12:00 p.m. noon California time
on the Business Day that is two (2) Business Days prior to the Business Day
on which an Optional Currency Rate Advance is to be made. Servicing Agent
shall promptly deliver such notice to the Lenders. Each such notification
shall be promptly confirmed by a Payment/Advance Form in substantially the
form of EXHIBIT B hereto. Servicing Agent is authorized to make Credit
Extensions under this Agreement, based upon instructions received by
Servicing Agent from a Responsible Officer, or without instructions if in
Servicing Agent's discretion such Credit Extensions are necessary to meet
Obligations which have become due and remain unpaid. Servicing Agent and
Lender shall be entitled to rely on any telephonic notice given by an
individual whom Servicing Agent or any Lender reasonably believes to be a
Responsible Officer, and the applicable Borrower shall indemnify and hold
Servicing Agent and Lenders harmless for any damages or loss suffered by
Servicing Agent or Lenders as a result of such reliance. Each Lender will
wire or credit, as appropriate, the amount of Advances in United States
Dollars made under Section 2.1 to the applicable Borrower's deposit account
held by Servicing Agent, as specified by such Borrower, or, as to an Advance
in an Optional Currency, to such Borrower's deposit account held by BOH in
the respective branch office in the country of the Optional Currency.
2.3.6 PREPAYMENTS. Borrowers may at any time prepay any Prime Rate
Based Revolving Advance or any Optional Currency Rate Advance, in full or in
part, without premium or penalty. Each prepayment shall be made upon the
irrevocable written or telephone notice of Borrowers received by the
Servicing Agent not later than 10:00 a.m. California time on the date of the
prepayment of a Prime Based Rate Revolving Advance and not less than two
Business Days in the country of the Optional Currency prior to the date of
the prepayment of an Optional Currency Rate Advance. The notice of
prepayment shall specify the date of the prepayment, the amount of the
prepayment, and the Advance or Advances to be prepaid. Each
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prepayment of an Optional Currency Rate Advance for which the term and
interest rate have been fixed shall be accompanied by the payment of accrued
interest on the amount prepaid.
2.4 CREDITING PAYMENTS. Prior to the occurrence of an Event of
Default, Servicing Agent shall credit a wire transfer of funds, check or
other item of payment paid by Borrower to Servicing Agent on behalf of
Lenders to such deposit account or Obligation as Borrower specifies. After
the occurrence and during the continuance of an Event of Default, the receipt
by Servicing Agent on behalf of Lenders of any wire transfer of funds, check,
or other item of payment shall be immediately applied to conditionally reduce
Obligations, but shall not be considered a payment on account unless such
payment is of immediately available federal funds or unless and until such
check or other item of payment is honored when presented for payment.
Notwithstanding anything to the contrary contained herein, any payment (other
than a wire transfer or other payment in immediately available funds)
received by Servicing Agent or any Lender after 12:00 p.m. noon California
time (or, as to a payment in Optional Currency, noon at the BOH branch office
in the country of the Optional Currency) shall be deemed to have been
received by Servicing Agent or such Lender as of the opening of business on
the immediately following Business Day. Whenever any payment to Servicing
Agent or any Lender under the Loan Documents would otherwise be due (except
by reason of acceleration) on a date which is not a Business Day, such
payment shall instead be due on the next Business Day, and additional fees or
interest, as applicable, shall accrue and be payable for the period of such
extension.
2.5 FEES. Cymer shall pay to Servicing Agent on behalf of Lenders
the following:
2.5.1 FACILITY FEE. A Facility Fee equal to Forty Three Thousand
Seven-Hundred Fifty Dollars ($43,750), which fee shall be shared equally by
Lenders, shall be due on the Closing Date and shall be fully earned and
non-refundable;
2.5.2 [RESERVED]
2.5.3 LENDERS' EXPENSES. Upon the date hereof, all Lenders'
Expenses incurred through the date hereof, including reasonable attorneys'
fees and expenses.
2.5.4 UNUSED LINE FEE. Borrower shall pay the Lenders an unused
line fee, in addition to all interest and other fees payable hereunder. The
amount of such fee shall be .125% per annum multiplied by an amount equal to
$15,000,000 minus the sum of the average Daily Balance of (a) the outstanding
Revolving Advances plus (b) the Dollar Equivalent of the Optional Currency
Advances plus (c) the Foreign Exchange Reserve. The unused line fee shall be
computed and paid quarterly, in arrears, on the last day of March, June,
September and December of each year, commencing on December 31, 1997, with
respect to the quarter then ended.
2.6 ADDITIONAL COSTS. In case any change in any law, regulation,
treaty or official directive or the interpretation or application thereof by
any court or any governmental authority charged with the administration
thereof or the compliance with any guideline or request
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of any central bank or other governmental authority (whether or not having
the force of law), in each case after the date of this Agreement:
2.6.1 subjects Servicing Agent or any Lender to any tax with
respect to payments of principal or interest or any other amounts payable
hereunder by Borrower or otherwise with respect to the transactions
contemplated hereby (except for taxes on the overall net income of Servicing
Agent or such Lender imposed by any jurisdiction or any political subdivision
thereof);
2.6.2 imposes, modifies or deems applicable any deposit insurance,
reserve, special deposit or similar requirement against assets held by, or
deposits in or for the account of, or loans by, Servicing Agent or any
Lender; or
2.6.3 imposes upon Servicing Agent or any Lender any other
condition with respect to its performance under this Agreement,
and the result of any of the foregoing is to increase the cost to Servicing
Agent or such Lender, reduce the income receivable by Servicing Agent or such
Lender or impose any expense upon Servicing Agent or such Lender with respect
to any Advances, Servicing Agent or such Lender, as applicable, shall notify
Borrower thereof. Borrower agrees to pay to Servicing Agent or such Lender
the amount of such increase in cost, reduction in income or additional
expense as and when such cost, reduction or expense is incurred or
determined, upon presentation by Servicing Agent or such Lender of a
statement of the amount and setting forth Servicing Agent's or such Lender's
calculation thereof, all in reasonable detail, which statement shall be
deemed true and correct absent manifest error; PROVIDED, HOWEVER, that the
Borrower shall not be liable for any such amount attributable to any period
prior to the date one-hundred eighty (180) days prior to the date of such
statement. Lender agrees that it will allocate all such increased costs
among its customers similarly affected in good faith and in a manner
consistent with Lender's customary practice.
2.7 CONVERSION/CONTINUATION OF ADVANCES.
(a) Borrowers may from time to time submit in writing a request that
Prime Rate Based Advances be converted to LIBOR Based Rate Advances or that
any existing LIBOR Based Rate Advances continue for an additional Interest
Period. Such request shall specify the amount of the Prime Based Rate
Advances which will constitute LIBOR Based Rate Advances (subject to the
limits set forth below and as otherwise set forth herein) and the Interest
Period to be applicable to such LIBOR Based Rate Advances. Each written
request for a conversion to a LIBOR Based Rate Advance or a continuation of a
LIBOR Based Rate Advance shall be substantially in the form of a LIBOR Rate
Conversion/Continuation Certificate as set forth on EXHIBIT C, which shall be
duly executed by a Responsible Officer. Subject to the terms and conditions
contained herein, three (3) Business Days after Servicing Agent's receipt of
such a request from Borrower, such Prime Based Rate Advances shall be
converted to LIBOR Based Rate Advances or such LIBOR Based Rate Advances
shall continue, as the case may be, provided that:
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(i) no Event of Default or event which with notice or passage of
time or both would constitute an Event of Default exists;
(ii) Borrower shall have complied with the procedures as Lenders
have established set forth in Section 2.3.5 for LIBOR Based Rate Advances; and
(iii) Servicing Agent shall have determined that the Interest
Period or LIBOR Rate is available to Lenders as of the date of the request
for such LIBOR Based Rate Advance.
Any request by Borrowers to convert Prime Based Rate Advances to LIBOR
Based Rate Advances or continue any existing LIBOR Based Rate Advances shall
be irrevocable. Notwithstanding anything to the contrary contained herein,
Lenders shall not be required to purchase United States Dollar deposits in
the London interbank market or other applicable LIBOR market to fund any
LIBOR Based Rate Advances, but the provisions hereof shall be deemed to apply
as if the Lenders had purchased such deposits to fund the LIBOR Based Rate
Advances.
(b) Any LIBOR Based Rate Advances shall automatically convert to
Prime Based Rate Advances upon the last day of the applicable Interest
Period, unless the Servicing Agent has received and approved a complete and
proper request to continue such LIBOR Based Rate Advance at least three (3)
Business Days prior to such last day in accordance with the terms hereof.
Any LIBOR Based Rate Advances shall, in Lenders' commercially reasonable
discretion, convert to Prime Based Rate Advances in the event that an Event
of Default shall exist and be continuing.
2.8 ADDITIONAL REQUIREMENTS/PROVISIONS REGARDING LIBOR BASED RATE
ADVANCES OR OPTIONAL CURRENCY RATE ADVANCES.
(a) If for any reason (including voluntary or mandatory prepayment or
acceleration), Lenders receive all or part of the principal amount of a LIBOR
Based Rate Advance prior to the last day of the Interest Period for such
LIBOR Based Rate Advance, Borrower shall within 10 days of demand by
Servicing Agent, pay Servicing Agent the amount (if any) by which (i) the
additional interest which would have been payable on the amount so received
had it not been received until the last day of such Interest Period or term
exceeds (ii) the interest which would have been recoverable by Lender by
placing the amount so received on deposit in the certificate of deposit
markets or the offshore currency interbank markets or United States Treasury
investment products, as the case may be, for a period starting on the date
which it was so received and ending on the last day of such Interest Period
or term at the interest rate determined by Servicing Agent in its reasonable
discretion plus Borrower shall also pay to Servicing Agent any and all other
costs or expenses incurred by the Servicing Agent as a result of any such
conversion. Servicing Agent's determination as to such amount shall be
conclusive absent manifest error.
(b) If at any time a Lender, in its sole and absolute discretion,
determines that: (i) the amount of the LIBOR Based Rate Advances or Optional
Currency Rate Advances for periods equal to the corresponding Interest
Periods or any other period are not available to such
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Lender in the offshore currency interbank markets, or (ii) LIBOR or the
Optional Currency Rate does not accurately reflect the cost to Lenders of
lending the LIBOR Based Rate Advance or Optional Currency Rate Advance, then
such Lender shall promptly give notice thereof to Borrower, and upon the
giving of such notice such Lender's obligation to make the LIBOR Based Rate
Advance or Optional Currency Rate Advances shall terminate, unless Lenders
and Borrower agree in writing to a different interest rate applicable to
LIBOR Based Rate Advances or Optional Currency Rate Advances. If it shall
become unlawful for a Lender to continue to fund or maintain any Advances
(other than with respect to Prime Rate Based Advances), or to perform its
obligations hereunder with respect thereto, upon demand by such Lender,
Borrower shall, with respect to Optional Currency Advances, prepay the
Advances in full with accrued interest thereon and all other amounts payable
by Borrower hereunder (including, without limitation, any amount payable in
connection with such prepayment pursuant to Section 2.8(a)) and, with respect
to LIBOR Based Rate Advances, convert such Advances to Prime Rate Based
Advances.
2.9 TERM. Except as otherwise set forth herein, this Agreement shall
become effective on the Closing Date and, subject to Sections 13.2.4 and
13.7, shall continue in full force and effect for a term ending on the
Revolving Maturity Date with respect Revolving Advances, Optional Currency
Advances and Foreign Exchange Contracts. Notwithstanding the foregoing,
Lenders shall have the right to terminate their obligation to make Credit
Extensions under this Agreement immediately and without notice upon the
occurrence and during the continuance of an Event of Default, PROVIDED that
Lenders are not required to make Advances during the pendency of a Default.
3. CONDITIONS OF LOANS
3.1 CONDITIONS PRECEDENT TO INITIAL CREDIT EXTENSION. The obligation
of Lenders to make the initial Credit Extension is subject to the condition
precedent that Lenders shall have received, in form and substance
satisfactory to Lenders, the following:
(a) this Agreement;
(b) a certificate of the Secretary of each Borrower with respect
to incumbency and resolutions authorizing the execution and delivery of this
Agreement;
(c) certificates of the Secretary of State of Nevada and the
Secretary of State of California with respect to the valid existence, good
standing, and foreign qualification, as applicable with respect to Cymer,
Inc. and such certificates and other written evidence with respect to the
valid existence and good standing of Cymer Japan, Inc.;
(d) an opinion of Borrower's counsel acceptable to the Lenders;
(e) guaranty by Cymer of the obligations of Cymer Japan hereunder,
in such form as is acceptable to the Lenders;
(f) [reserved];
(g) insurance certificate;
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(h) [reserved];
(i) payment of the fees and expenses (including, without
limitation, Lenders' Expenses) then due specified in Section 13.2.1 hereof;
(j) the Disclosure Letter; and
(k) such other documents, and completion of such other matters, as
Lenders may reasonably deem necessary or appropriate.
3.2 CONDITIONS PRECEDENT TO ALL CREDIT EXTENSIONS. The obligation of
Lenders to make each Credit Extension, including the initial Advance, is
further subject to the following conditions:
(a) timely receipt by Servicing Agent on behalf of Lenders of the
Payment/Advance Form; and
(b) the representations and warranties contained in Section 5 shall
be true and correct in all material respects on and as of the date of such
Payment/Advance Form and on the effective date of each Credit Extension as
though made at and as of each such date (except to the extent they relate
specifically to an earlier date, in which case such representations and
warranties shall continue to have been true and accurate as of such date),
and no Event of Default shall have occurred and be continuing, or would
result from such Credit Extension. The making of each Credit Extension shall
be deemed to be a representation and warranty by Borrower on the date of such
Credit Extension as to the accuracy of the facts referred to in this Section
3.2(c).
4. [RESERVED]
5. REPRESENTATIONS AND WARRANTIES
Each Borrower severally represents and warrants as follows (but where
indicated only Cymer so represents and warrants):
5.1 DUE ORGANIZATION AND QUALIFICATION. Such Borrower and each
Subsidiary is a corporation duly existing and in good standing under the laws
of its state or jurisdiction of organization and qualified and licensed to do
business in, and is in good standing in, any state or country in which the
conduct of its business or its ownership of property requires that it be so
qualified, except for states or countries as which any failure to so qualify
would not have a Material Adverse Effect.
5.2 DUE AUTHORIZATION; NO CONFLICT. The execution, delivery, and
performance of the Loan Documents are within such Borrower's powers, have
been duly authorized, and are not in conflict with nor constitute a breach of
any provision contained in such Borrower's Articles of Incorporation or
Bylaws (or similar constituent documents), nor will they constitute an event
of default under any material agreement to which such Borrower is a party or
by which such Borrower is bound. Such Borrower is not in default under any
agreement to which it is a party or by which it is bound, which default could
reasonably be expected to have a Material Adverse Effect.
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5.3 NO PRIOR ENCUMBRANCES. Such Borrower has good and indefeasible
title to all of its assets, free and clear of Liens, except for Permitted
Liens.
5.4 [RESERVED]
5.5 MERCHANTABLE INVENTORY. All Inventory is in all material respects
of good and marketable quality, free from all material defects.
5.6 NAME; LOCATION OF CHIEF EXECUTIVE OFFICE. Except as disclosed in
the Disclosure Letter, such Borrower has not done business under any name
other than that specified on the signature page hereof. The chief executive
office of such Borrower is located at the address indicated in SECTION 11
hereof.
5.7 LITIGATION. Except as set forth in the Disclosure Letter, there
are no actions or proceedings pending by or against such Borrower or any
Subsidiary before any court or administrative agency in which an adverse
decision would reasonably be expected to have a Material Adverse Effect.
Such Borrower does not have knowledge of any such pending or threatened
actions or proceedings.
5.8 NO MATERIAL ADVERSE CHANGE IN FINANCIAL STATEMENTS. All
consolidated financial statements related to Cymer and any Subsidiary which
have been delivered by Cymer to Lenders fairly present in all material
respects such Borrower's consolidated financial condition as of the date
thereof and such Borrower's consolidated results of operations for the period
then ended. There has not been a material adverse change in the consolidated
financial condition of such Borrower since the date of the most recent of
such financial statements submitted to Lenders.
5.9 SOLVENCY. Such Borrower is solvent and able to pay its debts
(including trade debts) as they mature.
5.10 REGULATORY COMPLIANCE. Such Borrower and each Subsidiary has met
the minimum funding requirements of ERISA with respect to any employee
benefit plans subject to ERISA. No event has occurred resulting from such
Borrower's failure to comply with ERISA that is reasonably likely to result
in such Borrower's incurring any liability that would reasonably be expected
to have a Material Adverse Effect. Such Borrower is not an "investment
company" or a company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940. Such Borrower is not engaged
principally, or as one of the important activities, in the business of
extending credit for the purpose of purchasing or carrying margin stock
(within the meaning of Regulations G, T and U of the Board of Governors of
the Federal Reserve System). Such Borrower has complied with all the
provisions of the Federal Fair Labor Standards Act applicable to it. Such
Borrower has not violated any statutes, laws, ordinances or rules applicable
to it, violation of which could have a Material Adverse Effect.
5.11 ENVIRONMENTAL CONDITION. None of such Borrower's or any
Subsidiary's properties or assets has ever been used by such Borrower or any
Subsidiary or, to the best of such Borrower's knowledge, by previous owners
or operators, in the disposal of, or to produce, store, handle, treat,
release, or transport, any hazardous waste or hazardous substance other than
in accordance with applicable law; to the best of such Borrower's knowledge,
none of such
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Borrower's properties or assets has ever been designated or identified in any
manner pursuant to any environmental protection statute as a hazardous waste
or hazardous substance disposal site, or a candidate for closure pursuant to
any environmental protection statute; no lien arising under any environmental
protection statute has attached to any revenues or to any real or personal
property owned by such Borrower or any Subsidiary; and neither such Borrower
nor any Subsidiary has received a summons, citation, notice, or directive
from the Environmental Protection Agency or any other federal, state or other
governmental agency concerning any action or omission by such Borrower or any
Subsidiary resulting in the releasing, or otherwise disposing of hazardous
waste or hazardous substances into the environment.
5.12 TAXES. Such Borrower and each Subsidiary has filed or caused to
be filed all tax returns required to be filed, and has paid, or has made
adequate provision for the payment of, all taxes reflected therein.
5.13 SUBSIDIARIES. Such Borrower does not own any stock, partnership
interest or other equity securities of any Person, except for Permitted
Investments.
5.14 GOVERNMENT CONSENTS. Such Borrower and each Subsidiary has
obtained all consents, approvals and authorizations of, made all declarations
or filings with, and given all notices to, all governmental authorities which
are necessary for the continued operation of such Borrower's business as
currently conducted, except where the failure to obtain such consent,
approval or authorization, to make any such declaration or filing or to give
any such notice would not reasonably be expected to have a Material Adverse
Effect.
5.15 FULL DISCLOSURE. No representation, warranty or other statement
made by such Borrower in any certificate or written statement furnished to
Lender by such Borrower in connection with the transaction contemplated by
this Agreement, taken as a whole with Cymer's filings with the Securities and
Exchange Commission contains any untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements contained
in such certificates or statements not misleading, it being recognized by the
Lenders that the projections and forecasts provided by such Borrower are not
to be viewed as facts and that actual results during the period or periods
covered by any such projections and forecasts may differ from the projected
or forecasted results).
6. AFFIRMATIVE COVENANTS
Each Borrower covenants and agrees that, until payment in full of all
outstanding Obligations, and for so long as Lenders may have any commitment
to make a Credit Extension hereunder, such Borrower shall do all of the
following (provided that where indicated such covenant shall only apply to
Cymer):
6.1 GOOD STANDING. Such Borrower shall maintain or cause to be
maintained its and each of its Subsidiaries' corporate existence and good
standing in its jurisdiction of incorporation or formation and maintain
qualification in each jurisdiction in which the failure to so qualify would
reasonably be expected to have a Material Adverse Effect. Such Borrower
shall maintain, and shall cause each of its Subsidiaries to maintain, to the
extent consistent with
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prudent management of Borrower's business, in force all licenses, approvals
and agreements, the loss of which would reasonably be expected to have a
Material Adverse Effect.
6.2 GOVERNMENT COMPLIANCE. Such Borrower shall meet, and shall
cause each Subsidiary to meet, the minimum funding requirements of ERISA with
respect to any employee benefit plans subject to ERISA. Such Borrower shall
comply, and shall cause each Subsidiary to comply, with all statutes, laws,
ordinances and government rules and regulations to which it is subject,
noncompliance with which could have a Material Adverse Effect.
6.3 FINANCIAL STATEMENTS, REPORTS, CERTIFICATES. Cymer shall
deliver to Lenders: (a) as soon as available, but in any event within thirty
(30) days after the end of each quarter, a company-prepared consolidated
balance sheet and income statement covering Cymer's consolidated operations
during such period, certified by an officer of Cymer reasonably acceptable to
Lenders; (b) as soon as available, but in any event within ninety (90) days
after the end of Cymer's fiscal year, audited consolidated financial
statements of Borrower prepared in accordance with GAAP, consistently
applied, together with an unqualified opinion of an independent certified
public accounting firm with respect to such financial statements, reasonably
acceptable to Lenders; (c) within three (3) days of filing, copies of all
statements, reports and notices sent or made available generally by Cymer to
its security holders or to any holders of Subordinated Debt and all reports
on Forms 10-K, 10-Q or 8-K filed with the Securities and Exchange Commission;
(d) promptly upon receipt of notice thereof, a report of any legal actions
pending or threatened against Cymer or any Subsidiary which could result in
damages or costs to Cymer or such Subsidiary of $2,500,000 or more; and (e)
such budgets, sales projections, operating plans or other financial
information as Lenders may reasonably request from time to time.
Borrower shall deliver to Lenders with the quarterly financial statements a
Compliance Certificate signed by a Responsible Officer in substantially the
form of EXHIBIT D hereto.
6.4 INVENTORY; RETURNS. Borrower shall, within a reasonable time
period, notify Servicing Agent of all returns and recoveries and of all
disputes and claims, where the return, recovery, dispute or claim involves
more than $2,500,000.
6.5 TAXES. Such Borrower shall make, and shall cause each
Subsidiary to make, due and timely payment or deposit of all material
foreign, federal, state, and local taxes, assessments, duties or
contributions required of such Borrower or such Subsidiary by law, and will
execute and deliver to Lenders, on demand, appropriate certificates attesting
to the payment or deposit thereof; and such Borrower shall make, and shall
cause each Subsidiary to make, timely payment or deposit of all material tax
payments and withholding taxes required of such Borrower or such Subsidiary
by applicable laws, including, but not limited to, those laws concerning
F.I.C.A., F.U.T.A., state disability, and local, state, federal and foreign
income taxes; PROVIDED that such Borrower or such Subsidiary need not make
any payment if the amount or validity of such payment is contested in good
faith by appropriate proceedings and is reserved against by such Borrower to
the extent required by GAAP.
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6.6 INSURANCE. Borrower, at its expense, shall keep all of its
material assets insured against loss or damage by fire, theft, explosion,
sprinklers, and all other hazards and risks, and in such amounts as are
ordinarily insured against by other owners in similar businesses conducted in
the locations where Borrower's business is conducted on the date hereof.
Borrower shall also maintain insurance relating to Borrower's ownership use
of its assets and such other property in amounts and types as are customary
to businesses similar to Borrower's.
6.7 PRINCIPAL DEPOSITORY. Such Borrower shall maintain its
principal domestic depository and operating accounts with SVB.
6.8 TANGIBLE NET WORTH. Cymer, Inc. shall maintain, on a
consolidated basis, as of the last day of each calendar quarter, a Tangible
Net Worth of not less than Two Hundred Seventy-Five Million Dollars
($275,000,000) PLUS Fifty Percent (50%) of Borrower's quarterly net income
(after taxes) (with no subtraction for losses) beginning with the period
ending September 30, 1997, with the understanding that in connection with the
calculation of Tangible Net Worth the assets and liabilities of Borrower
associated with the Foreign Exchange Contracts shall be included therein on a
Net Basis.
6.9 MINIMUM CASH FLOW RATIO. Cymer, Inc. shall maintain, on a
consolidated basis, as of the last calendar day of each quarter with respect
to the immediately preceding four quarters, a Cash Flow Ratio of at least
1.00 to 1.00. "Cash Flow Ratio" is defined as earnings before interest and
taxes plus depreciation and amortization, DIVIDED BY total Commitments for
both Lenders.
6.10 RIGHT TO INSPECT. Any Lender (through any of their officers,
employees, or agents) shall have the right, upon reasonable prior notice,
from time to time during Borrower's usual business hours, to inspect
Borrower's Books in order to verify Borrower's financial condition.
6.11 DESIGNATED SENIOR INDEBTEDNESS. The Obligations hereby shall at
all times constitute "Designated Senior Indebtedness" under all Subordinated
Debt obligations.
6.12 FURTHER ASSURANCES. At any time and from time to time such
Borrower shall execute and deliver such further instruments and take such
further action as may reasonably be requested by Servicing Agent or Lenders
to effect the purposes of this Agreement.
7. NEGATIVE COVENANTS
Each Borrower covenants and agrees that, so long as any credit
hereunder shall be available and until payment in full of the outstanding
Obligations or for so long as Lenders may have any commitment to make any
Credit Extensions, such Borrower will not do any of the following:
7.1 DISPOSITIONS. Convey, sell, lease, transfer or otherwise
dispose of (collectively, a "Transfer"), or permit any of its Subsidiaries to
Transfer, all or any part of their respective businesses or properties, other
than: (i) Transfers of Inventory in the ordinary course of business; (ii)
Transfers of non-exclusive licenses or similar arrangements for the use of
the property of Borrower or its Subsidiaries; (iii) Transfers of worn-out or
obsolete Equipment; (iv)
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Transfers which constitute liquidation of Investments permitted under Section
7.7; (v) Transfers from any Subsidiary to another Subsidiary or Cymer and any
Transfers from Cymer to a Subsidiary that are Permitted Investments; or (vi)
other Transfers not otherwise permitted by this Section 7.1 not exceeding 10%
of Borrower's Tangible Net Worth in any fiscal year.
7.2 CHANGE IN BUSINESS. Engage in any business, or permit any of
its Subsidiaries to engage in, any business, other than (i) the businesses
currently engaged in by such Borrower or its Subsidiaries and (ii) any
business substantially similar or related thereto (or incidental thereto), or
suffer a material change in such Borrower's ownership, management or
directors, other than the sale by such Borrower of equity securities of the
Borrower. Such Borrower shall not, without thirty (30) days prior written
notification to Lenders, relocate its chief executive office or change its
name.
7.3 MERGERS OR ACQUISITIONS. Merge or consolidate, or permit any of
its Subsidiaries to merge or consolidate, with or into any other business
organization, or acquire, or permit any of its Subsidiaries to acquire, all
or substantially all of the capital stock or property of another Person
EXCEPT (i) any Subsidiary may merge or consolidate with any Subsidiary or
Cymer; or (ii) Cymer or any Subsidiary may merge or consolidate with or
acquire all or substantially all of the capital stock or property of a Person
in connection with a transaction in which the consideration consists of
Capital stock of Cymer or any Subsidiary or, to the extent any consideration
consists of cash or other property (other than capital stock) such
transaction would be permitted as an Investment permitted under Section
7.7(o); PROVIDED that in any merger or consolidation involving Borrower,
Borrower shall be the surviving corporation, PROVIDED, FURTHER, such
transaction do not violate any other term or provision of this Agreement; and
PROVIDED, FURTHER, the aggregate value of the assets acquired in any such
merger do not exceed 25% of such Borrower's Tangible Net Worth as of the end
of the month prior to the effective date of the merger, and any assets of the
corporation acquired in the merger are not subject to any liens or
encumbrances, except Permitted Liens.
7.4 INDEBTEDNESS. Create, incur, assume or be or remain liable with
respect to any Indebtedness, or permit any Subsidiary so to do, other than
Permitted Indebtedness.
7.5 ENCUMBRANCES. Create, incur, assume or suffer to exist any Lien
with respect to any of its property, or assign or otherwise convey any right
to receive income, including the sale of any Accounts (other than delinquent
Accounts in the ordinary course of business), or permit any of its
Subsidiaries so to do, except for Permitted Liens.
7.6 DISTRIBUTIONS. Pay any dividends or make any other distribution
or payment on account of or in redemption, retirement or purchase of any
capital stock (collectively, a "Restricted Payment"), except for: (i)
repurchases of stock from former employees of Borrower in accordance with the
terms of repurchase or similar agreements between Borrower and such
employees, PROVIDED, HOWEVER, that immediately prior to and following such
repurchases there exists no Default or Event of Default under the Loan
Documents; (ii) Cymer may pay any dividend or distribution payable in Cymer's
or a Subsidiary's equity securities; (iii) Cymer may make any redemption of
securities with the proceeds received from the substantially concurrent issue
of new shares of capital stock; (iv) Cymer may distribute and redeem rights
under any stockholder rights plan; and (v) Cymer may
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make other Restricted Payments not to exceed 25% of Cymer's aggregate net
income for fiscal quarters ending after the date hereof; PROVIDED no
Restricted Payment that also constitutes a Permitted Investment shall be
prohibited by the application of this Section. This Section 7.6 is not
intended to apply to and shall not apply to payments of interest on,
prepayments, redemptions or defeasances of, sinking fund payments with
respect to or deliveries of securities, cash or other property upon
conversion of convertible Subordinated Indebtedness.
7.7 INVESTMENTS. Directly or indirectly acquire or own, or make any
Investment in or to any Person, or permit any of its Subsidiaries so to do,
other than Permitted Investments.
7.8 TRANSACTIONS WITH AFFILIATES. Directly or indirectly enter into
or permit to exist any material transaction with any Affiliate of such
Borrower except for transactions that are in the ordinary course of
Borrower's business, upon fair and reasonable terms; directly or indirectly
permit to exist transactions between Subsidiaries except for such
transactions that are in the ordinary course of Person's business, upon fair
and reasonable terms.
7.9 SUBORDINATED DEBT. Make any payment in respect of any
Subordinated Debt, or permit any of its Subsidiaries to make any such
payment, except in compliance with the terms of such Subordinated Debt, or
amend in any manner adverse to Lenders any provision contained in any
documentation relating to the Subordinated Debt without Lenders' prior
written consent, including changes to payment terms or any rights attendant
to the holders of senior debt.
7.10 COMPLIANCE. Become an "investment company" or a Person
controlled by an "investment company," within the meaning of the Investment
Company Act of 1940, or become principally engaged in, or undertake as one of
its important activities, the business of extending credit for the purpose of
purchasing or carrying margin stock, or use the proceeds of any Credit
Extension for such purpose or fail to meet the minimum funding requirements
of ERISA, or permit a Reportable Event or Prohibited Transaction, as defined
in ERISA, to occur, or fail to comply with the Federal Fair Labor Standards
Act or violate any law or regulation, which violation could have a Material
Adverse Effect, or permit any of its Subsidiaries to do any of the foregoing.
8. EVENTS OF DEFAULT
Any one or more of the following events shall constitute an event of
default by a Borrower under this Agreement (an "Event of Default"):
8.1 PAYMENT DEFAULT. If such Borrower fails to pay, (i) when due,
any principal or interest payment and (ii) within 30 days of receipt of any
invoice therefor, any other payment Obligation.
8.2 COVENANT DEFAULT.
8.2.1 If such Borrower fails to perform any obligation under
SECTIONS 6.7, 6.8, 6.9, 6.10, 6.11 OR 6.12 or violates any of the covenants
contained in Article 7 of this Agreement, or
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8.2.2 If such Borrower fails or neglects to perform, keep,
or observe any other material term, provision, condition or covenant
contained in this Agreement or in any of the other Loan Documents, and as to
any default of such other term, provision, condition or covenant which can be
cured, has failed to cure such default within ten (10) days after such
Borrower receives notice thereof or any officer of such Borrower becomes
aware thereof; PROVIDED, HOWEVER, that if such default cannot by its nature
be cured within the ten (10) day period or cannot, after diligent attempts by
such Borrower, be cured within such ten (10) day period, and such default is
likely to be cured within a reasonable time, then such Borrower shall have an
additional reasonable period (which shall not in any case exceed thirty (30)
days) to attempt to cure such default, and within such reasonable time period
the failure to have cured such default shall not be deemed an Event of
Default (PROVIDED that no Credit Extension will be required to be made during
such cure period);
8.3 MATERIAL ADVERSE CHANGE. If there occurs a material adverse
change in Borrower's business or financial condition, or if there is a
material impairment of the prospect of repayment of any portion of the
Obligations or a material impairment of the value of the assets of Cymer or
Cymer Japan;
8.4 ATTACHMENT. If any material portion of such Borrower's assets
is attached, seized, subjected to a writ or distress warrant, or is levied
upon, or comes into the possession of any trustee, receiver or person acting
in a similar capacity and such attachment, seizure, writ or distress warrant
or levy has not been removed, discharged or rescinded within ten (10) days,
or if such Borrower is enjoined, restrained, or in any way prevented by court
order from continuing to conduct all or any material part of its business
affairs, or if a judgment or other claim becomes a lien or encumbrance upon
any material portion of such Borrower's assets, or if a notice of lien, levy,
or assessment is filed of record with respect to any of such Borrower's
assets by the United States Government, or any department, agency, or
instrumentality thereof, or by any state, county, municipal, or governmental
agency, and the same is not paid within ten (10) days after Borrower receives
notice thereof, PROVIDED that none of the foregoing shall constitute an Event
of Default where such action or event is stayed or an adequate bond has been
posted pending a good faith contest by such Borrower (PROVIDED that no Credit
Extensions will be required to be made during such cure period);
8.5 INSOLVENCY. If such Borrower becomes insolvent, or if an
Insolvency Proceeding is commenced by such Borrower, or if an Insolvency
Proceeding is commenced against Borrower and is not dismissed or stayed
within 45 days (PROVIDED that no Credit Extensions will be made prior to the
dismissal of such Insolvency Proceeding);
8.6 OTHER AGREEMENTS. If there is a default in any agreement to
which Borrower is a party with a third party or parties resulting in a right
by such third party or parties, whether or not exercised, to accelerate the
maturity of any Indebtedness in an amount in excess of $2,500,000 or which
could have a Material Adverse Effect;
8.7 JUDGMENTS. If a judgment or judgments for the payment of money
in an amount, individually or in the aggregate, of at least $2,500,000 shall
be rendered against such Borrower and shall remain unsatisfied and unstayed
for a period of thirty (30) days (PROVIDED that no Credit Extensions will be
made prior to the satisfaction or stay of such judgment);
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8.8 MISREPRESENTATIONS. If any material misrepresentation or
material misstatement exists now or hereafter, with respect to the date when
such misrepresentation or misstatement was made or was deemed to have been
made, in any warranty or representation set forth herein or in any
certificate delivered to Servicing Agent or any Lender by any Responsible
Officer pursuant to this Agreement or to induce Servicing Agent or any Lender
to enter into this Agreement or any other Loan Document; or
8.9 GUARANTY. Any guaranty of all or a portion of the Obligations
ceases for any reason to be in full force and effect, or any Guarantor fails
to perform any obligation under any guaranty of all or a portion of the
Obligations, or any material misrepresentation or material misstatement
exists now or hereafter, with respect to the date when such misrepresentation
or misstatement was made or was deemed to have been made, in any warranty or
representation set forth in any guaranty of all or a portion of the
Obligations or in any certificate delivered to Servicing Agent or any Lender
in connection with such guaranty.
9. SERVICING AGENT'S AND LENDERS' RIGHTS AND REMEDIES
9.1 RIGHTS AND REMEDIES. Upon the occurrence and during the
continuance of a Default or Event of Default, neither Servicing Agent nor any
Lender shall have any further obligation to advance money or extend other
credit to or for the benefit of Borrowers under this Agreement or under any
other agreement between or among Borrowers or Servicing Agent or any Lender.
In addition, upon the occurrence and during the continuance of an Event of
Default Lenders, or Servicing Agent, on behalf of Lenders, at the election of
Requisite Lenders, may, without prior notice of their election and without
demand, do any one or more of the following, all of which are authorized by
Borrowers:
9.1.1 Declare all Obligations, whether evidenced by this
Agreement, by any of the other Loan Documents, or otherwise, immediately due
and payable (PROVIDED that upon the occurrence of an Event of Default
described in Section 8.5 all Obligations shall become immediately due and
payable without any action by Servicing Agent or Lenders); and
9.1.2 Exercise all rights and remedies available to Lenders
under law.
9.2 [RESERVED]
9.3 SETOFF.
9.3.1 Regardless of the adequacy of any collateral or other
means of obtaining repayment of the Obligations, any deposits, balances or
other sums credited by or due from the head offices of Lenders or any of
their branch offices to Borrower may, at any time and from time to time after
the occurrence and during the continuance of an Event of Default hereunder,
without prior notice to Borrower or compliance with any other condition
precedent now or hereafter imposed by statute, rule of law, or otherwise (all
of which are hereby expressly waived to the extent permitted by law) be set
off, appropriated, and applied by Lenders against any and all obligations of
Borrower to Lenders or any of their Affiliates in such manner as the head
offices of Lenders or any of their branch offices in their sole discretion
may determine.
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9.3.2 Unless otherwise expressly provided herein or
otherwise agreed to by the Lenders, all interest, fees and principal payments
on the Loans to Borrower hereunder are to be divided among Lenders in the
same proportion as each Lender's pro rata share of the aggregate Commitments.
Any sums obtained from a Borrower by any Lender by reason of the exercise of
its rights of setoff or banker's lien or otherwise shall be shared among all
Lenders in the same proportion and applied only to Obligations of such
Borrower under this Agreement. Nothing in this Section 9.3.2 shall be deemed
to require the sharing of Lenders of collections (other than by setoff or
banker's lien) with respect to any other obligations of a Borrower or any
Subsidiary to any Lender.
9.4 [RESERVED]
9.5 LENDERS' EXPENSES. If after notice thereof Borrower fails to
pay any amounts or furnish any required proof of payment due to third persons
or entities, as required under the terms of this Agreement, then Lenders may
do any or all of the following: (a) make payment of the same or any part
thereof; (b) set up such reserves under the Committed Revolving Line as
Lenders deem necessary to protect Lenders from the exposure created by such
failure; or (c) obtain and maintain insurance policies of the type discussed
in this Agreement, and take any action with respect to such policies as
Lenders deem prudent. Any amounts so paid or deposited by Lenders shall
constitute Lenders' Expenses, shall be immediately due and payable, and shall
bear interest at the then applicable rate hereinabove provided. Any payments
made by Lenders shall not constitute an agreement by Lenders to make similar
payments in the future or a waiver by Lenders of any Event of Default under
this Agreement.
9.6 [RESERVED]
9.7 REMEDIES CUMULATIVE. Lenders' rights and remedies under this
Agreement, the Loan Documents, and all other agreements shall be cumulative.
Lenders shall have all other rights and remedies not inconsistent herewith as
provided under the Code, at law, or in equity. No exercise by Lenders of one
right or remedy shall be deemed an election, and no waiver by Lenders of any
Event of Default on Borrower's part shall be deemed a continuing waiver. No
delay by Lenders shall constitute a waiver, election, or acquiescence by
them. No waiver by Lenders shall be effective unless made in a written
document signed by Servicing Agent and Requisite Lenders and then shall be
effective only in the specific instance and for the specific purpose for
which it was given.
9.8 DEMAND; PROTEST. Each Borrower waives demand, protest, notice
of protest, notice of default or dishonor, notice of payment and nonpayment,
notice of any default, nonpayment at maturity, release, compromise,
settlement, extension, or renewal of accounts, documents, instruments,
chattel paper, and guaranties at any time held by Servicing Agent or any
Lender on which such Borrower may in any way be liable.
10. NOTICES
Unless otherwise provided in this Agreement, all notices or demands by
any party relating to this Agreement or any other agreement entered into in
connection herewith shall be in
-28-
<PAGE>
writing and (except for financial statements and other informational
documents which may be sent by first-class mail, postage prepaid) shall be
personally delivered or sent by a recognized overnight delivery service,
certified mail, postage prepaid, return receipt requested, or by telecopy to
Borrower or to Servicing Agent or any Lender, as the case may be, at its
addresses set forth below:
If to Cymer: CYMER, INC.
16750 Via Del Campo Court
San Diego, California 92127
Attn: Mr. William Angus
Fax: 619-618-3090
If to Cymer Japan: CYMER JAPAN, INC.
1-22-6 Ichikawa
Ichikawa, Chiba,
JAPAN 272
With a copy to: Cymer, Inc.
16750 Via Del Campo Court
San Diego, California 92127
Attn: Mr. William Angus
Fax: 619-618-3090
If to SVB: SILICON VALLEY BANK
3003 Tasman Drive
Santa Clara, CA 95054
Attn: Legal Department
Fax: 408/496-2419
With a copy to: 5414 Oberlin Drive, Suite 230
San Diego, CA 92121
Attn: Manager
Fax: 619-535-1611
If to BOH: BANK OF HAWAII
P.O. Box 2900
Honolulu, HI 96846-6000
Fax: 808-537-8301
If to Servicing Agent: SILICON VALLEY BANK
3003 Tasman Drive
Santa Clara, CA 95054
Attn: Legal Department
Fax: 408/496-2419
-29-
<PAGE>
With a copy to: 5414 Oberlin Drive, Suite 230
San Diego, CA 92121
Attn: Manager
Fax: 619-535-1611
NOTICES TO ONE LENDER SHALL NOT BE DEEMED NOTICE TO ANY OTHER LENDER.
The parties hereto may change the address at which they are to receive
notices hereunder, by notice in writing in the foregoing manner given to the
other.
11. ASSIGNMENTS; PARTICIPATIONS
11.1 Any Lender may, with the written consent of each Borrower (not
to be unreasonably withheld), and with the written consent of each other
Lender at any time assign and delegate to one or more assignees (PROVIDED
that no written consent any Lender or Borrowers shall be required in
connection with any assignment and delegation by a Lender to an affiliate of
such Lender) (each an "Assignee") all, or any ratable part of all, of the
Advances, the Commitments and the other rights and obligations of such Lender
hereunder, in a minimum amount of $5,000,000; PROVIDED, HOWEVER, that (i)
each Borrower may continue to deal solely and directly with such Lender in
connection with the interest so assigned to an Assignee until (A) written
notice of such assignment, together with payment instructions, addresses and
related information with respect to the Assignee, shall have been given to
each Borrower by such Lender and the Assignee; (B) such Lender and its
Assignee shall have delivered to each Borrower an Assignment and Acceptance
("Assignment and Acceptance") together with any note or notes subject to such
assignment.
11.2 From and after the date on which each other Lender notifies the
assignor Lender that it has received an executed Assignment and Acceptance
(i) the Assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, shall have the rights and obligations of a Lender
under the Loan Documents, and (ii) the assignor Lender shall, to the extent
that rights and obligations hereunder and under the other Loan Documents have
been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Loan Documents.
11.3 Within five (5) Business Days after its receipt of notice by
Lender that it has received an executed Assignment and Acceptance, Borrower
shall execute and deliver to the Assignee a new note evidencing such
Assignee's assigned Advances and Commitment and, if the assignor Lender has
retained a portion of its Advances and its Commitment, a replacement note in
the principal amount of the Advances retained by the assignor Lender (such
note to be in exchange for, but not in payment of, the note held by such
Lender). Immediately upon each Assignee's making its processing fee payment
under the Assignment and Acceptance, this Agreement shall be deemed to be
amended to the extent, but only to the extent, necessary to reflect the
addition of the Assignee and the resulting adjustment of the Commitments
arising therefrom. The Commitment allocated to each Assignee shall reduce
such Commitments of the assigning Lender PRO TANTO.
-30-
<PAGE>
11.4 Any Lender may at any time sell to one or more commercial banks
or other Persons not Affiliates of Borrower (a "Participant") participating
interests in any Credit Extensions, the Commitment of such Lender and the
other interests of such Lender (the "Originating Lender") hereunder and under
the other Loan Documents; PROVIDED, HOWEVER, that (i) the originating
Lender's obligations under this Agreement shall remain unchanged, (ii) the
originating Lender shall remain solely responsible for the performance of
such obligations, (iii) Borrowers shall continue to deal solely and directly
with the originating Lender in connection with the originating Lender's
rights and obligations under this Agreement and the other Loan Documents, and
(iv) no Lender shall transfer or grant any participating interest under which
the Participant shall have rights to approve any amendment to, or any consent
or waiver with respect to, this Agreement or any other Loan Document, except
to the extent such amendment, consent or waiver would otherwise require
unanimous consent of each of the Lenders under Section 13.5 (without giving
effect to the proviso to the definition of "Requisite Lenders").
12. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER
This Agreement shall be governed by, and construed in accordance with,
the internal laws of the State of California, without regard to principles of
conflicts of law. Each of Borrowers, Servicing Agent and Lenders hereby
submits to the exclusive jurisdiction of the state and Federal courts located
in the County of Santa Clara, State of California. EACH OF BORROWER,
SERVICING AGENT AND LENDERS HEREBY WAIVES ITS RIGHTS TO A JURY TRIAL OF ANY
CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF ANY OF THE LOAN
DOCUMENTS OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN, INCLUDING CONTRACT
CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. EACH PARTY RECOGNIZES AND AGREES THAT THE FOREGOING WAIVER
CONSTITUTES A MATERIAL INDUCEMENT FOR IT TO ENTER INTO THIS AGREEMENT. EACH
PARTY REPRESENTS AND WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH ITS LEGAL
COUNSEL AND THAT IT KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS
FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
13. GENERAL PROVISIONS
13.1 SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to
the benefit of the respective successors and permitted assigns of each of the
parties; PROVIDED, HOWEVER, that neither this Agreement nor any rights
hereunder may be assigned by Borrower without each Lender's prior written
consent, which consent may be granted or withheld in each Lender's sole
discretion. Each Lender shall have the right without the consent of or
notice to Borrower to sell, transfer, negotiate, or grant participation in
all or any part of, or any interest in, such Lender's obligations, rights and
benefits hereunder.
13.2 EXPENSES; TAXES; INDEMNIFICATION; SURVIVAL.
13.2.1 EXPENSES. Borrower shall pay on demand all expenses
of the Servicing Agent and Lenders in connection with the preparation, waiver
or amendment of this
-31-
<PAGE>
Agreement, the Loan Documents or other documents executed in connection
therewith, or the administration, default or collection of the Advances or
other Obligations or administration, default, collection in connection with
the Servicing Agent's or any Lender's exercise, preservation or enforcement
of any of its rights, remedies or options thereunder, including, without
limitation, fees of outside legal counsel or the allocated costs of in-house
legal counsel, accounting, consulting, brokerage or other similar
professional fees or expenses, and any fees or expenses associated with any
travel or other costs relating to any appraisals or examinations conducted in
connection with the Obligations or any collateral therefor, and the amount of
all such expenses shall, until paid, bear interest at the rate applicable to
principal hereunder (including any default rate).
13.2.2 TAXES, ETC. Borrower agrees to pay all governmental
taxes, assessments and other charges (except income, gross receipts, ad
valorem, intangibles, franchise or other similar taxes imposed on Servicing
Agent or Lenders), including any interest or penalties thereon, at any time
payable or ruled to be payable in respect of the existence, execution or
delivery of the Loan Documents or the issuance of the notes hereunder by
reason of any existing or hereafter enacted federal, state, local or foreign
statute, and to indemnify and hold Servicing Agent and Lenders and each of
their successors and assigns harmless against liability in connection with
any such taxes, assessments or other charges.
13.2.3 GENERAL INDEMNITY. Borrower shall pay, indemnify, and
hold each Lender, the Servicing Agent and each of their respective officers,
directors, employees, counsel, agents and attorneys-in-fact (each, an
"Indemnified Person") harmless from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
charges, expenses or disbursements (including reasonable attorneys' fees and
costs) of any kind or nature whatsoever with respect to the execution,
delivery, enforcement, performance and administration of this Agreement and
any other Loan Documents, or the transactions contemplated hereby and thereby
(including, without limitation the Exchange Contracts), and with respect to
any investigation, litigation or proceeding (including any proceeding in
bankruptcy or appellate proceeding) related to this Agreement or the Advances
or the use of the proceeds thereof, whether or not any Indemnified Person is
a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); PROVIDED that Borrower shall have no obligation hereunder to
any Indemnified Person with respect to Indemnified Liabilities arising from
the gross negligence or willful misconduct of such Indemnified Person.
13.2.4 SURVIVAL; DEFENSE. The obligations in Sections 13.2.2
and 13.2.3 shall survive payment of all other Obligations. At the election
of any Indemnified Person, Borrower shall defend such Indemnified Person
using legal counsel satisfactory to such Indemnified Person in such person's
sole discretion, at the sole cost and expense of Borrower. All amounts owing
under Section 13.2 shall be paid within thirty (30) days after demand.
13.3 TIME OF ESSENCE. Time is of the essence for the performance of
all obligations set forth in this Agreement.
13.4 SEVERABILITY OF PROVISIONS. Each provision of this Agreement
shall be severable from every other provision of this Agreement for the
purpose of determining the legal enforceability of any specific provision.
-32-
<PAGE>
13.5 AMENDMENTS; INTEGRATION. No amendment or waiver of any
provision of this Agreement or any other Loan Document, and no consent with
respect to any departure by Borrower therefrom, shall be effective unless the
same shall be in writing and signed by the Requisite Lenders and Borrowers
and then such waiver shall be effective only in the specific instance and for
the specific purpose for which given; PROVIDED, HOWEVER, that no such waiver,
amendment or consent shall, unless in writing and signed by all Lenders and
Borrowers, do any of the following:
13.5.1 increase or extend the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to this Agreement) or subject
any Lender to any additional obligations;
13.5.2 postpone or delay any date fixed for any payment of
principal, interest, fees or other amounts due to the Lenders (or any of
them) hereunder or under any Loan Document;
13.5.3 reduce the principal of, or the rate of interest
specified herein on any Loan, or of any fees or other amounts payable
hereunder or under any Loan Document;
13.5.4 change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Advances which shall be required
for the Lenders or any of them to take any action hereunder;
13.5.5 amend this Section 13.5 or any other provision herein
requiring the consent or other action of all Lenders; or
13.5.6 discharge any guarantor of the Obligations, or release
all or substantially all of any collateral for the Obligations except as
otherwise may be provided in the Loan Documents or except where the
consent of the Requisite Lenders only is specifically provided for;
and, PROVIDED, FURTHER, that no amendment, waiver or consent shall, unless in
writing and signed by Servicing Agent in addition to the Requisite Lenders or
all the Lenders, as the case may be, affect the rights or duties of Servicing
Agent under this Agreement or any other Loan Document.
As between Borrowers, on the one hand, and Lenders or Servicing Agent on
the other hand, all prior agreements, understandings, representations,
warranties, and negotiations between the parties hereto with respect to the
subject matter of this Agreement, if any, are merged into this Agreement and
the Loan Documents.
13.6 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by different parties on separate counterparts, each of
which, when executed and delivered, shall be deemed to be an original, and
all of which, when taken together, shall constitute but one and the same
Agreement.
-33-
<PAGE>
13.7 SURVIVAL. All covenants, representations and warranties made in
this Agreement shall continue in full force and effect so long as any
Obligations (other than inchoate Obligations) remain outstanding.
13.8 CONFIDENTIALITY. In handling any confidential information each
Lender shall exercise the same degree of care that it exercises with respect
to their own proprietary information of the same types to maintain the
confidentiality of any non-public information thereby received or received
pursuant to this Agreement except that disclosure of such information may be
made (i) to the subsidiaries or Affiliates of such Lender in connection with
its present or prospective business relations with Borrower, (ii) to
prospective transferees or purchasers of any interest in the Advances,
PROVIDED that they have entered into a comparable confidentiality agreement
in favor of Borrower and have delivered a copy to Borrower, (iii) as required
by law, regulations, rule or order, subpoena, judicial order or similar order
and (iv) as may be required in connection with the examination, audit or
similar investigation of such Lender. Confidential information hereunder
shall not include information that either: (a) is in the public domain or in
the knowledge or possession of any Lender when disclosed to such Lender, or
becomes part of the public domain after disclosure to such Lender through no
fault of such Lender; or (b) is disclosed to such Lender by a third party,
PROVIDED such Lender does not have actual knowledge that such third party is
prohibited from disclosing such information.
13.9 NO GUARANTY BY CYMER JAPAN. Notwithstanding any provision of
this Agreement or any Loan Document to the contrary, Cymer Japan does not
guaranty and shall not be deemed to guaranty or have any liability for the
Obligations of Cymer hereunder or under any Loan Document.
-34-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
BORROWER:
CYMER, INC.
By: /S/ WILLIAM A. ANGUS, III
---------------------------------------
Title: Senior Vice President, Chief
Financial Officer
CYMER JAPAN, INC.
By: /S/ ROBERT A. AKINS
---------------------------------------
Title: President
LENDERS:
SILICON VALLEY BANK
By: /S/ JOHN OTTERSON
---------------------------------------
Title: Vice President
BANK OF HAWAII
By: /S/ KENNETH LOVELESS
---------------------------------------
Title: Vice President
SERVICING AGENT:
SILICON VALLEY BANK
By: /S/ JOHN OTTERSON
---------------------------------------
Title: Vice President
-35-
<PAGE>
Schedule
To
Loan and Security Agreement
COMMITMENTS
COMMITTED REVOLVING LINE:
<TABLE>
<CAPTION>
Lender Commitment Commitment Percentage*
<S> <C> <C>
Silicon Valley Bank $7,500,000 50%
Bank of Hawaii $7,500,000 50%
</TABLE>
* provided, however, that all Optional Currency Advances shall be made by BOH
exclusively
<PAGE>
SCHEDULES
TO
LOAN AND SECURITY AGREEMENT
DISCLOSURES
None
<PAGE>
EXHIBIT A
[Reserved]
<PAGE>
EXHIBIT B
(NON OPTIONAL CURRENCY ADVANCES)
LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM
TO: CENTRAL CLIENT SERVICE DIVISION DATE: _________________
FAX#: (408) __________ TIME: ________________
FROM:______________________________________________________________________
BORROWER'S NAME
FROM:______________________________________________________________________
AUTHORIZED SIGNER'S NAME
___________________________________________________________________________
AUTHORIZED SIGNATURE
PHONE:_____________________________________________________________________
FROM ACCOUNT #_____________________ TO ACCOUNT#____________________________
- ---------------------------------------------------------------------------
REQUESTED TRANSACTION TYPE REQUEST DOLLAR AMOUNT
-------------------------- ---------------------
PRINCIPAL INCREASE (ADVANCE) $ ____________________________
PRINCIPAL PAYMENT (ONLY) $ ____________________________
INTEREST PAYMENT (ONLY) $ ____________________________
PRINCIPAL AND INTEREST (PAYMENT) $ ____________________________
OTHER INSTRUCTIONS:____________________________________________________
- ---------------------------------------------------------------------------
All representations and warranties of Borrower stated in the Loan and
Security Agreement are true, correct and complete in all material respects as
of the date of the telephone request for and Advance confirmed by this
Advance Request; provided, however, that those representations and warranties
expressly referring to another date shall be true, correct and complete in
all material respects as of such date.
- ---------------------------------------------------------------------------
BANK USE ONLY:
TELEPHONE REQUEST:
The following person is authorized to request the loan payment transfer/loan
advance on the advance designated account and is known to me.
-------------------------------------------------------------------------
Authorized Requester
___________________________________
Authorized Signature (Bank)
Phone #____________________________
- ---------------------------------------------------------------------------
<PAGE>
EXHIBIT B
(OPtional Currency Advances)
LOAN PAYMENT/ADVANCE TELEPHONE REQUEST FORM
TO: CENTRAL CLIENT SERVICE DIVISION DATE: _________________
FAX#: (408) __________ TIME: ________________
FROM:______________________________________________________________________
BORROWER'S NAME
FROM:______________________________________________________________________
AUTHORIZED SIGNER'S NAME
___________________________________________________________________________
AUTHORIZED SIGNATURE
PHONE:_____________________________________________________________________
FROM ACCOUNT #_____________________ TO ACCOUNT#____________________________
- ---------------------------------------------------------------------------
REQUESTED TRANSACTION TYPE REQUEST DOLLAR AMOUNT
-------------------------- ---------------------
PRINCIPAL INCREASE (ADVANCE) ______________________________
PRINCIPAL PAYMENT (ONLY) ______________________________
INTEREST PAYMENT (ONLY) ______________________________
PRINCIPAL AND INTEREST (PAYMENT) ______________________________
OTHER INSTRUCTIONS:____________________________________________________
- ---------------------------------------------------------------------------
All representations and warranties of Borrower stated in the Loan and Security
Agreement are true, correct and complete in all material respects as of the date
of the telephone request for and Advance confirmed by this Advance Request;
provided, however, that those representations and warranties expressly referring
to another date shall be true, correct and complete in all material respects as
of such date.
- ---------------------------------------------------------------------------
BANK USE ONLY:
TELEPHONE REQUEST:
The following person is authorized to request the loan payment transfer/loan
advance on the advance designated account and is known to me.
-------------------------------------------------------------------------
Authorized Requester
___________________________________
Authorized Signature (Bank)
Phone #____________________________
- ---------------------------------------------------------------------------
Concurred In By: Agreed: Agreed:
Cymer, Inc. Silicon Valley Bank Bank of Hawaii
<PAGE>
By____________________ By___________________ By_______________
Title: Title: Title:
<PAGE>
EXHIBIT C
CERTIFICATE
The undersigned hereby certifies as follows:
I, _______________________, am the duly elected and acting
___________________ of __________________________ ("Borrower").
This certificate is delivered pursuant to the Loan and Security Agreement
(the "Agreement") by and between Borrower and Silicon Valley Bank and Bank of
Hawaii. The terms used in this Certificate which are defined in the Agreement
have the same meaning herein as ascribed to them therein.
Borrower is confirming its request to convert Prime Rate Based Advances
to LIBOR Based Rate Advances as follows:
(a) The amount of the Advance to be converted from a Prime Rate Based
Advance to a LIBOR Based Rate Advances is __________________________ and this
amount conforms to the requirements of the Agreement.
(b) The date on which such conversion is to be effected is
___________________, which is three Business Days from the date hereof.
Borrower is confirming its request to continue existing a LIBOR Based Rate
Advance with the following new Interest Period relating thereto and this
request is being made at least three Business Days prior to the expiration of
the current Interest Period relating to such Advance:
The Interest Period relating to the continuation of existing LIBOR Based
Rate Advances is to be _________________________.
All representations and warranties of Borrower stated in the Loan
Agreement are true, correct and complete in all material respects as of the
date of this request; provided, however, that those representations and
warranties expressly referring to another date shall be true, correct and
complete in all material respects as of such date.
IN WITNESS WHEREOF, this Borrowing Certificate is executed by the
undersigned as of this _________ day of ______________, 19___.
_________________________________
By: _____________________________
Title:
<PAGE>
EXHIBIT D
COMPLIANCE CERTIFICATE
TO: SILICON VALLEY BANK
FROM:
The undersigned authorized officer of CYMER, INC. hereby certifies that
in accordance with the terms and conditions of the Loan and Security
Agreement between Borrower and Lenders (the "Agreement"), (i) Borrower is in
complete compliance for the period ending ______________ with all required
covenants except as noted below and (ii) all representations and warranties
of Borrower stated in the Agreement are true and correct in all material
respects as of the date hereof. Attached herewith are the required documents
supporting the above certification. The Officer further certifies that these
are prepared in accordance with Generally Accepted Accounting Principles
(GAAP) (except for the absence of footnotes) and are consistently applied
from one period to the next except as explained in an accompanying letter or
footnotes. The Officer expressly acknowledges that no borrowings may be
requested by the Borrower at any time or date of determination that Borrower
is not in compliance with any of the terms of the Agreement, and that such
compliance is determined not just at the date this certificate is delivered.
Please indicate compliance status by circling Yes/No under "Complies"
column.
<TABLE>
<CAPTION>
REPORTING COVENANT REQUIRED COMPLIES
------------------ -------- --------
<S> <C> <C>
QUARTERLY FINANCIAL STATEMENTS QUARTERLY WITHIN 30 DAYS YES NO
ANNUAL (CPA AUDITED) FYE WITHIN 90 DAYS YES NO
</TABLE>
<TABLE>
<CAPTION>
FINANCIAL COVENANT REQUIRED ACTUAL COMPLIES
------------------ ----------------- ------ --------
MAINTAIN ON A QUARTERLY BASIS:
<S> <C> <C> <C>
TANGIBLE NET WORTH 275,000,000 + 50% PROFITS _____ YES NO
CASH FLOW 1.0 _____ YES NO
</TABLE>
------------------------------------
BANK USE ONLY
RECEIVED BY:______________________
DATE:_____________________________
REVIEWED BY:______________________
COMPLIANCE STATUS: YES / NO
------------------------------------
COMMENTS REGARDING EXCEPTIONS:
Sincerely,
_______________________ DATE:_______________
SIGNATURE
________________________
TITLE
<PAGE>
EXHIBIT 10.11
AMENDMENT TO LOAN AGREEMENT
BORROWERS: CYMER, INC. AND CYMER JAPAN, INC.
DATE: APRIL 27, 1998
THIS AMENDMENT TO LOAN AGREEMENT is entered into between SILICON VALLEY
BANK ("Silicon") and BANK OF HAWAII ("BOH"), on the one side, Cymer, Inc.
("Cymer") and Cymer Japan, Inc. ("Cymer Japan"), on the other side.
The Parties agree to amend the Loan Agreement between them, dated December
8, 1997, as amended from time to time (the "Loan Agreement"), as follows,
effective as of the date hereof. (Capitalized terms used but not defined in
this Amendment, shall have the meanings set forth in the Loan Agreement.)
1. REVISED DEFINITIONS. Section 1.1 of the Loan Agreement is hereby
amended by replacing the definitions of "Maturity Date" and "Term Loans" and
with the following respective definitions:
"'COMMITTED REVOLVING LINE' means Twenty-Five Million Dollars
($25,000,000).
'INTEREST PERIOD' means (I) for each LIBOR Based Rate Advance, a period
of approximately one, two or three months as the Borrower may elect,
provided that the last day of an Interest Period for a LIBOR Based Rate
Advance shall be determined in accordance with the practices of the
LIBOR interbank market as from time to time in effect, provided,
further, in all cases such period shall expire not later than the
applicable Maturity Date and (II) for the Optional Currency Rate
Advance, a period of approximately three or six months as the Borrower
may elect, provided that the last day of an Interest Period for the
Optional Currency Rate Advance shall be determined in accordance with
the practices of the Tokyo interbank market as from time to time in
effect, provided, further, in all cases such period shall expire not
later than the applicable Revolving Maturity Date.
'OPTIONAL CURRENCY RATE' means, with respect to any Interest Period
regarding the Optional Currency Advance, 140 basis points PLUS the rate
per annum equal to the Euro Yen Tokyo Inter-bank Offered Rate as
announced by the Federation of Bankers Association of Japan two (2)
Business Days before the first day of such Interest Period for a period
approximately equal to such Interest Period and in an amount
approximately equal to such Advance, or, in the absence thereof, the
rate per annum determined by the Servicing Agent to be the per annum
rate of interest at which deposits in Japanese Yen are offered to the
Servicing Agent in the Tokyo inter-bank market in which the Servicing
Agent customarily participates at 11:00 A.M. (local time in such
interbank market) two (2) Business Days before the first day of such
Interest Period for a period approximately equal to such Interest
Period and in an amount approximately equal to the amount of such
Advance.
"PRIME BASED RATE" means an interest rate of the Prime Rate; and "LIBOR
BASED RATE" means the LIBOR Interest Rate for an identified Interest
Period plus 140 basis points.
'REVOLVING MATURITY DATE' means April 26, 1999, as such date may from
time to time be extended by lenders in their sole discretion pursuant
to this agreement."
<PAGE>
2. NEW DEFINITION. Section 1.1 of the Loan Agreement is hereby amended
by adding the following definition thereto:
"APRIL 1998 AMENDMENT" shall mean the Amendment to Loan Agreement dated
April 27, 1998 between Silicon and BOH, on the one side, and Cymer and
Cymer Japan, on the other side.
3. MODIFIED SECTIONS 2.1.1 AND 2.1.1A. Sections 2.1.1 and 2.1.1A of
the Loan Agreement are hereby to read as follows:
"2.1.1 The Revolving Advances. Subject to and upon the terms and
conditions hereof, and in reliance upon the representations and
warranties of the Borrowers set forth herein, each Lender severally
agrees to make its Commitment Percentage of Revolving Advances to
Cymer up to the aggregate amount of $5,000,000 for both Lenders from
time to time until the close of business on the Revolving Maturity
Date, in such sums as Cymer may request, PROVIDED that the aggregate
principal amount of all Revolving Advances and the Dollar Equivalent
of the Optional Currency Advances at any one time outstanding shall
not exceed the Committed Revolving Line minus the Foreign Exchange
Reserve. Subject to the terms and conditions of this Agreement and in
reliance upon the representations and warranties set forth herein,
amounts borrowed pursuant to this Section 2.1.1 may be repaid and
reborrowed at any time during the term of this Agreement. The
minimum amount of a Prime Based Rate Revolving Advance is $25,000.
The minimum amount of a LIBOR Based Rate Revolving Advance is
$500,000, and loan amounts greater than such sum are required to be
in integral multiples of $50,000 in excess thereof.
Cymer promises to pay to Servicing Agent for the account of each
Lender, in lawful money of the United States of America, the aggregate
unpaid principal amount of all Revolving Advances made by Servicing
Agent and Lenders to Borrower. Borrower shall also pay interest on the
aggregate unpaid principal amount of such Advances at the rates and in
accordance with the terms hereof.
The Committed Revolving Line shall terminate on the Revolving
Maturity Date, at which time all Revolving Advances under this Section
2.1.1, all Optional Currency Advances, and other amounts due under this
Agreement (except as otherwise expressly specified herein) shall be
immediately due and payable.
2.1.1.A OPTIONAL CURRENCY ADVANCE.
Substantially concurrently with the execution and delivery of the April
1998 Amendment, an Optional Currency Advance in the Dollar Equivalent
of Ten Million Dollars shall be made to Cymer Japan, PROVIDED, HOWEVER,
that the Dollar Equivalent of the principal amount of such Optional
Currency Advance shall at no time exceed Ten Million Dollars
($10,000,000) AND the aggregate principal amount of all Revolving
Advances, the Dollar Equivalent of the aggregate principal amount of
the Optional Currency Advance at any one time outstanding shall not
exceed the Committed Revolving Line minus the Foreign Exchange Reserve.
The Optional Currency Advance shall be made by each of the Lenders in
an amount up to its respective Commitment Percentage of Revolving
Advances, and BOH shall be the agent for both Lenders in connection
with the making of such Advance. Repayments of the Optional Currency
Advance made in such Optional Currency shall be made only at the branch
of BOH in the country of such Optional Currency."
4. REVISED SECTION 2.1.3(a) Subsection (a) of Section 2.1.3 of the Loan
Agreement is hereby amended to read as follows:
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"(a) Subject to the terms of this Agreement, either Borrower, on a joint
basis, may enter into foreign exchange contracts (the "Exchange
Contracts") not to exceed an aggregate Dollar Equivalent amount of
$100,000,000 (the "Contract Limit"), pursuant to which Lenders shall
sell to or purchase from Borrower foreign currency on a spot or future
basis. A Borrower shall not request any Exchange Contracts at any time
a Default or an Event of Default has occurred and is continuing. All
Exchange Contracts must provide for delivery of settlement on or before
365 days past the then applicable Revolving Maturity Date. The amount
available under the Committed Revolving Line at any time shall be
reduced by the following amounts (the "Foreign Exchange Reserve") on
any given day (the "Determination Date"): on all outstanding Exchange
Contracts on which delivery is to be effected or settlement allowed,
10% of the gross amount of the Exchange Contracts. If on the Revolving
Maturity Date, or on any earlier effective date of termination, there
are any outstanding Exchange Contracts, then on such date Borrower
shall provide cash collateral in an amount equal to the Foreign
Exchange Reserve, to secure all of the Obligations relating to said
Exchange Contracts on the Lenders' standard form cash pledge agreement."
5. REVISED SECTION 2.3.4 Section 2.3.4 of the Loan Agreement is hereby
amended to read as follows:
"2.3.4 COMPUTATION. In the event the Prime Rate is changed
from time to time hereafter, the applicable Prime Based Rate of
interest hereunder shall be increased or decreased effective as of
12:01 a.m. on the day the Prime Rate is changed, by an amount equal to
such change in the Prime Rate. All interest relating to the Prime Rate
chargeable under the Loan Documents shall be computed on the basis of a
three hundred sixty five (365) day year for the actual number of days
elapsed, except where the law or commercial custom in the country of
the Optional Currency requires otherwise. All interest relating to the
LIBOR Based Rate Advances chargeable under the Loan Documents shall be
computed on the basis of a three hundred sixty (360) day year for the
actual number of days elapsed. Interest relating to the Optional
Currency Rate Advance chargeable under the Loan Documents shall be
computed on the basis of a three hundred sixty (360) day year for the
actual number of days elapsed."
6. AMENDMENT TO SECTION 2.3.5 Section 2.3.5 of the Loan Agreement
is hereby amended to REPLACE clause (C) thereof which now reads as:
"(C) by facsimile transmission no later than 12:00 p.m. noon California
time on the Business Day that is two (2) Business Days prior to the
Business Day on which an Optional Currency Rate Advance is to be made"
WITH THE FOLLOWING:
"(C) by facsimile transmission no later than 12:00 p.m. noon California
time on the Business Day that would permit, in the ordinary course of
business, the Servicing Agent to provide notice thereof to the Tokyo
branch of BOH three (3) Business Days prior to the Business Day on
which the Optional Currency Rate Advance is to be made"
7. REVISED SECTION 2.5.4 Section 2.5.4 of the Loan Agreement is
hereby amended to read as follows:
"2.5.4 UNUSED LINE FEE. Borrower shall pay the lenders an unused
line fee, in addition to all interest and other fees payable hereunder.
The amount of such fee
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shall be .125% per annum multiplied by an amount equal to $25,000,000
minus the sum of the average daily balance of (a) the outstanding
Revolving Advances plus (b) the Dollar Equivalent of the Optional
Currency Advances plus (c) the Foreign Exchange Reserve. The unused
line fee shall be computed and paid quarterly, in arrears, on the last
day of March, June, September and December of each year, commencing on
December 31, 1997, with respect to the quarter then ended."
8. REVISED SECTION 2.8(a) Subsection (a) of Section 2.8 of the Loan
Agreement is hereby amended to read as follows:
"(a) If for any reason (including voluntary or mandatory prepayment or
acceleration), Lenders receive all or part of the principal amount of a
LIBOR Based Rate Advance or an Optional Currency Rate Advance prior to
the last day of the applicable Interest Period for such Advance,
Borrower shall within 10 days of demand by Servicing Agent, pay
Servicing Agent the amount (if any) by which (i) the additional
interest which would have been payable on the amount so received had it
not been received until the last day of such Interest Period or term
exceeds (ii) the interest which would have been recoverable by Lender
by placing the amount so received on deposit in the certificate of
deposit markets or the offshore currency interbank markets or United
States Treasury investment products, as the case may be, for a period
starting on the date which it was so received and ending on the last
day of such Interest Period or term at the interest rate determined by
Servicing Agent in its reasonable discretion plus Borrower shall also
pay to Servicing Agent any and all other costs or expenses incurred by
the Servicing Agent as a result of any such conversion. Servicing
Agent's determination as to such amount shall be conclusive absent
manifest error."
9. FINANCIAL COVENANTS. Section 6.8 of the Loan Agreement are hereby
amended, respectively, to read as follows:
"6.8 TANGIBLE NET WORTH. Cymer, Inc. shall maintain, on a consolidated
basis, as of the last day of each calendar quarter, a Tangible Net
Worth of not less than Two Hundred Seventy-Five Million Dollars
($275,000,000) PLUS Fifty Percent (50%) of Borrower's quarterly net
income (after taxes) (with no subtraction for losses) beginning with
the period ending September 30, 1997 LESS the amount of the Borrower's
treasury shares up to $50,000,000, with the understanding that in
connection with the calculation of Tangible Net Worth the assets and
liabilities of Borrower associated with the Foreign Exchange Contracts
shall be included therein on a Net Basis."
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10. SCHEDULE TO LOAN AGREEMENT. The Schedule to the Loan Agreement is
hereby amended to read as follows:
"SCHEDULE
TO
LOAN AND SECURITY AGREEMENT
COMMITMENTS"
COMMITTED REVOLVING LINE:
LENDER COMMITMENT COMMITMENT PERCENTAGE
SILICON VALLEY BANK $12,500,000 50%
BANK OF HAWAII $12,500,000 50%"
11. REPRESENTATIONS TRUE. Borrower represents and warrants to Bank
that all representations and warranties set forth in the Loan Agreement, as
amended hereby, are true and correct.
12. FEE. Borrower shall pay to Bank a fee of $12,500 in connection
herewith, which shall be in addition to interest and to all other amounts
payable under the Loan Agreement.
13. GENERAL PROVISIONS. This Amendment, the Loan Agreement, any
prior written amendments to the Loan Agreement signed by Bank and the
Borrower, and the other written documents and agreements between Bank and the
Borrower set forth in full all of the representations and agreements of the
parties with respect to the subject matter hereof and supersede all prior
discussions, representations, agreements and understandings between the
parties with respect to the subject hereof. Except as herein expressly
amended, all of the terms and provisions of the Loan Agreement, and all other
documents and agreements between Bank
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and the Borrower shall continue in full force and effect and the same are
hereby ratified and confirmed. This Agreement and Consent may be executed in
any number of counterparts, which when taken together shall constitute one
and the same agreement.
CYMER, INC. SILICON VALLEY BANK
BY /s/ William A. Angus, III BY /s/ John Otterson
------------------------- -----------------
SENIOR VICE PRESIDENT VICE PRESIDENT
CYMER JAPAN, INC. BANK OF HAWAII
BY /s/ Robert A. Akins BY /s/ David Ward
------------------- --------------
PRESIDENT OFFICER
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EXHIBIT 10.12
UNCONDITIONAL GUARANTY
(CORPORATE)
For and in consideration of the loan accommodations by SILICON VALLEY
BANK (individually and in its capacity as servicing agent) and BANK OF HAWAII
(collectively, the "Banks") to Cymer Japan, Inc. ("Borrower"), which are made
pursuant to the Loan Agreement of even date herewith between Borrower and
Cymer, Inc., on one side, and the Banks, on the other side (the "Agreement"),
the undersigned guarantor ("Guarantor") hereby unconditionally and
irrevocably guarantees the prompt and complete payment of all amounts that
Borrower owes to Banks and performance by Borrower of the Agreement and any
other agreements between Borrower and Banks, as amended from time to time
(collectively referred to as the "Agreements"), in strict accordance with
their respective terms.
1. If Borrower does not perform its obligations in strict accordance
with the Agreements, Guarantor shall immediately pay all amounts due
thereunder (including, without limitation, all principal, interest, and fees)
and otherwise to proceed to complete the same and satisfy all of Borrower's
obligations under the Agreements.
2. The obligations hereunder are independent of the obligations of
Borrower, and a separate action or actions may be brought and prosecuted
against Guarantor whether action is brought against Borrower or whether
Borrower be joined in any such action or actions. Guarantor waives the
benefit of any statute of limitations affecting its liability hereunder or
the enforcement thereof, to the extent permitted by law. Guarantor's
liability under this Guaranty is not conditioned or contingent upon the
genuineness, validity, regularity or enforceability of the Agreements.
3. Guarantor authorizes Banks, without notice or demand and without
affecting its liability hereunder, from time to time to (a) renew, extend, or
otherwise change the terms of the Agreements or any part thereof; (b) take
and hold security for the payment of this Guaranty or the Agreements, and
exchange, enforce, waive and release any such security; and (c) apply such
security and direct the order or manner of sale thereof as Banks in their
sole discretion may determine.
4. Guarantor waives any right to require Banks to (a) proceed against
Borrower or any other person; (b) proceed against or exhaust any security
held from Borrower; or (c) pursue any other remedy in Banks' power
whatsoever. Banks may, at its election, exercise or decline or fail to
exercise any right or remedy it may have against Borrower or any security
held by Banks, including without limitation the right to foreclose upon any
such security by judicial or nonjudicial sale, without affecting or impairing
in any way the liability of Guarantor hereunder. Guarantor waives any
defense arising by reason of any disability or other defense of Borrower or
by reason of the cessation from any cause whatsoever of the liability of
Borrower, other than the indefeasible prior and complete payment of the
Obligations provided that such payment is not partially or fully disgorged or
otherwise subject to disgorgement for any reason by the Banks in a
bankruptcy, insolvency or any other proceeding. Guarantor waives any setoff,
defense or counterclaim that Borrower may have against Banks. Guarantor
waives any defense arising out of the absence, impairment or loss of any
right of reimbursement or subrogation or any other rights against Borrower.
Until all of the amounts that Borrower owes to Banks have been paid in full,
Guarantor shall have no right of subrogation or reimbursement for claims
arising out of or in connection with this Guaranty, contribution or other
rights against Borrower, and Guarantor waives any right to enforce any remedy
that Banks now have or may hereafter have against Borrower. Guarantor waives
all rights to participate in any security now or hereafter held by Banks.
Guarantor waives all presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, and
notices of acceptance of this Guaranty and of the existence, creation, or
incurring of new or additional indebtedness.
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Guarantor assumes the responsibility for being and keeping itself informed of
the financial condition of Borrower and of all other circumstances bearing
upon the risk of nonpayment of any indebtedness or nonperformance of any
obligation of Borrower, warrants to Banks that it will keep so informed, and
agrees that absent a request for particular information by Guarantor, Banks
shall have no duty to advise Guarantor of information known to Banks
regarding such condition or any such circumstances. Guarantor waives the
benefits of California Civil Code sections 2809, 2810, 2819, 2845, 2847,
2848, 2849, 2850, 2899 and 3433.
5. Guarantor acknowledges that, to the extent Guarantor has or may have
certain rights of subrogation or reimbursement against Borrower for claims
arising out of this Guaranty, those rights may be impaired or destroyed if Banks
elect to proceed against any real property security of Borrower by non-judicial
foreclosure. That impairment or destruction could, under certain judicial cases
and based on equitable principles of estoppel, give rise to a defense by
Guarantor against its obligations under this Guaranty. Guarantor waives that
defense and any others arising from Banks' election to pursue non-judicial
foreclosure. Without limiting the generality of the foregoing, Guarantor waives
any and all benefits and defenses under California Code of Civil Procedure
Sections 580a, 580b, 580d and 726, to the extent they are applicable.
6. If Borrower becomes insolvent or is adjudicated bankrupt or files
a petition for reorganization, arrangement, composition or similar relief
under any present or future provision of the United States Bankruptcy Code,
or if such a petition is filed against Borrower, and in any such proceeding
some or all of any indebtedness or obligations under the Agreements are
terminated or rejected or any obligation of Borrower is modified or
abrogated, or if Borrower's obligations are otherwise avoided for any reason,
Guarantor agrees that Guarantor's liability hereunder shall not thereby be
affected or modified and such liability shall continue in full force and
effect as if no such action or proceeding had occurred. This Guaranty shall
continue to be effective or be reinstated, as the case may be, if any payment
must be returned by Banks upon the insolvency, bankruptcy or reorganization
of Borrower, Guarantor, any other guarantor, or otherwise, as though such
payment had not been made.
7. Any indebtedness of Borrower now or hereafter held by Guarantor is
hereby subordinated to any indebtedness of Borrower to Banks; and such
indebtedness of Borrower to Guarantor shall be collected, enforced and
received by Guarantor as trustee for Banks and be paid over to Banks on
account of the indebtedness of Borrower to Banks but without reducing or
affecting in any manner the liability of Guarantor under the other provisions
of this Guaranty.
8. Guarantor agrees to pay a reasonable attorneys' fee and all other
costs and expenses which may be incurred by Banks in the enforcement of this
Guaranty. No terms or provisions of this Guaranty may be changed, waived,
revoked or amended without Banks' prior written consent. Should any
provision of this Guaranty be determined by a court of competent jurisdiction
to be unenforceable, all of the other provisions shall remain effective.
This Guaranty embodies the entire agreement among the parties hereto with
respect to the matters set forth herein, and supersedes all prior agreements
among the parties with respect to the matters set forth herein. No course of
prior dealing among the parties, no usage of trade, and no parol or extrinsic
evidence of any nature shall be used to supplement, modify or vary any of the
terms hereof. There are no conditions to the full effectiveness of this
Guaranty. Banks may assign this Guaranty without in any way affecting
Guarantor's liability under it. This Guaranty shall inure to the benefit of
Banks and their successors and assigns. This Guaranty is in addition to the
guaranties of any other guarantors and any and all other guaranties of
Borrower's indebtedness or liabilities to Banks.
9. Guarantor represents and warrants to Banks that (i) Guarantor has
taken all necessary and appropriate action to authorize the execution,
delivery and performance of this Guaranty, (ii) execution, delivery and
performance of this Guaranty do not conflict with or result
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in a breach of or constitute a default under Guarantor's Articles of
Incorporation or Bylaws or other organizational documents or agreements to
which it is party or by which it is bound, and (iii) this Guaranty
constitutes a valid and binding obligation, enforceable against Guarantor in
accordance with its terms.
10. Guarantor covenants and agrees that Guarantor shall do all of the
following:
10.1 Guarantor shall maintain its corporate existence, remain in
good standing in Delaware, and continue to qualify in each jurisdiction in
which the failure to so qualify could have a material adverse effect on the
financial condition, operations or business of Guarantor. Guarantor shall
maintain in force all licenses, approvals and agreements, the loss of which
could have a material adverse effect on its financial condition, operations
or business.
10.2 Guarantor shall comply with all statutes, laws, ordinances,
directives, orders, and government rules and regulations to which it is
subject if non-compliance with such laws could adversely affect the financial
condition, operations or business of Guarantor.
10.3 At any time and from time to time Guarantor shall execute and
deliver such further instruments and take such further action as may
reasonably be requested by Bank to effect the purposes of this Agreement.
11. This Guaranty shall be governed by the laws of the State of
California, without regard to conflicts of laws principles. GUARANTOR WAIVES
ANY RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED THEREIN,
INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER
COMMON LAW OR STATUTORY CLAIMS. Guarantor submits to the exclusive
jurisdiction of the state and federal courts located in San Diego County,
California.
IN WITNESS WHEREOF, the undersigned Guarantor has executed this
Guaranty as of this 8th of December, 1997.
Cymer, Inc.
By: /s/ William A. Angus, III
--------------------------------------
Title: Senior Vice President, Chief Financial
Officer
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EXHIBIT 10.16
(CEO/CFO)
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement (the "Agreement") is made and entered into effective
as of November 26, 1997, by and between Robert P. Akins (the "Employee") and
Cymer, Inc., a Nevada corporation (the "Company").
R E C I T A L S
A. The Company may from time to time need to address the possibility of an
acquisition transaction or change of control event. The Board of Directors of
the Company (the "Board") recognizes that such events can be a distraction to
the Employee and can cause the Employee to consider alternative employment
opportunities. The Board has determined that it is in the best interests of the
Company and its stockholders to assure that the Company will have the continued
dedication and objectivity of the Employee, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company,
although no such Change is now contemplated.
B. The Board believes that it is in the best interests of the Company and its
stockholders to provide the Employee with an incentive to continue his
employment and to motivate the Employee to maximize the value of the Company
upon a Change of Control for the benefit of its stockholders.
C. The Board believes that it is imperative to provide the Employee with
certain benefits upon a Change of Control and, under certain circumstances, upon
termination of the Employee's employment in connection with a Change of Control,
which benefits are intended to provide the Employee with financial security and
provide sufficient incentive and encouragement to the Employee to remain with
the Company notwithstanding the possibility of a Change of Control.
D. To accomplish the foregoing objectives, the Board has directed the Company,
upon execution of this Agreement by the Employee, to agree to the terms provided
herein.
E. Certain capitalized terms used in this Agreement are defined in Section 7
below.
A G R E E M E N T
In consideration of the mutual covenants herein contained, and in consideration
of the continuing employment of the Employee by the Company, the parties agree
as follows:
1. DUTIES AND SCOPE OF EMPLOYMENT. The Company shall employ the Employee in
the position of Chairman of the Board, Chief Executive Officer, and President,
as such position has been defined in terms of responsibilities and compensation
as of the effective date of this Agreement; provided, however, that the Board
shall have the right, at any time prior to the occurrence of a Change of
Control, to revise such responsibilities and compensation as the Board in its
discretion may deem necessary or appropriate. The Employee shall comply with
and be bound by the Company's operating policies, procedures and practices from
time to time in effect during his employment. During the term of the Employee's
employment with the Company, the Employee shall continue to devote his full
time, skill and attention to his duties and responsibilities, and shall perform
them faithfully, diligently and competently, and the Employee shall use his best
efforts to further the business of the Company and its affiliated entities.
2. BASE COMPENSATION. The Company shall pay the Employee as compensation for
his services a base salary at the annualized rate of $300,000.00. Such salary
shall be paid periodically in accordance with normal Company payroll practices.
The Board or the Compensation Committee of the Board shall review the base
salary of the
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Employee according to normal Company practice, but no less frequently than
annually, and may in its discretion increase but not decrease the base salary
below the amount specified in this agreement.
3. ANNUAL INCENTIVE. Beginning with the Company's current fiscal year and for
each fiscal year thereafter during the term of this Agreement, the Employee
shall be eligible to receive an annual bonus under the Company's annual
incentive plan (the "Annual Incentive") based upon performance targets approved
by the Compensation Committee of the Board (the "Target Incentive"). The Annual
Incentive payable hereunder shall be payable in accordance with the Company's
normal practices and policies.
4. EMPLOYEE BENEFITS. The Employee shall be eligible to participate in the
employee benefit plans and executive compensation programs maintained by the
Company applicable to other key executives of the Company, including (without
limitation) retirement plans, savings or profit-sharing plans, stock option,
incentive or other bonus plans, life, disability, health, accident and other
insurance programs, paid vacations, and similar plans or programs, subject in
each case to the generally applicable terms and conditions of the applicable
plan or program in question and to the sole determination of the Board or any
committee administering such plan or program.
5. EMPLOYMENT RELATIONSHIP. The Company and the Employee acknowledge that the
Employee's employment is and shall continue to be at-will, as defined under
applicable law. If the Employee's employment terminates for any reason, the
Employee shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided by this Agreement, or as may otherwise be
available in accordance with the Company's established employee plans and
policies at the time of termination.
6. TERMINATION BENEFITS.
(a) Subject to Sections 8 and 9 below, in the event the Employee's
employment terminates as a result of an Involuntary Termination other
than for Cause upon or within eighteen (18) months after a Change of
Control, then the Employee shall be entitled to receive severance and
other benefits as follows:
(i) PAY CONTINUATION. The Employee shall be entitled to monthly
payments equal to the Employee's monthly Base Compensation as in
effect immediately prior to the Change of Control plus one-twelfth
(1/12) of the average of the annual bonus amount paid to the
Employee with respect to the three previous calendar years. Such
monthly amounts shall be paid according to the normal payroll
practice of the Company for 18 months following the date of
termination (the "Termination Period").
(ii) ANNUAL INCENTIVE. The Employee shall be entitled to receive a
percentage of the Employee's Target Incentive for the calendar year
in which such termination occurs. Such percentage shall equal a
fraction, the numerator of which shall be the number of days in
such calendar year up to and including the date of such termination
and the denominator of which shall be the number of days in such
calendar year. Such amount shall be payable according to the
normal practice of the Company with respect to the payment of
bonuses.
(iii) OPTIONS. The unvested portion of any stock option(s)
held by the Employee under the Company's stock option plans shall
vest and become exercisable in full upon the date of such
termination.
(iv) MEDICAL BENEFITS. The Company shall reimburse the
Employee for the cost of the Employee's group health, vision and
dental plan coverage in effect until the end of the Termination
Period. The Employee may use this payment, as well as any other
payment made under this Section 6, for such continuation coverage
or for any other purpose. To the extent the Employee pays the cost
of such coverage, and the cost of such coverage is not deductible
as a medical expense by the Employee, the Company shall "gross-up"
the amount of such reimbursement for all taxes payable by the
Employee on the amount of such reimbursement and the amount of such
gross-up.
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(b) In the event the Employee voluntarily resigns his
employment with the Company within the 30-day period beginning one
year after a Change of Control, the Employee shall receive the
severance and other benefits set forth in Sections 6(a)(i)-(iv)
above.
7. DEFINITION OF TERMS. The following terms referred to in this Agreement
shall have the following meanings:
(a) CAUSE. "Cause" shall mean (i) any act of personal dishonesty taken
by the Employee in connection with his responsibilities as an employee
and intended to result in substantial personal enrichment of the
Employee, (ii) conviction of a felony that is injurious to the Company,
(iii) a willful act by the Employee which constitutes gross misconduct
and which is injurious to the Company, and (iv) continued violations by
the Employee of the Employee's obligations under Section 1 of this
Agreement that are demonstrably willful and deliberate on the
Employee's part after there has been delivered to the Employee a
written demand for performance from the Company which describes the
basis for the Company's belief that the Employee has not substantially
performed his duties.
(b) CHANGE OF CONTROL. "Change of Control" shall mean the occurrence of
any of the following events:
(i) The acquisition by any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) (other than the
Company or a person that directly or indirectly controls, is
controlled by, or is under common control with, the Company) of the
"beneficial ownership" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the total voting power represented
by the Company's then outstanding voting securities; or
(ii) A change in the composition of the Board of Directors of the
Company occurring within a two-year period, as a result of which
fewer than a majority of the directors are Incumbent Directors.
"Incumbent Directors" shall mean directors who either (A) are
directors of the Company as of the date hereof, or (B) are elected,
or nominated for election, to the Board of Directors of the Company
with the affirmative votes of at least a majority of the Incumbent
Directors at the time of such election or nomination (but shall not
include an individual not otherwise an Incumbent Director whose
election or nomination is in connection with an actual or
threatened proxy contest relating to the election of directors to
the Company); or
(iii) A merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) at least fifty percent (50%) of the total
voting power represented by the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or the approval by the stockholders of the Company
of a plan of complete liquidation of the Company or of an agreement
for the sale or disposition by the Company of all or substantially
all the Company's assets.
(c) DISABILITY. "Disability" shall mean that the Employee has been
unable to substantially perform his duties under this Agreement as the
result of his incapacity due to physical or mental illness, and such
inability, at least 26 weeks after its commencement, is determined to
be total and permanent by a physician selected by the Company or its
insurers and acceptable to the Employee or the Employee's legal
representative (such agreement as to acceptability not to be
unreasonably withheld).
(d) EXCHANGE ACT. "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
(e) INVOLUNTARY TERMINATION. "Involuntary Termination" shall mean (i)
without the Employee's express written consent, the significant
reduction of the Employee's duties or responsibilities relative to the
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Employee's duties or responsibilities in effect immediately prior to
such reduction; provided, however, that a reduction in duties or
responsibilities solely by virtue of the Company being acquired and
made part of a larger entity (as, for example, when the Chief Financial
Officer of Company remains as such following a Change of Control and is
not made the Chief Financial Officer of the acquiring corporation)
shall not constitute an "Involuntary Termination"; (ii) without the
Employee's express written consent, a substantial reduction, without
good business reasons, of the facilities and perquisites (including
office space and location) available to the Employee immediately prior
to such reduction; (iii) without the Employee's express written
consent, a material reduction by the Company in the Base Compensation
or Target Incentive of the Employee as in effect immediately prior to
such reduction, or the ineligibility of the Employee to continue to
participate in any long-term incentive plan of the Company; (iv) a
material reduction by the Company in the kind or level of employee
benefits to which the Employee is entitled immediately prior to such
reduction with the result that the Employee's overall benefits package
is significantly reduced; (v) the relocation of the Employee to a
facility or a location more than 50 miles from the Employee's then
present location, without the Employee's express written consent;
(vi) any purported termination of the Employee by the Company which is
not effected for death or Disability or for Cause, or any purported
termination for which the grounds relied upon are not valid; or
(vii) the failure of the Company to obtain the assumption of this
agreement by any successors contemplated in Section 10 below.
8. LIMITATION ON PAYMENTS.
(a) In the event that the severance and other benefits provided for in
this Agreement or otherwise payable to the Employee (i) constitute
"parachute payments" within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code") and (ii) but for this
Section 8 would be subject to the excise tax imposed by Section 4999 of
the Code, then the Employee's severance benefits under Section 6 shall
be payable either (i) in full, or (ii) as to such lesser amount which
would result in no portion of such severance benefits being subject to
excise tax under Section 4999 of the Code, whichever of the foregoing
amounts, taking into account the applicable federal, state and local
income taxes and the excise tax imposed by Section 4999, results in the
receipt by the Employee on an after-tax basis, of the greatest amount
of severance benefits under this Agreement, notwithstanding that all or
some portion of such severance benefits may be taxable under Section
4999 of the Code.
(b) If a reduction in the payments and benefits that would otherwise
be paid or provided to the Employee under the terms of this Agreement
is necessary to comply with the provisions of Section 8(a), the
Employee shall be entitled to select which payments or benefits will be
reduced and the manner and method of any such reduction of such
payments or benefits (including but not limited to the number of
options that would vest under Section 6(b) subject to reasonable
limitations (including, for example, express provisions under the
Company's benefit plans) (so long as the requirements of Section 8(a)
are met). Within thirty (30) days after the amount of any required
reduction in payments and benefits is finally determined in accordance
with the provisions of Section 8(c), the Employee shall notify the
Company in writing regarding which payments or benefits are to be
reduced. If no notification is given by the Employee, the Company will
determine which amounts to reduce. If, as a result of any reduction
required by Section 8(a), amounts previously paid to the Employee
exceed the amount to which the Employee is entitled, the Employee will
promptly return the excess amount to the Company.
(c ) Unless the Company and the Employee otherwise agree in writing,
any determination required under this Section 8 shall be made in
writing by the Company's independent public accountants (the
"Accountants"), whose determination shall be conclusive and binding
upon the Employee and the Company for all purposes. For purposes of
making the calculations required by this Section 8, the Accountants may
make reasonable assumptions and approximations concerning applicable
taxes and may rely on reasonable, good faith interpretations concerning
the application of Sections 280G and 4999 of the Code. The Company and
the Employee shall furnish to the Accountants such information and
documents as the Accountants may reasonably request in order to make a
determination under this Section. The Company shall bear all costs the
Accountants may reasonably incur in connection with any calculations
contemplated by this Section 8.
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9. CERTAIN BUSINESS COMBINATIONS. In the event it is determined by the
Board, upon receipt of a written opinion of the Company's independent public
accountants, that the enforcement of any Section or subsection of this
Agreement, including, but not limited to, Section 6(b) hereof, which allows
for the acceleration of vesting of options to purchase shares of the
Company's common stock upon a termination in connection with a Change of
Control, would preclude accounting for any proposed business combination of
the Company involving a Change of Control as a pooling of interests, and the
Board otherwise desires to approve such a proposed business transaction which
requires as a condition to the closing of such transaction that it be
accounted for as a pooling of interests, then any such Section of this
Agreement shall be null and void, but only if the absence of enforcement of
such Section would preserve the pooling treatment. For purposes of this
Section 9, the Board's determination shall require the unanimous approval of
the disinterested Board members.
10. SUCCESSORS.
(a) COMPANY'S SUCCESSORS. Any successor to the Company (whether direct
or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's
business and assets shall assume the obligations under this Agreement
and agree expressly to perform the obligations under this Agreement in
the same manner and to the same extent as the Company would be required
to perform such obligations in the absence of a succession. For all
purposes under this Agreement, the term "Company" shall include any
successor to the Company's business and assets which executes and
delivers the assumption agreement described in this Section 10(a) or
which becomes bound by the terms of this Agreement by operation of law.
(b) EMPLOYEE'S SUCCESSORS. The terms of this Agreement and all rights
of the Employee hereunder shall inure to the benefit of, and be
enforceable by, the Employee's personal or legal representatives,
executors, administrators, successors, heirs, devisees and legatees.
11. NOTICE. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. In the case of the Employee, mailed
notices shall be addressed to him at the home address which he most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall
be directed to the attention of its Secretary.
12. MISCELLANEOUS PROVISIONS.
(a) WAIVER. No provision of this Agreement shall be modified, waived
or discharged unless the modification, waiver or discharge is agreed to
in writing and signed by the Employee and by an authorized officer of
the Company (other than the Employee). No waiver by either party of
any breach of, or of compliance with, any condition or provision of
this Agreement by the other party shall be considered a waiver of any
other condition or provision or of the same condition or provision at
another time.
(b) WHOLE AGREEMENT. No agreements, representations or understandings
(whether oral or written and whether express or implied) which are not
expressly set forth in this Agreement have been made or entered into by
either party with respect to the subject matter hereof.
(c) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the
State of California.
(d) SEVERABILITY. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in
full force and effect.
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(e) ARBITRATION. Any dispute or controversy arising out of,
relating to or in connection with this Agreement shall be settled
exclusively by binding arbitration in San Diego, California, in
accordance with the National Rules for the Resolution of Employment
Disputes of the American Arbitration Association then in effect.
Judgment may be entered on the arbitrator's award in any court having
jurisdiction. The Company and the Employee shall each pay one-half
of the costs and expenses of such arbitration, and each shall
separately pay its counsel fees and expenses. Punitive damages shall
not be awarded.
(f) NO ASSIGNMENT OF BENEFITS. The rights of any person to payments
or benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by
operation of law, including (without limitation) bankruptcy,
garnishment, attachment or other creditor's process, and any action in
violation of this Section 12(g) shall be void.
(g) ASSIGNMENT BY COMPANY. The Company may assign its rights under
this Agreement to an affiliate, and an affiliate may assign its rights
under this Agreement to another affiliate of the Company or to the
Company; provided, however, that no assignment shall be made if the net
worth of the assignee is less than the net worth of the Company at the
time of assignment. In the case of any such assignment, the term
"Company" when used in a section of this Agreement shall mean the
corporation that actually employs the Employee.
(h) COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together
will constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of the Company by its duly authorized officer, as of the day and year first
above written.
COMPANY: CYMER, INC.
By: William A. Angus, III
Title: Senior Vice President and Chief Financial Officer
/s/ William A. Angus, III
-----------------------------------------------------------
EMPLOYEE: /s/ Robert P. Akins
-----------------------------------------------------------
Robert P. Akins
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EXHIBIT 10.17
(CEO/CFO)
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement (the "Agreement") is made and entered into effective
as of November 26, 1997, by and between William A. Angus, III (the "Employee")
and Cymer, Inc., a Nevada corporation (the "Company").
R E C I T A L S
A. The Company may from time to time need to address the possibility of an
acquisition transaction or change of control event. The Board of Directors of
the Company (the "Board") recognizes that such events can be a distraction to
the Employee and can cause the Employee to consider alternative employment
opportunities. The Board has determined that it is in the best interests of the
Company and its stockholders to assure that the Company will have the continued
dedication and objectivity of the Employee, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company,
although no such Change is now contemplated.
B. The Board believes that it is in the best interests of the Company and its
stockholders to provide the Employee with an incentive to continue his
employment and to motivate the Employee to maximize the value of the Company
upon a Change of Control for the benefit of its stockholders.
C. The Board believes that it is imperative to provide the Employee with
certain benefits upon a Change of Control and, under certain circumstances, upon
termination of the Employee's employment in connection with a Change of Control,
which benefits are intended to provide the Employee with financial security and
provide sufficient incentive and encouragement to the Employee to remain with
the Company notwithstanding the possibility of a Change of Control.
D. To accomplish the foregoing objectives, the Board has directed the Company,
upon execution of this Agreement by the Employee, to agree to the terms provided
herein.
E. Certain capitalized terms used in this Agreement are defined in Section 7
below.
A G R E E M E N T
In consideration of the mutual covenants herein contained, and in consideration
of the continuing employment of the Employee by the Company, the parties agree
as follows:
1. DUTIES AND SCOPE OF EMPLOYMENT. The Company shall employ the Employee in
the position of Sr. Vice President and Chief Financial Officer as such position
has been defined in terms of responsibilities and compensation as of the
effective date of this Agreement; provided, however, that the Board shall have
the right, at any time prior to the occurrence of a Change of Control, to revise
such responsibilities and compensation as the Board in its discretion may deem
necessary or appropriate. The Employee shall comply with and be bound by the
Company's operating policies, procedures and practices from time to time in
effect during his employment. During the term of the Employee's employment with
the Company, the Employee shall continue to devote his full time, skill and
attention to his duties and responsibilities, and shall perform them faithfully,
diligently and competently, and the Employee shall use his best efforts to
further the business of the Company and its affiliated entities.
2. BASE COMPENSATION. The Company shall pay the Employee as compensation for
his services a base salary at the annualized rate of $200,000.00. Such salary
shall be paid periodically in accordance with normal Company payroll practices.
The Board or the Compensation Committee of the Board shall review the base
salary of the
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Employee according to normal Company practice, but no less frequently than
annually, and may in its discretion increase but not decrease the base salary
below the amount specified in this agreement.
3. ANNUAL INCENTIVE. Beginning with the Company's current fiscal year and for
each fiscal year thereafter during the term of this Agreement, the Employee
shall be eligible to receive an annual bonus under the Company's annual
incentive plan (the "Annual Incentive") based upon performance targets approved
by the Compensation Committee of the Board (the "Target Incentive"). The Annual
Incentive payable hereunder shall be payable in accordance with the Company's
normal practices and policies.
4. EMPLOYEE BENEFITS. The Employee shall be eligible to participate in the
employee benefit plans and executive compensation programs maintained by the
Company applicable to other key executives of the Company, including (without
limitation) retirement plans, savings or profit-sharing plans, stock option,
incentive or other bonus plans, life, disability, health, accident and other
insurance programs, paid vacations, and similar plans or programs, subject in
each case to the generally applicable terms and conditions of the applicable
plan or program in question and to the sole determination of the Board or any
committee administering such plan or program.
5. EMPLOYMENT RELATIONSHIP. The Company and the Employee acknowledge that the
Employee's employment is and shall continue to be at-will, as defined under
applicable law. If the Employee's employment terminates for any reason, the
Employee shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided by this Agreement, or as may otherwise be
available in accordance with the Company's established employee plans and
policies at the time of termination.
6. TERMINATION BENEFITS.
(a) Subject to Sections 8 and 9 below, in the event the Employee's
employment terminates as a result of an Involuntary Termination other than
for Cause upon or within eighteen (18) months after a Change of Control,
then the Employee shall be entitled to receive severance and other benefits
as follows:
(i) PAY CONTINUATION. The Employee shall be entitled to monthly
payments equal to the Employee's monthly Base Compensation as in
effect immediately prior to the Change of Control plus one-twelfth
(1/12) of the average of the annual bonus amount paid to the Employee
with respect to the three previous calendar years. Such monthly
amounts shall be paid according to the normal payroll practice of the
Company for 12 months following the date of termination (the
"Termination Period").
(ii) ANNUAL INCENTIVE. The Employee shall be entitled to receive a
percentage of the Employee's Target Incentive for the calendar year in
which such termination occurs. Such percentage shall equal a fraction,
the numerator of which shall be the number of days in such calendar
year up to and including the date of such termination and the
denominator of which shall be the number of days in such calendar
year. Such amount shall be payable according to the normal practice
of the Company with respect to the payment of bonuses.
(iii) OPTIONS. The unvested portion of any stock option(s) held by
the Employee under the Company's stock option plans shall vest and
become exercisable in full upon the date of such termination.
(iv) MEDICAL BENEFITS. The Company shall reimburse the Employee for
the cost of the Employee's group health, vision and dental plan
coverage in effect until the end of the Termination Period.
The Employee may use this payment, as well as any other payment
made under this Section 6, for such continuation coverage or
for any other purpose. To the extent the Employee pays the cost
of such coverage, and the cost of such coverage is not
deductible as a medical expense by the Employee, the Company
shall "gross-up" the amount of such reimbursement for all taxes
payable by the Employee on the amount of such reimbursement and
the amount of such gross-up.
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(b) In the event the Employee voluntarily resigns his employment with the
Company within the 30-day period beginning one year after a Change of
Control, the Employee shall receive the severance and other benefits
set forth in Sections 6(a)(i)-(iv) above.
7. DEFINITION OF TERMS. The following terms referred to in this Agreement
shall have the following meanings:
(a) CAUSE. "Cause" shall mean (i) any act of personal dishonesty taken by
the Employee in connection with his responsibilities as an employee and
intended to result in substantial personal enrichment of the Employee, (ii)
conviction of a felony that is injurious to the Company, (iii) a willful
act by the Employee which constitutes gross misconduct and which is
injurious to the Company, and (iv) continued violations by the Employee of
the Employee's obligations under Section 1 of this Agreement that are
demonstrably willful and deliberate on the Employee's part after there has
been delivered to the Employee a written demand for performance from the
Company which describes the basis for the Company's belief that the
Employee has not substantially performed his duties.
(b) CHANGE OF CONTROL. "Change of Control" shall mean the occurrence of
any of the following events:
(i) The acquisition by any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) (other than the Company
or a person that directly or indirectly controls, is controlled by, or
is under common control with, the Company) of the "beneficial
ownership" (as defined in Rule 13d-3 under said Act), directly or
indirectly, of securities of the Company representing fifty percent
(50%) or more of the total voting power represented by the Company's
then outstanding voting securities; or
(ii) A change in the composition of the Board of Directors of the
Company occurring within a two-year period, as a result of which fewer
than a majority of the directors are Incumbent Directors. "Incumbent
Directors" shall mean directors who either (A) are directors of the
Company as of the date hereof, or (B) are elected, or nominated for
election, to the Board of Directors of the Company with the
affirmative votes of at least a majority of the Incumbent Directors at
the time of such election or nomination (but shall not include an
individual not otherwise an Incumbent Director whose election or
nomination is in connection with an actual or threatened proxy contest
relating to the election of directors to the Company); or
(iii) A merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result
in the voting securities of the Company outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity) at
least fifty percent (50%) of the total voting power represented by the
voting securities of the Company or such surviving entity outstanding
immediately after such merger or consolidation, or the approval by the
stockholders of the Company of a plan of complete liquidation of the
Company or of an agreement for the sale or disposition by the Company
of all or substantially all the Company's assets.
(c) DISABILITY. "Disability" shall mean that the Employee has been unable
to substantially perform his duties under this Agreement as the result of
his incapacity due to physical or mental illness, and such inability, at
least 26 weeks after its commencement, is determined to be total and
permanent by a physician selected by the Company or its insurers and
acceptable to the Employee or the Employee's legal representative (such
agreement as to acceptability not to be unreasonably withheld).
(d) EXCHANGE ACT. "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended.
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(e) INVOLUNTARY TERMINATION. "Involuntary Termination" shall mean (i)
without the Employee's express written consent, the significant reduction
of the Employee's duties or responsibilities relative to the Employee's
duties or responsibilities in effect immediately prior to such reduction;
provided, however, that a reduction in duties or responsibilities solely by
virtue of the Company being acquired and made part of a larger entity (as,
for example, when the Chief Financial Officer of Company remains as such
following a Change of Control and is not made the Chief Financial Officer
of the acquiring corporation) shall not constitute an "Involuntary
Termination"; (ii) without the Employee's express written consent, a
substantial reduction, without good business reasons, of the facilities and
perquisites (including office space and location) available to the Employee
immediately prior to such reduction; (iii) without the Employee's express
written consent, a material reduction by the Company in the Base
Compensation or Target Incentive of the Employee as in effect immediately
prior to such reduction, or the ineligibility of the Employee to continue
to participate in any long-term incentive plan of the Company; (iv) a
material reduction by the Company in the kind or level of employee benefits
to which the Employee is entitled immediately prior to such reduction with
the result that the Employee's overall benefits package is significantly
reduced; (v) the relocation of the Employee to a facility or a location
more than 50 miles from the Employee's then present location, without the
Employee's express written consent; (vi) any purported termination of the
Employee by the Company which is not effected for death or Disability or
for Cause, or any purported termination for which the grounds relied upon
are not valid; or (vii) the failure of the Company to obtain the assumption
of this agreement by any successors contemplated in Section 10 below.
8. LIMITATION ON PAYMENTS.
(a) In the event that the severance and other benefits provided for in
this Agreement or otherwise payable to the Employee (i) constitute
"parachute payments" within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code") and (ii) but for this Section
8 would be subject to the excise tax imposed by Section 4999 of the Code,
then the Employee's severance benefits under Section 6 shall be payable
either (i) in full, or (ii) as to such lesser amount which would result in
no portion of such severance benefits being subject to excise tax under
Section 4999 of the Code, whichever of the foregoing amounts, taking into
account the applicable federal, state and local income taxes and the excise
tax imposed by Section 4999, results in the receipt by the Employee on an
after-tax basis, of the greatest amount of severance benefits under this
Agreement, notwithstanding that all or some portion of such severance
benefits may be taxable under Section 4999 of the Code.
(b) If a reduction in the payments and benefits that would otherwise be
paid or provided to the Employee under the terms of this Agreement is
necessary to comply with the provisions of Section 8(a), the Employee shall
be entitled to select which payments or benefits will be reduced and the
manner and method of any such reduction of such payments or benefits
(including but not limited to the number of options that would vest under
Section 6(b) subject to reasonable limitations (including, for example,
express provisions under the Company's benefit plans) (so long as the
requirements of Section 8(a) are met). Within thirty (30) days after the
amount of any required reduction in payments and benefits is finally
determined in accordance with the provisions of Section 8(c), the Employee
shall notify the Company in writing regarding which payments or benefits
are to be reduced. If no notification is given by the Employee, the
Company will determine which amounts to reduce. If, as a result of any
reduction required by Section 8(a), amounts previously paid to the Employee
exceed the amount to which the Employee is entitled, the Employee will
promptly return the excess amount to the Company.
(c ) Unless the Company and the Employee otherwise agree in writing, any
determination required under this Section 8 shall be made in writing by the
Company's independent public accountants (the "Accountants"), whose
determination shall be conclusive and binding upon the Employee and the
Company for all purposes. For purposes of making the calculations required
by this Section 8, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good
faith interpretations concerning the application of Sections 280G and 4999
of the Code. The Company and the Employee shall furnish to the Accountants
such information and documents
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as the Accountants may reasonably request in order to make a determination
under this Section. The Company shall bear all costs the Accountants may
reasonably incur in connection with any calculations contemplated by this
Section 8.
9. CERTAIN BUSINESS COMBINATIONS. In the event it is determined by the Board,
upon receipt of a written opinion of the Company's independent public
accountants, that the enforcement of any Section or subsection of this
Agreement, including, but not limited to, Section 6(b) hereof, which allows for
the acceleration of vesting of options to purchase shares of the Company's
common stock upon a termination in connection with a Change of Control, would
preclude accounting for any proposed business combination of the Company
involving a Change of Control as a pooling of interests, and the Board otherwise
desires to approve such a proposed business transaction which requires as a
condition to the closing of such transaction that it be accounted for as a
pooling of interests, then any such Section of this Agreement shall be null and
void, but only if the absence of enforcement of such Section would preserve the
pooling treatment. For purposes of this Section 9, the Board's determination
shall require the unanimous approval of the disinterested Board members.
10. SUCCESSORS.
(a) COMPANY'S SUCCESSORS. Any successor to the Company (whether direct or
indirect and whether by purchase, lease, merger, consolidation, liquidation
or otherwise) to all or substantially all of the Company's business and
assets shall assume the obligations under this Agreement and agree
expressly to perform the obligations under this Agreement in the same
manner and to the same extent as the Company would be required to perform
such obligations in the absence of a succession. For all purposes under
this Agreement, the term "Company" shall include any successor to the
Company's business and assets which executes and delivers the assumption
agreement described in this Section 10(a) or which becomes bound by the
terms of this Agreement by operation of law.
(b) EMPLOYEE'S SUCCESSORS. The terms of this Agreement and all rights of
the Employee hereunder shall inure to the benefit of, and be enforceable
by, the Employee's personal or legal representatives, executors,
administrators, successors, heirs, devisees and legatees.
11. NOTICE. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. In the case of the Employee, mailed
notices shall be addressed to him at the home address which he most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall
be directed to the attention of its Secretary.
12. MISCELLANEOUS PROVISIONS.
(a) WAIVER. No provision of this Agreement shall be modified, waived or
discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Employee and by an authorized officer of the
Company (other than the Employee). No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by
the other party shall be considered a waiver of any other condition or
provision or of the same condition or provision at another time.
(b) WHOLE AGREEMENT. No agreements, representations or understandings
(whether oral or written and whether express or implied) which are not
expressly set forth in this Agreement have been made or entered into by
either party with respect to the subject matter hereof.
(c ) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California.
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(d) SEVERABILITy. The invalidity or unenforceability of any provision or
provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full
force and effect.
(e) ARBITRATION. Any dispute or controversy arising out of, relating to
or in connection with this Agreement shall be settled exclusively by
binding arbitration in San Diego, California, in accordance with the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. The Company and the
Employee shall each pay one-half of the costs and expenses of such
arbitration, and each shall separately pay its counsel fees and expenses.
Punitive damages shall not be awarded.
(f) NO ASSIGNMENT OF BENEFITS. The rights of any person to payments or
benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation
of law, including (without limitation) bankruptcy, garnishment, attachment
or other creditor's process, and any action in violation of this Section
12(g) shall be void.
(g) ASSIGNMENT BY COMPANY. The Company may assign its rights under this
Agreement to an affiliate, and an affiliate may assign its rights under
this Agreement to another affiliate of the Company or to the Company;
provided, however, that no assignment shall be made if the net worth of the
assignee is less than the net worth of the Company at the time of
assignment. In the case of any such assignment, the term "Company" when
used in a section of this Agreement shall mean the corporation that
actually employs the Employee.
(h) COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of the Company by its duly authorized officer, as of the day and year first
above written.
COMPANY: CYMER, INC.
By: Robert P. Akins
Title: Chairman of the Board, Chief Executive Officer and
President
/s/ Robert P. Akins
---------------------------------------------------------------
EMPLOYEE: /s/ William A. Angus, III
---------------------------------------------------------------
William A. Angus, III
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EXHIBIT 10.18
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement (the "Agreement") is made and entered into effective
as of November 26, 1997, by and between Pascal Didier (the "Employee") and
Cymer, Inc., a Nevada corporation (the "Company").
R E C I T A L S
A. The Company may from time to time need to address the possibility of an
acquisition transaction or change of control event. The Board of Directors of
the Company (the "Board") recognizes that such events can be a distraction to
the Employee and can cause the Employee to consider alternative employment
opportunities. The Board has determined that it is in the best interests of the
Company and its stockholders to assure that the Company will have the continued
dedication and objectivity of the Employee, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company,
although no such Change is now contemplated.
B. The Board believes that it is in the best interests of the Company and its
stockholders to provide the Employee with an incentive to continue his
employment and to motivate the Employee to maximize the value of the Company
upon a Change of Control for the benefit of its stockholders.
C. The Board believes that it is imperative to provide the Employee with
certain benefits upon a Change of Control and, under certain circumstances, upon
termination of the Employee's employment in connection with a Change of Control,
which benefits are intended to provide the Employee with financial security and
provide sufficient incentive and encouragement to the Employee to remain with
the Company notwithstanding the possibility of a Change of Control.
D. To accomplish the foregoing objectives, the Board has directed the Company,
upon execution of this Agreement by the Employee, to agree to the terms provided
herein.
E. Certain capitalized terms used in this Agreement are defined in Section 7
below.
A G R E E M E N T
In consideration of the mutual covenants herein contained, and in consideration
of the continuing employment of the Employee by the Company, the parties agree
as follows:
1. DUTIES AND SCOPE OF EMPLOYMENT. The Company shall employ the Employee in
the position of Senior Vice President Customer Operations, as such position has
been defined in terms of responsibilities and compensation as of the effective
date of this Agreement; provided, however, that the Board shall have the right,
at any time prior to the occurrence of a Change of Control, to revise such
responsibilities and compensation as the Board in its discretion may deem
necessary or appropriate. The Employee shall comply with and be bound by the
Company's operating policies, procedures and practices from time to time in
effect during his employment. During the term of the Employee's employment with
the Company, the Employee shall continue to devote his full time, skill and
attention to his duties and responsibilities, and shall perform them faithfully,
diligently and competently, and the Employee shall use his best efforts to
further the business of the Company and its affiliated entities.
2. BASE COMPENSATION. The Company shall pay the Employee as compensation for
his services a base salary at the annualized rate of $200,000.00. Such salary
shall be paid periodically in accordance with normal Company payroll practices.
The Board or the Compensation Committee of the Board shall review the base
salary of the Employee according to normal Company practice, but no less
frequently than annually, and may in its discretion increase but not decrease
the base salary. The Board or the Compensation Committee of the Board shall
review the
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base salary of the Employee according to normal Company practice, but no less
frequently than annually, and may in its discretion increase but not decrease
the base salary below the amount specified in this agreement.
ANNUAL INCENTIVE. Beginning with the Company's current fiscal year and for
each fiscal year thereafter during the term of this Agreement, the Employee
shall be eligible to receive an annual bonus under the Company's annual
incentive plan (the "Annual Incentive") based upon performance targets approved
by the Compensation Committee of the Board (the "Target Incentive"). The Annual
Incentive payable hereunder shall be payable in accordance with the Company's
normal practices and policies.
4. EMPLOYEE BENEFITS. The Employee shall be eligible to participate in the
employee benefit plans and executive compensation programs maintained by the
Company applicable to other key executives of the Company, including (without
limitation) retirement plans, savings or profit-sharing plans, stock option,
incentive or other bonus plans, life, disability, health, accident and other
insurance programs, paid vacations, and similar plans or programs, subject in
each case to the generally applicable terms and conditions of the applicable
plan or program in question and to the sole determination of the Board or any
committee administering such plan or program.
5. EMPLOYMENT RELATIONSHIP. The Company and the Employee acknowledge that the
Employee's employment is and shall continue to be at-will, as defined under
applicable law. If the Employee's employment terminates for any reason, the
Employee shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided by this Agreement, or as may otherwise be
available in accordance with the Company's established employee plans and
policies at the time of termination.
6. TERMINATION BENEFITS. Subject to Sections 8 and 9 below, in the event the
Employee's employment terminates as a result of an Involuntary Termination other
than for Cause upon or within 18 months after a Change of Control, then the
Employee shall be entitled to receive severance and other benefits as follows:
(a) PAY CONTINUATION. The Employee shall be entitled to monthly
payments equal to the Employee's monthly Base Compensation as in effect
immediately prior to the Change of Control plus one-twelfth (1/12) of the
average of the annual bonus amount paid to the Employee with respect to the
three previous calendar years. Such monthly amounts shall be paid
according to the normal payroll practice of the Company for 12 months
following the date of termination (the "Termination Period").
(b) ANNUAL INCENTIVE. The Employee shall be entitled to receive a
percentage of the Employee's Target Incentive for the calendar year in
which such termination occurs. Such percentage shall equal a fraction, the
numerator of which shall be the number of days in such calendar year up to
and including the date of such termination and the denominator of which
shall be the number of days in such calendar year. Such amount shall be
payable according to the normal practice of the Company with respect to the
payment of bonuses.
(c ) OPTIONS. The unvested portion of any stock option(s) held by the
Employee under the Company's stock option plans shall vest and become
exercisable in full upon the date of such termination.
(d) MEDICAL BENEFITS. The Company shall reimburse the Employee for the
cost of the Employee's group health, vision and dental plan coverage in
effect until the end of the Termination Period. The Employee may use this
payment, as well as any other payment made under this Section 6, for such
continuation coverage or for any other purpose. To the extent the Employee
pays the cost of such coverage, and the cost of such coverage is not
deductible as a medical expense by the Employee, the Company shall
"gross-up" the amount of such reimbursement for all taxes payable by the
Employee on the amount of such reimbursement and the amount of such
gross-up.
7. DEFINITION OF TERMS. The following terms referred to in this Agreement
shall have the following meanings:
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(a) CAUSE. "Cause" shall mean (i) any act of personal dishonesty taken
by the Employee in connection with his responsibilities as an
employee and intended to result in substantial personal enrichment
of the Employee, (ii) conviction of a felony that is injurious to
the Company, (iii) a willful act by the Employee which constitutes
gross misconduct and which is injurious to the Company, and (iv)
continued violations by the Employee of the Employee's obligations
under Section 1 of this Agreement that are demonstrably willful and
deliberate on the Employee's part after there has been delivered to
the Employee a written demand for performance from the Company
which describes the basis for the Company's belief that the
Employee has not substantially performed his duties.
(b) CHANGE OF CONTROL. "Change of Control" shall mean the occurrence
of any of the following events:
(i) The acquisition by any "person" (as such term is used in
Sections 13(d) and 14(d) of the Exchange Act) (other than the
Company or a person that directly or indirectly controls, is
controlled by, or is under common control with, the Company) of the
"beneficial ownership" (as defined in Rule 13d-3 under said Act),
directly or indirectly, of securities of the Company representing
fifty percent (50%) or more of the total voting power represented
by the Company's then outstanding voting securities; or
(ii) A change in the composition of the Board of Directors of the
Company occurring within a two-year period, as a result of which
fewer than a majority of the directors are Incumbent Directors.
"Incumbent Directors" shall mean directors who either (A) are
directors of the Company as of the date hereof, or (B) are elected,
or nominated for election, to the Board of Directors of the Company
with the affirmative votes of at least a majority of the Incumbent
Directors at the time of such election or nomination (but shall not
include an individual not otherwise an Incumbent Director whose
election or nomination is in connection with an actual or
threatened proxy contest relating to the election of directors to
the Company); or
(iii) A merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would
result in the voting securities of the Company outstanding
immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities
of the surviving entity) at least fifty percent (50%) of the total
voting power represented by the voting securities of the Company or
such surviving entity outstanding immediately after such merger or
consolidation, or the approval by the stockholders of the Company
of a plan of complete liquidation of the Company or of an agreement
for the sale or disposition by the Company of all or substantially
all the Company's assets.
(c) DISABILITY. "Disability" shall mean that the Employee has been
unable to substantially perform his duties under this Agreement as the
result of his incapacity due to physical or mental illness, and such
inability, at least 26 weeks after its commencement, is determined to be
total and permanent by a physician selected by the Company or its insurers
and acceptable to the Employee or the Employee's legal representative (such
agreement as to acceptability not to be unreasonably withheld).
(d) EXCHANGE ACT. "Exchange Act" shall mean the Securities Exchange
Act of 1934, as amended.
(e) INVOLUNTARY TERMINATION. "Involuntary Termination" shall mean (i)
without the Employee's express written consent, the significant reduction
of the Employee's duties or responsibilities relative to the Employee's
duties or responsibilities in effect immediately prior to such reduction;
provided, however, that a reduction in duties or responsibilities solely by
virtue of the Company being acquired and made part of a larger entity (as,
for example, when the Chief Financial Officer of Company remains as such
following a Change of Control and is not made the Chief Financial Officer
of the acquiring corporation) shall not constitute an "Involuntary
Termination"; (ii) without the Employee's express written consent, a
substantial reduction, without good business reasons, of the facilities and
perquisites (including office space and location) available to the Employee
immediately prior to such reduction; (iii) without the Employee's
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express written consent, a material reduction by the Company in the Base
Compensation or Target Incentive of the Employee as in effect immediately
prior to such reduction, or the ineligibility of the Employee to continue
to participate in any long-term incentive plan of the Company; (iv) a
material reduction by the Company in the kind or level of employee benefits
to which the Employee is entitled immediately prior to such reduction with
the result that the Employee's overall benefits package is significantly
reduced; (v) the relocation of the Employee to a facility or a location
more than 50 miles from the Employee's then present location, without the
Employee's express written consent; (vi) any purported termination of the
Employee by the Company which is not effected for death or Disability or
for Cause, or any purported termination for which the grounds relied upon
are not valid; or (vii) the failure of the Company to obtain the assumption
of this agreement by any successors contemplated in Section 10 below.
8. LIMITATION ON PAYMENTS.
(a) In the event that the severance and other benefits provided for in
this Agreement or otherwise payable to the Employee (i) constitute
"parachute payments" within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code") and (ii) but for this Section
8 would be subject to the excise tax imposed by Section 4999 of the Code,
then the Employee's severance benefits under Section 6 shall be payable
either (i) in full, or (ii) as to such lesser amount which would result in
no portion of such severance benefits being subject to excise tax under
Section 4999 of the Code, whichever of the foregoing amounts, taking into
account the applicable federal, state and local income taxes and the excise
tax imposed by Section 4999, results in the receipt by the Employee on an
after-tax basis, of the greatest amount of severance benefits under this
Agreement, notwithstanding that all or some portion of such severance
benefits may be taxable under Section 4999 of the Code.
(b) If a reduction in the payments and benefits that would otherwise be
paid or provided to the Employee under the terms of this Agreement is
necessary to comply with the provisions of Section 8(a), the Employee shall
be entitled to select which payments or benefits will be reduced and the
manner and method of any such reduction of such payments or benefits
(including but not limited to the number of options that would vest under
Section 6(b) subject to reasonable limitations (including, for example,
express provisions under the Company's benefit plans) (so long as the
requirements of Section 8(a) are met). Within thirty (30) days after the
amount of any required reduction in payments and benefits is finally
determined in accordance with the provisions of Section 8(c), the Employee
shall notify the Company in writing regarding which payments or benefits
are to be reduced. If no notification is given by the Employee, the
Company will determine which amounts to reduce. If, as a result of any
reduction required by Section 8(a), amounts previously paid to the Employee
exceed the amount to which the Employee is entitled, the Employee will
promptly return the excess amount to the Company.
(c ) Unless the Company and the Employee otherwise agree in writing, any
determination required under this Section 8 shall be made in writing by the
Company's independent public accountants (the "Accountants"), whose
determination shall be conclusive and binding upon the Employee and the
Company for all purposes. For purposes of making the calculations required
by this Section 8, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good
faith interpretations concerning the application of Sections 280G and 4999
of the Code. The Company and the Employee shall furnish to the Accountants
such information and documents as the Accountants may reasonably request in
order to make a determination under this Section. The Company shall bear
all costs the Accountants may reasonably incur in connection with any
calculations contemplated by this Section 8.
9. CERTAIN BUSINESS COMBINATIONS. In the event it is determined by the Board,
upon receipt of a written opinion of the Company's independent public
accountants, that the enforcement of any Section or subsection of this
Agreement, including, but not limited to, Section 6(b) hereof, which allows for
the acceleration of vesting of options to purchase shares of the Company's
common stock upon a termination in connection with a Change of Control, would
preclude accounting for any proposed business combination of the Company
involving a Change of Control as a pooling of interests, and the Board otherwise
desires to approve such a proposed business transaction which
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requires as a condition to the closing of such transaction that it be accounted
for as a pooling of interests, then any such Section of this Agreement shall be
null and void, but only if the absence of enforcement of such Section would
preserve the pooling treatment. For purposes of this Section 9, the Board's
determination shall require the unanimous approval of the disinterested Board
members.
10. SUCCESSORS.
(a) COMPANY'S SUCCESSORS. Any successor to the Company (whether direct
or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's
business and assets shall assume the obligations under this Agreement and
agree expressly to perform the obligations under this Agreement in the same
manner and to the same extent as the Company would be required to perform
such obligations in the absence of a succession. For all purposes under
this Agreement, the term "Company" shall include any successor to the
Company's business and assets which executes and delivers the assumption
agreement described in this Section 10(a) or which becomes bound by the
terms of this Agreement by operation of law.
(b) EMPLOYEE'S SUCCESSORS. The terms of this Agreement and all rights
of the Employee hereunder shall inure to the benefit of, and be enforceable
by, the Employee's personal or legal representatives, executors,
administrators, successors, heirs, devisees and legatees.
11. NOTICE. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. In the case of the Employee, mailed
notices shall be addressed to him at the home address which he most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall
be directed to the attention of its Secretary.
12. MISCELLANEOUS PROVISIONS.
(a) WAIVER. No provision of this Agreement shall be modified, waived
or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Employee and by an authorized officer of the
Company (other than the Employee). No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by
the other party shall be considered a waiver of any other condition or
provision or of the same condition or provision at another time.
(b) WHOLE AGREEMENT. No agreements, representations or understandings
(whether oral or written and whether express or implied) which are not
expressly set forth in this Agreement have been made or entered into by
either party with respect to the subject matter hereof.
(c) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California.
(d) SEVERABILITY. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full
force and effect.
(e) ARBITRATION. Any dispute or controversy arising out of, relating
to or in connection with this Agreement shall be settled exclusively by
binding arbitration in San Diego, California, in accordance with the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. The Company and the
Employee shall each pay one-half of the costs and expenses of such
arbitration, and each shall separately pay its counsel fees and expenses.
Punitive damages shall not be awarded.
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(f) NO ASSIGNMENT OF BENEFITS. The rights of any person to payments or
benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation
of law, including (without limitation) bankruptcy, garnishment, attachment
or other creditor's process, and any action in violation of this Section
12(g) shall be void.
(g) ASSIGNMENT BY COMPANY. The Company may assign its rights under
this Agreement to an affiliate, and an affiliate may assign its rights
under this Agreement to another affiliate of the Company or to the Company;
provided, however, that no assignment shall be made if the net worth of the
assignee is less than the net worth of the Company at the time of
assignment. In the case of any such assignment, the term "Company" when
used in a section of this Agreement shall mean the corporation that
actually employs the Employee.
(h) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of the Company by its duly authorized officer, as of the day and year first
above written.
COMPANY: CYMER, INC.
By: Robert P. Akins
Title: Chairman of the Board, Chief Executive Officer and President
/s/ Robert P. Akins
----------------------------------------------------
EMPLOYEE: /s/ Pascal Didier
----------------------------------------------------
Pascal Didier
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EXHIBIT 10.19
EMPLOYMENT AGREEMENT
--------------------
This Employment Agreement (the "Agreement") is made and entered into effective
as of November 26, 1997, by and between G. Scott Scholler (the "Employee") and
Cymer, Inc., a Nevada corporation (the "Company").
RECITALS
A. The Company may from time to time need to address the possibility of an
acquisition transaction or change of control event. The Board of Directors of
the Company (the "Board") recognizes that such events can be a distraction to
the Employee and can cause the Employee to consider alternative employment
opportunities. The Board has determined that it is in the best interests of the
Company and its stockholders to assure that the Company will have the continued
dedication and objectivity of the Employee, notwithstanding the possibility,
threat or occurrence of a Change of Control (as defined below) of the Company,
although no such Change is now contemplated.
B. The Board believes that it is in the best interests of the Company and its
stockholders to provide the Employee with an incentive to continue his
employment and to motivate the Employee to maximize the value of the Company
upon a Change of Control for the benefit of its stockholders.
C. The Board believes that it is imperative to provide the Employee with
certain benefits upon a Change of Control and, under certain circumstances, upon
termination of the Employee's employment in connection with a Change of Control,
which benefits are intended to provide the Employee with financial security and
provide sufficient incentive and encouragement to the Employee to remain with
the Company notwithstanding the possibility of a Change of Control.
D. To accomplish the foregoing objectives, the Board has directed the Company,
upon execution of this Agreement by the Employee, to agree to the terms provided
herein.
E. Certain capitalized terms used in this Agreement are defined in Section 7
below.
AGREEMENT
In consideration of the mutual covenants herein contained, and in consideration
of the continuing employment of the Employee by the Company, the parties agree
as follows:
1. DUTIES AND SCOPE OF EMPLOYMENT. The Company shall employ the Employee in
the position of Sr. Vice President of Operations, as such position has been
defined in terms of responsibilities and compensation as of the effective date
of this Agreement; provided, however, that the Board shall have the right, at
any time prior to the occurrence of a Change of Control, to revise such
responsibilities and compensation as the Board in its discretion may deem
necessary or appropriate. The Employee shall comply with and be bound by the
Company's operating policies, procedures and practices from time to time in
effect during his employment. During the term of the Employee's employment with
the Company, the Employee shall continue to devote his full time, skill and
attention to his duties and responsibilities, and shall perform them faithfully,
diligently and competently, and the Employee shall use his best efforts to
further the business of the Company and its affiliated entities.
2. BASE COMPENSATION. The Company shall pay the Employee as compensation for
his services a base salary at the annualized rate of $200,000.00. Such salary
shall be paid periodically in accordance with normal Company payroll practices.
The Board or the Compensation Committee of the Board shall review the base
salary of the Employee according to normal Company practice, but no less
frequently than annually, and may in its discretion increase but not decrease
the base salary. The Board or the Compensation Committee of the Board shall
review the
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base salary of the Employee according to normal Company practice, but no less
frequently than annually, and may in its discretion increase but not decrease
the base salary below the amount specified in this agreement.
3. ANNUAL INCENTIVE. Beginning with the Company's current fiscal year and for
each fiscal year thereafter during the term of this Agreement, the Employee
shall be eligible to receive an annual bonus under the Company's annual
incentive plan (the "Annual Incentive") based upon performance targets approved
by the compensation committee of the Board (the "Target Incentive"). The Annual
Incentive payable hereunder shall be payable in accordance with the Company's
normal practices and policies.
4. EMPLOYEE BENEFITS. The Employee shall be eligible to participate in the
employee benefit plans and executive compensation programs maintained by the
Company applicable to other key executives of the Company, including (without
limitation) retirement plans, savings or profit-sharing plans, stock option,
incentive or other bonus plans, life, disability, health, accident and other
insurance programs, paid vacations, and similar plans or programs, subject in
each case to the generally applicable terms and conditions of the applicable
plan or program in question and to the sole determination of the Board or any
committee administering such plan or program.
5. EMPLOYMENT RELATIONSHIP. The Company and the Employee acknowledge that the
Employee's employment is and shall continue to be at-will, as defined under
applicable law. If the Employee's employment terminates for any reason, the
Employee shall not be entitled to any payments, benefits, damages, awards or
compensation other than as provided by this Agreement, or as may otherwise be
available in accordance with the Company's established employee plans and
policies at the time of termination.
6. TERMINATION BENEFITS. Subject to Sections 8 and 9 below, in the event the
Employee's employment terminates as a result of an Involuntary Termination other
than for Cause upon or within 18 months after a Change of Control, then the
Employee shall be entitled to receive severance and other benefits as follows:
(a) PAY CONTINUATION. The Employee shall be entitled to monthly payments
equal to the Employee's monthly Base Salary as in effect immediately prior
to the Change of Control plus one-twelfth (1/12) of the average of the
annual bonus amount paid to the Employee with respect to the three previous
calendar years. Such monthly amounts shall be paid according to the normal
payroll practice of the Company for 12 months following the date of
termination (the "Termination Period").
(b) ANNUAL INCENTIVE. The Employee shall be entitled to receive a
percentage of the Employee's Target Incentive for the calendar year in
which such termination occurs. Such percentage shall equal a fraction, the
numerator of which shall be the number of days in such calendar year up to
and including the date of such termination and the denominator of which
shall be the number of days in such calendar year. Such amount shall be
payable according to the normal practice of the Company with respect to the
payment of bonuses.
(c ) OPTIONS. The unvested portion of any stock option(s) held by the
Employee under the Company's stock option plans shall vest and become
exercisable in full upon the date of such termination.
(d) MEDICAL BENEFITS. The Company shall reimburse the Employee for the
cost of the Employee's group health, vision and dental plan coverage in
effect until the end of the Termination Period. The Employee may use this
payment, as well as any other payment made under this Section 6, for such
continuation coverage or for any other purpose. To the extent the Employee
pays the cost of such coverage, and the cost of such coverage is not
deductible as a medical expense by the Employee, the Company shall
"gross-up" the amount of such reimbursement for all taxes payable by the
Employee on the amount of such reimbursement and the amount of such
gross-up.
7. DEFINITION OF TERMS. The following terms referred to in this Agreement
shall have the following meanings:
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(a) CAUSE. "Cause" shall mean (i) any act of personal dishonesty taken by the
Employee in connection with his responsibilities as an employee and intended to
result in substantial personal enrichment of the Employee, (ii) conviction of a
felony that is injurious to the Company, (iii) a willful act by the Employee
which constitutes gross misconduct and which is injurious to the Company, and
(iv) continued violations by the Employee of the Employee's obligations under
Section 1 of this Agreement that are demonstrably willful and deliberate on the
Employee's part after there has been delivered to the Employee a written demand
for performance from the Company which describes the basis for the Company's
belief that the Employee has not substantially performed his duties.
(b) CHANGE OF CONTROL. "Change of Control" shall mean the occurrence of any of
the following events:
(i) The acquisition by any "person" (as such term is used in Sections
13(d) and 14(d) of the Exchange Act) (other than the Company or a person
that directly or indirectly controls, is controlled by, or is under common
control with, the Company) of the "beneficial ownership" (as defined in
Rule 13d-3 under said Act), directly or indirectly, of securities of the
Company representing fifty percent (50%) or more of the total voting power
represented by the Company's then outstanding voting securities; or
(ii) A change in the composition of the Board of Directors of the
Company occurring within a two-year period, as a result of which fewer than
a majority of the directors are Incumbent Directors. "Incumbent Directors"
shall mean directors who either (A) are directors of the Company as of the
date hereof, or (B) are elected, or nominated for election, to the Board of
Directors of the Company with the affirmative votes of at least a majority
of the Incumbent Directors at the time of such election or nomination (but
shall not include an individual not otherwise an Incumbent Director whose
election or nomination is in connection with an actual or threatened proxy
contest relating to the election of directors to the Company); or
(iii) A merger or consolidation of the Company with any other
corporation, other than a merger or consolidation which would result in the
voting securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity) at least fifty
percent (50%) of the total voting power represented by the voting
securities of the Company or such surviving entity outstanding immediately
after such merger or consolidation, or the approval by the stockholders of
the Company of a plan of complete liquidation of the Company or of an
agreement for the sale or disposition by the Company of all or
substantially all the Company's assets.
(c) DISABILITY. "Disability" shall mean that the Employee has been unable to
substantially perform his duties under this Agreement as the result of his
incapacity due to physical or mental illness, and such inability, at least 26
weeks after its commencement, is determined to be total and permanent by a
physician selected by the Company or its insurers and acceptable to the Employee
or the Employee's legal representative (such agreement as to acceptability not
to be unreasonably withheld).
(d) EXCHANGE ACT. "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(e) INVOLUNTARY TERMINATION. "Involuntary Termination" shall mean (i) without
the Employee's express written consent, the significant reduction of the
Employee's duties or responsibilities relative to the Employee's duties or
responsibilities in effect immediately prior to such reduction; provided,
however, that a reduction in duties or responsibilities solely by virtue of the
Company being acquired and made part of a larger entity (as, for example, when
the Chief Financial Officer of Company remains as such following a Change of
Control and is not made the Chief Financial Officer of the acquiring
corporation) shall not constitute an "Involuntary Termination"; (ii) without the
Employee's express written consent, a substantial reduction, without good
business reasons, of the facilities and perquisites (including office space and
location) available to the Employee immediately prior to such reduction; (iii)
without the Employee's
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express written consent, a material reduction by the Company in the Base
Compensation or Target Incentive of the Employee as in effect immediately prior
to such reduction, or the ineligibility of the Employee to continue to
participate in any long-term incentive plan of the Company; (iv) a material
reduction by the Company in the kind or level of employee benefits to which the
Employee is entitled immediately prior to such reduction with the result that
the Employee's overall benefits package is significantly reduced; (v) the
relocation of the Employee to a facility or a location more than 50 miles from
the Employee's then present location, without the Employee's express written
consent; (vi) any purported termination of the Employee by the Company which is
not effected for death or Disability or for Cause, or any purported termination
for which the grounds relied upon are not valid; or (vii) the failure of the
Company to obtain the assumption of this agreement by any successors
contemplated in Section 10 below.
8. LIMITATION ON PAYMENTS.
(a) In the event that the severance and other benefits provided for in
this Agreement or otherwise payable to the Employee (i) constitute
"parachute payments" within the meaning of Section 280G of the Internal
Revenue Code of 1986, as amended (the "Code") and (ii) but for this Section
8 would be subject to the excise tax imposed by Section 4999 of the Code,
then the Employee's severance benefits under Section 6 shall be payable
either (i) in full, or (ii) as to such lesser amount which would result in
no portion of such severance benefits being subject to excise tax under
Section 4999 of the Code, whichever of the foregoing amounts, taking into
account the applicable federal, state and local income taxes and the excise
tax imposed by Section 4999, results in the receipt by the Employee on an
after-tax basis, of the greatest amount of severance benefits under this
Agreement, notwithstanding that all or some portion of such severance
benefits may be taxable under Section 4999 of the Code.
(b) If a reduction in the payments and benefits that would otherwise be
paid or provided to the Employee under the terms of this Agreement is
necessary to comply with the provisions of Section 8(a), the Employee shall
be entitled to select which payments or benefits will be reduced and the
manner and method of any such reduction of such payments or benefits
(including but not limited to the number of options that would vest under
Section 6(b) subject to reasonable limitations (including, for example,
express provisions under the Company's benefit plans) (so long as the
requirements of Section 8(a) are met). Within thirty (30) days after the
amount of any required reduction in payments and benefits is finally
determined in accordance with the provisions of Section 8(c), the Employee
shall notify the Company in writing regarding which payments or benefits
are to be reduced. If no notification is given by the Employee, the
Company will determine which amounts to reduce. If, as a result of any
reduction required by Section 8(a), amounts previously paid to the Employee
exceed the amount to which the Employee is entitled, the Employee will
promptly return the excess amount to the Company.
(c ) Unless the Company and the Employee otherwise agree in writing, any
determination required under this Section 8 shall be made in writing by the
Company's independent public accountants (the "Accountants"), whose
determination shall be conclusive and binding upon the Employee and the
Company for all purposes. For purposes of making the calculations required
by this Section 8, the Accountants may make reasonable assumptions and
approximations concerning applicable taxes and may rely on reasonable, good
faith interpretations concerning the application of Sections 280G and 4999
of the Code. The Company and the Employee shall furnish to the Accountants
such information and documents as the Accountants may reasonably request in
order to make a determination under this Section. The Company shall bear
all costs the Accountants may reasonably incur in connection with any
calculations contemplated by this Section 8.
9. CERTAIN BUSINESS COMBINATIONS. In the event it is determined by the Board,
upon receipt of a written opinion of the Company's independent public
accountants, that the enforcement of any Section or subsection of this
Agreement, including, but not limited to, Section 6(b) hereof, which allows for
the acceleration of vesting of options to purchase shares of the Company's
common stock upon a termination in connection with a Change of Control, would
preclude accounting for any proposed business combination of the Company
involving a Change of Control as a pooling of interests, and the Board otherwise
desires to approve such a proposed business transaction which
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requires as a condition to the closing of such transaction that it be accounted
for as a pooling of interests, then any such Section of this Agreement shall be
null and void, but only if the absence of enforcement of such Section would
preserve the pooling treatment. For purposes of this Section 9, the Board's
determination shall require the unanimous approval of the disinterested Board
members.
10. SUCCESSORS.
(a) COMPANY'S SUCCESSORS. Any successor to the Company (whether direct
or indirect and whether by purchase, lease, merger, consolidation,
liquidation or otherwise) to all or substantially all of the Company's
business and assets shall assume the obligations under this Agreement and
agree expressly to perform the obligations under this Agreement in the same
manner and to the same extent as the Company would be required to perform
such obligations in the absence of a succession. For all purposes under
this Agreement, the term "Company" shall include any successor to the
Company's business and assets which executes and delivers the assumption
agreement described in this Section 10(a) or which becomes bound by the
terms of this Agreement by operation of law.
(b) EMPLOYEE'S SUCCESSORS. The terms of this Agreement and all rights
of the Employee hereunder shall inure to the benefit of, and be enforceable
by, the Employee's personal or legal representatives, executors,
administrators, successors, heirs, devisees and legatees.
11. NOTICE. Notices and all other communications contemplated by this
Agreement shall be in writing and shall be deemed to have been duly given when
personally delivered or when mailed by U.S. registered or certified mail, return
receipt requested and postage prepaid. In the case of the Employee, mailed
notices shall be addressed to him at the home address which he most recently
communicated to the Company in writing. In the case of the Company, mailed
notices shall be addressed to its corporate headquarters, and all notices shall
be directed to the attention of its Secretary.
9. MISCELLANEOUS PROVISIONS.
(a) WAIVER. No provision of this Agreement shall be modified, waived
or discharged unless the modification, waiver or discharge is agreed to in
writing and signed by the Employee and by an authorized officer of the
Company (other than the Employee). No waiver by either party of any breach
of, or of compliance with, any condition or provision of this Agreement by
the other party shall be considered a waiver of any other condition or
provision or of the same condition or provision at another time.
(b) WHOLE AGREEMENT. No agreements, representations or understandings
(whether oral or written and whether express or implied) which are not
expressly set forth in this Agreement have been made or entered into by
either party with respect to the subject matter hereof.
(c ) CHOICE OF LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the laws of the State of
California.
(d) SEVERABILITY. The invalidity or unenforceability of any provision
or provisions of this Agreement shall not affect the validity or
enforceability of any other provision hereof, which shall remain in full
force and effect.
(e) ARBITRATION. Any dispute or controversy arising out of, relating
to or in connection with this Agreement shall be settled exclusively by
binding arbitration in San Diego, California, in accordance with the
National Rules for the Resolution of Employment Disputes of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction. The Company and the
Employee shall each pay one-half of the costs and expenses of such
arbitration, and each shall separately pay its counsel fees and expenses.
Punitive damages shall not be awarded.
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(f) NO ASSIGNMENT OF BENEFITS. The rights of any person to payments or
benefits under this Agreement shall not be made subject to option or
assignment, either by voluntary or involuntary assignment or by operation
of law, including (without limitation) bankruptcy, garnishment, attachment
or other creditor's process, and any action in violation of this Section
9(g) shall be void.
(g) ASSIGNMENT BY COMPANY. The Company may assign its rights under
this Agreement to an affiliate, and an affiliate may assign its rights
under this Agreement to another affiliate of the Company or to the Company;
provided, however, that no assignment shall be made if the net worth of the
assignee is less than the net worth of the Company at the time of
assignment. In the case of any such assignment, the term "Company" when
used in a section of this Agreement shall mean the corporation that
actually employs the Employee.
(h) COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together will
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties has executed this Agreement, in the case
of the Company by its duly authorized officer, as of the day and year first
above written.
By: Robert P. Akins
Title: Chairman of the Board, Chief Executive Officer and President
/s/ Robert P. Akins
------------------------------------------
EMPLOYEE: /s/ G. Scott Scholler
------------------------------------------
G. Scott Scholler
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