Varian Medical Systems Inc – ‘8-K’ for 8/11/95 – EX-2.1

As of:  Wednesday, 8/23/95   ·   For:  8/11/95   ·   Accession #:  950109-95-3374   ·   File #:  1-07598

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Current Report   —   Form 8-K
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 8-K         Current Report                                         9     36K 
 2: EX-2.1      Amendment to Stock Sale                                6     31K 
 3: EX-22.1     Second Amendment and Stock Sale                        6     33K 

EX-2.1   —   Amendment to Stock Sale

EX-2.1
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EXHIBIT 2.1 

FIRST AMENDMENT TO STOCK SALE AGREEMENT 

FIRST AMENDMENT TO STOCK SALE AGREEMENT (the "Amendment"), dated as of      
August 11, 1995, by and among Varian Associates, Inc., a Delaware corporation   
("Varian"), Communications & Power Industries Holding Corporation, a Delaware   
corporation ("Holding"), and CPII Acquisition Corp., a Delaware corporation     
(formerly, Communications & Power Industries Holding Corporation) ("CPI").      

RECITALS  

A. Varian and CPI are parties to the Stock Sale Agreement, dated as of June 
9, 1995 (the "Agreement").                                                      

B. Varian and CPI desire to amend the Agreement in order to add Holding as a
party thereto with respect to certain provisions thereof, to reflect a change   
in the corporate name of Buyer and otherwise as provided in this Amendment.     

In consideration of the premises and the respective representations,        
warranties and agreements herein contained, the parties hereto hereby agree as  
follows:                                                                        

SECTION 1. The definition of "Buyer" contained in Article I, Section 1.1 of 
the Agreement hereby is amended so as to read in its entirety as follows:       

" "Buyer" means CPII Acquisition Corp., a Delaware corporation, and, as 
applicable, Affiliates of Buyer formed for the purpose of consummating the  
transactions contemplated by this Agreement."                               

SECTION 2. Article I, Section 1.1 of the Agreement hereby is amended by     
adding the following definition thereto:                                        

" "Holding" means Communications & Power Industries Holding Corporation,
a Delaware corporation."                                                    

SECTION 3. Article II, subsection 2.8(b) of the Agreement hereby is amended 
so as to read in its entirety as follows:                                       

 "(b) Within 60 days after the Closing Date (or such longer period of time
as may be reasonably required), Buyer shall prepare and deliver to Seller a 
balance sheet of the Business as of the Closing Date (the "Closing Balance  
Sheet"). Such Closing Balance Sheet (i) shall be prepared on the same basis 
(i.e., including and excluding the same categories of assets and            
liabilities) as the Adjusted Balance Sheet attached hereto as Schedule 2.8  
(which Adjusted Balance Sheet was derived from the Balance Sheet), except   
that the Closing Balance Sheet shall reflect the items referred to in       
subsection 11.3(d) and shall not reflect the account receivable referred to 
in subsection 2.8(f), and, to the extent consistent therewith, in           
accordance in all material respects with GAAP and, to the extent consistent 
therewith, Seller's accounting practices and procedures that were employed  
in the preparation of the Balance Sheet, (ii) shall be audited by Buyer's   
independent certified public accountants, KPMG Peat Marwick, which audit    
shall apply the same accounting principles specified in the preceding       
clause (i), and (iii) shall indicate the Closing Date Book Value, which     
shall equal the total assets of the Business (excluding capitalized items   
reflected on the Closing Balance Sheet as provided for in the Transitional  
Services Agreement) as of the Closing Date minus the total liabilities of   
the Business as of the Closing Date as shown on the "As Adjusted" column of 
the Closing Balance Sheet calculated on the same basis (i.e., including and 
excluding the same categories of assets and liabilities) as the Adjusted    
Balance Sheet, except that the Closing Balance Sheet shall reflect the      
items referred to in subsection 11.3(d) and shall not reflect the account   
receivable referred to in subsection 2.8(f). Buyer shall further instruct   
KPMG Peat Marwick to determine and report to Buyer and Seller its           
calculation of the Closing Date Book Value and to afford Seller's internal  
auditors and independent certified public accountants full access to all    
non-proprietary work papers generated in connection with the preparation by 
Buyer of the Closing Balance Sheet and to all books, records, information   
and employees of Buyer or EDB Subsidiary involved in the preparation of the 
Closing Balance Sheet. In connection with the preparation of the Closing    
Balance Sheet, Seller shall make available to Buyer such supporting         
documentation as Buyer may reasonably request for the purpose of agreeing   
on the allocation provided for in Section 11.2."                            

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SECTION 4. Article II of the Agreement hereby is amended by adding thereto a
new subsection 2.8(f) which shall read in its entirety as follows:              

"(f) Included in the Assets is an uncollectible account receivable owed 
by Jung Juang to Seller, which account receivable has been written down by  
Seller in its entirety. Such account receivable shall not be reflected on   
the Closing Balance Sheet. Buyer shall pay to Seller 50% of all amounts     
Buyer collects with respect to such account receivable promptly after       
Buyer's receipt of such amounts."                                           

SECTION 5. Article III, Section 3.1 of the Agreement hereby is amended so as
to read in its entirety as follows:                                             

"3.1 ASSUMPTION OF LIABILITIES. Effective as of the Closing, (1) Holding
(or Buyer's Affiliates, as provided in Section 3.3) shall, without any      
further responsibility or liability of or recourse to Seller or any of      
Seller's Affiliates, subsidiaries, stockholders, officers, directors,       
employees, agents, successors or assigns, absolutely and irrevocably        
assume, pay, perform and be liable and responsible for any and all of the   
Liabilities set forth in the following clauses (a), (b) and (c) and (2)     
Buyer (or its Affiliates, as provided in Section 3.3) shall, without any    
further responsibility or liability of or recourse to Seller or any of      
Seller's Affiliates, subsidiaries, stockholders, officers, directors,       
employees, agents, successors or assigns, absolutely and irrevocably        
assume, pay, perform and be liable and responsible for any and all of the   
Liabilities set forth in the following clauses (d), (e) and (f), in any     
such case whether the payment obligation becomes due prior to or on or      
after the Closing Date (collectively, the "Assumed Liabilities"):           

 (a) all Liabilities reflected on the Closing Balance Sheet, including
trade accounts payable, accrued expenses and accrued liabilities for    
goods delivered or to be delivered to Seller or its subsidiaries or     
Affiliates and for services performed or to be performed for Seller or  
its subsidiaries or Affiliates in connection with the Business;         

(b) all Liabilities arising out of or in connection with any        
attempted or actual product returns (whether due to contract, law,      
regulation, Governmental Order or voluntary action by EDB Subsidiary or 
Buyer) or any product warranties, whether implied or express, with      
respect to the Assets, the Business or any product designed,            
manufactured or sold by or on behalf of the Business, including all     
warranty claims pending as of the Closing; provided, however, with      
respect to any Liability arising from Seller's breach before the        
Closing of any contract, agreement, purchase order or commitment of the 
Business, Holding's only obligation shall be to repair, replace or      
maintain products or components thereof at Seller's sole expense;       

 (c) all Liabilities for bodily injury or property damage arising from
occurrences after the Closing as a result of any alleged or actual      
defects in products designed or manufactured by or on behalf of Seller, 
any subsidiary or Affiliate thereof, or the Business or assembled by    
Seller or any of its subsidiaries or Affiliates in connection with the  
Business (including Liabilities for negligence, failures to warn, and   
breach of express or implied warranty); provided, however, that the     
foregoing Liabilities shall constitute Assumed Liabilities only to the  
extent that sales of the products involved are shipped from and after   
the Closing;                                                            

(d) all Liabilities arising from or related to all unperformed or   
unmatured obligations and covenants of all contracts, agreements,       
arrangements, orders, leases, licenses, permits, purchase orders and    
commitments included in the Assets;                                     

(e) all Liabilities otherwise expressly undertaken by Buyer pursuant
to this Agreement or with respect to which Buyer either has released or 
agreed to indemnify the Seller Indemnified Parties pursuant to Article  
X; and                                                                  

 (f) the obligations of Buyer or any of its Affiliates with respect to
Taxes as and to the extent provided in Article XI."                     

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SECTION 6. Article III, subsections 3.2(d) and 3.2(e) of the Agreement      
hereby is amended so as to read in their entirety as follows:                   

"(d) all Liabilities arising from Governmental Claims arising from the  
conduct of the Business on or before the Closing Date (other than Holding's 
obligation to repair, replace or maintain products or components thereof at 
Holding's sole expense as and to the extent provided in subsection 3.1(b)); 

(e) all Liabilities arising from Seller's breach before the Closing of  
any contract, agreement, purchase order, lease, license or commitment       
included in the Assets (other than Holding's obligation to repair, replace  
or maintain products or components thereof at Holding's sole expense as and 
to the extent provided in subsection 3.1(b));"                              

SECTION 7. Article III, Section 3.3 of the Agreement hereby is amended so as
to read in its entirety as follows:                                             

"3.3 LIABILITIES OF SUBSIDIARIES OF SELLER. Each of Holding and Buyer   
acknowledges that certain of the Assumed Liabilities are Liabilities of the 
Foreign Sellers and Varian Canada. Accordingly, at the Closing and in       
consideration of the transfer of the Foreign Assets and the Varian Canada   
Assets to Buyer and its Affiliates, Buyer and the respective Affiliates of  
Buyer acquiring particular Assets shall assume the Assumed Liabilities      
associated with such Assets from the applicable Foreign Sellers or Varian   
Canada, as the case may be, on the same terms as the Assumed Liabilities    
assumed by Holding and Buyer from Seller pursuant to Section 3.1. The       
foregoing notwithstanding, Holding and Buyer shall cause EDB Subsidiary to  
be responsible for its Assumed Liabilities and for the satisfaction and     
performance of all other Assumed Liabilities."                              

SECTION 8. The last sentence of Article IV, Section 4.1 of the Agreement    
hereby is deleted and the definition of "Closing Date" contained in Article I,  
Section 1.1 of the Agreement hereby is amended so as to read in its entirety    
as follows:                                                                     

" "Closing Date" means 11:59 p.m., Pacific Daylight Time, on August 11, 
1995."                                                                      

SECTION 9. Article IV, subsection 4.3(a) of the Agreement hereby is amended 
so as to read in its entirety as follows:                                       

"(a) (x) To Seller (acting on behalf of itself and as agent for the     
Foreign Sellers), the Purchase Price (other than the portion allocable to   
the Varian Canada Assets in accordance with subsection 2.8(a)), by wire     
transfer of immediately available funds to Seller's account at Bank of      
America National Trust and Savings Association, San Francisco Main Branch   
(Account No. 12338-51938; ABA transit routing number 121000358), and (y) to 
Varian Canada (or a subsidiary thereof), the portion of the Purchase Price  
allocable to the Varian Canada Assets in accordance with subsection 2.8(a), 
by wire transfer of immediately available funds to Varian Canada's account  
at Royal Bank of Canada, 83 Main Street, Georgetown, Ontario (Account No.   
00003 01642 4001905);"                                                      

SECTION 10. Article VII, Section 7.13 of the Agreement hereby is amended so 
as to to read in its entirety as follows:                                       

 "7.13 SELLER OBLIGATIONS WITH RESPECT TO MANAGEMENT STOCK PURCHASES. With
respect to each of the employees of the Business listed on Schedule 7.13    
(each, a "Management Investor") who enters into a Management Subscription   
and Stockholders Agreement among himself, Holding and Green Equity          
Investors II, L.P. (a "Subscription Agreement"), prior to the Closing and   
as an additional inducement of Holding to execute and deliver this          
Agreement: (i) Seller shall pay to such Management Investor an amount       
which, net of all taxes reasonably expected to be owed by such Management   
Investor thereon, is equal to at least one third of the purchase price due  
to Holding from such Management Investor for Holding's capital stock        
purchased pursuant to the Subscription Agreement, provided, however, that   
Seller shall not be obligated to so pay more than $800,000 (net of such     
taxes) in the aggregate to all Management Investors; and (ii) Seller shall  
execute and deliver to Holding a Guaranty, substantially in the form        
described in the Subscription Agreement, with respect to the promissory     
note, if any, delivered to Holding by such Management Investor in partial   
payment of the purchase price due to Holding from such Management Investor  
for Holding's capital stock purchased pursuant to the Subscription          
Agreement."                                                                 

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SECTION 11. Article XI, subsection 11.3(d) of the Agreement hereby is       
amended so as to read in its entirety as follows:                               

"(d) State and local real and personal property Taxes relating to the   
Assets for the Tax period in which the Closing Date occurs shall be         
prorated between Buyer and Seller on the following basis: Seller shall be   
responsible for the payment of all such Taxes for the period up to and      
including the Closing Date; and Buyer shall be responsible for payment of   
all such Taxes for the period after the Closing Date. All such Taxes        
assessed on an annual basis shall be prorated on the assumption that an     
equal amount of Tax applies to each day of the year, regardless of how      
installment payments are billed or made. Any supplemental property Taxes or 
assessments which arise out of a revaluation of an Asset which revaluation  
would not have occurred except for the change in ownership of the Asset     
shall be borne by Buyer. Any amount of such Taxes due from one party to the 
other pursuant to this subsection 11.3(d) shall be reflected in the Closing 
Balance Sheet as either a prepaid item or as an accrued liability, as       
applicable. Any amount of such Taxes reflected on the Closing Balance Sheet 
shall be deemed to have been paid at the Closing Date; provisions,          
accruals, reserves and like items shall be deemed to have been paid by      
Seller (or Foreign Seller or Varian Canada, as the case may be) and prepaid 
items shall be deemed to have been paid by Buyer (or Affiliate of Buyer, as 
the case may be). If such Taxes and assessments are not available as of the 
Closing Date, for purposes of apportionment between Buyer and Seller and    
payment pursuant to this subsection 11.3(d), the amount thereof shall be    
estimated on the basis of the prior year's Taxes and assessments and any    
incremental payment shall be adjusted after receipt of the final Tax        
statements, but in any event within 15 days after such statements are       
provided by one party to the other."                                        

SECTION 12. Article XII, subsection 12.2(b)(i) of the Agreement hereby is   
amended so as to read in its entirety as follows:                               

"(b) (i) As of the Closing Date, Buyer shall cause EDB Subsidiary to    
cause the participants in the Old Plan who accept EDB Subsidiary's offer of 
employment pursuant to Section 12.1 (the "Transferred Participants") to be  
covered by a plan (the "New Plan") qualified under Section 401 of the Code  
and substantially similar to the Old Plan (but with no obligation on the    
part of Buyer or its Affiliate to provide the same contribution level or    
options as to form of distribution). EDB Subsidiary shall at such time or   
as soon thereafter as is reasonably practicable notify Seller of the name   
of such New Plan and the identity of the trustee and shall provide Seller   
with such additional information as Seller may reasonably require to carry  
out the terms of this section 12.2(b). Promptly after the Closing, EDB      
Subsidiary shall apply for a favorable determination letter from the        
Service regarding the New Plan's qualification under Section 401(a) of the  
Code and shall take all actions necessary in order to obtain such letter,   
including making all necessary or appropriate changes to the terms of the   
New Plan. Seller shall offer each Transferred Participant the opportunity   
to elect (1) to receive a distribution of his or her Old Plan account, (2)  
to defer distribution of his or her Old Plan account as provided in the Old 
Plan (but only if his or her account exceeds $3,500 in value), and/or (3)   
to have all or part of the taxable portion of his or her Old Plan account   
transferred in a "direct rollover" (within the meaning of Treas. Reg.       
section 1.401(a)(31)-1T) to the New Plan or to an individual retirement     
account (within the meaning of Section 408(a) of the Code). To the extent   
any Transferred Participant elects a direct rollover to the New Plan, the   
New Plan shall accept such rollover on behalf of the Transferred            
Participant."                                                               

SECTION 13. Article XII of the Agreement hereby is amended by adding thereto
a new subsection 12.2(d) which shall read in its entirety as follows:           

"(d) Buyer shall make a cash payment to each Employee hired by Buyer or 
any of its Affiliates who was covered immediately prior to the Closing Date 
under Seller's Results-Based Variable Rewards System (the "gain sharing     
plan") or Seller's "sales incentive plan" (together, the "Applicable        
Plans"). Payment under the Applicable Plans shall be (i) for purposes of    
eligibility, calculated as if such Employees had remained as employees of   
Seller through September 29, 1995, (ii) made at the time they otherwise     
would have been made under the terms of the Applicable Plans, and (iii)     
made to each such Employee who otherwise is eligible for a payment or       
payments under the Applicable Plans. Buyer shall calculate that             

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portion of the gross payments required to be made under the Applicable      
Plans, including the employer-paid portion of any payroll tax, which are    
attributable to Seller ("Seller's Plan Obligations") based on actual        
performance from September 30, 1994, up to and including the Closing Date,  
relative to actual performance during all of Seller's fiscal year ending on 
September 29, 1995. At least six business days prior to the date that       
payment under the Applicable Plans is to be made to Employees, Buyer shall  
provide Seller with written documentation showing the bases for and Buyer's 
calculation of Seller's Plan Obligations. Seller shall pay to Buyer such    
amount not later than one day before the date Buyer intends to pay such     
amount to Employees. Notwithstanding anything to the contrary in this       
Agreement, no amount in respect of Seller's Plan Obligations shall be       
reflected as an accrued liability on the Closing Balance Sheet."            

SECTION 14. Disclosure Schedule Section 5.12 hereby is amended so as to read
in its entirety as set forth in Exhibit A hereto.                               

SECTION 15. Schedule 12.1 to the Agreement hereby is amended so as to read  
in its entirety as set forth in Exhibit B hereto.                               

SECTION 16. Schedule 2.3(a)(ii)(1), Schedule 2.3(a)(vii), Schedule          
2.3(a)(xi) (other than Attachment 2.3(a)(xi)-c), Schedule 2.6, Schedule 8.3     
and Schedule 14.4 to the Agreement hereby are amended so as to read in their    
entirety as set forth in Exhibit C hereto.                                      

SECTION 17. The Disclosure Schedule hereby is amended further by deleting   
therefrom Sections 5.6, 5.7(b), 5.8(b), 5.9, 5.11(a), (b), (c) and (d),         
5.14(a), the attachment 5.4(a)-A to Disclosure Schedule Section 5.4(a), the     
attachment 5.14(b)-A to Disclosure Schedule Section 5.14(b), and an attachment  
to Disclosure Schedule Section 5.10(a)-A, and adding thereto in lieu thereof    
the Disclosure Schedule Sections and attachments to Disclosure Schedule         
Sections in the forms attached hereto as Exhibit D.                             

SECTION 18. This Amendment is hereby made supplemental to and a part of the 
Agreement and, except as expressly amended by this Amendment, the Agreement is  
in all respects ratified and confirmed and all terms, conditions and            
provisions thereof shall remain in full force and effect.                       

SECTION 19. Capitalized terms contained herein and not otherwise defined    
herein shall have the respective meanings assigned to them in the Agreement.    

SECTION 20. This Amendment shall be governed by, and construed in accordance
with, the laws of the State of California (without giving effect to its choice  
of law principles).                                                             

SECTION 21. Any dispute, controversy or claim between the parties relating  
to, arising out of or in connection with this Amendment, including as to its    
existence, enforceability, validity, interpretation, performance, breach or     
damages, including claims in tort, shall be settled in accordance with the      
procedures set forth in Section 14.13 of the Agreement.                         

SECTION 22. This Amendment may be executed in one or more counterparts, and 
by the different parties hereto in separate counterparts, each of which when    
executed shall be deemed to be an original but all of which taken together      
shall constitute one and the same agreement. The signature page of any          
counterpart may be removed therefrom and attached to any other counterpart to   
evidence execution thereof by all of the parties hereto without affecting the   
validity thereof.                                                               

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IN WITNESS WHEREOF, Seller, Buyer and Holding have caused this Amendment to 
be executed as of the date first written above by their respective officers     
thereunto duly authorized.                                                      

                            VARIAN ASSOCIATES, INC.,
                          a Delaware corporation

                              By     /s/ Robert A. Lemos
                                           -----------------------------------
                                         Robert A. Lemos
                                         Vice President, Finance and
                                         Chief Financial Officer

                          CPII ACQUISITION CORP.
                          a Delaware corporation

                              By    /s/ Al D. Wilunowski
                                           -----------------------------------
                                        Al D. Wilunowski
                                         Chief Executive Officer and
                                         President

                                     COMMUNICATIONS & POWER INDUSTRIES
                        HOLDING CORPORATION,
                          a Delaware corporation

                              By    /s/ Al D. Wilunowski
                                           -----------------------------------
                                        Al D. Wilunowski
                                         Chief Executive Officer and
                                         President

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Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘8-K’ Filing		Date		First		Last			Other Filings
		9/29/95		4		5			10-K
Filed on:		8/23/95							SC 13E4
For Period End:		8/11/95		1		3
		6/9/95		1					8-K
		9/30/94		5					10-K
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