Exhibit 10.4
EXECUTION COPY
AMENDMENT NO. 1 TO ASSET
PURCHASE AGREEMENT
This AMENDMENT NO. 1 TO ASSET
PURCHASE AGREEMENT (this “ Agreement ”)
is entered into as of this 6th day of April, 2009, by and among
Nanometrics- Israel Ltd. (“ Nanometrics
”) and Tevet Process Control Technologies Ltd. (“
Seller ,” together with Nanometrics, the
“ Parties ”). Capitalized terms used in
this Agreement and not otherwise defined herein shall have the
meaning given to such terms in the Asset Purchase Agreement (as
defined below).
RECITALS
WHEREAS, pursuant to the Asset
Purchase Agreement by and between Nanometrics and Seller, dated as
of May 7, 2008 (the “ Asset Purchase
Agreement ”), Seller sold certain of its assets to
Nanometrics in accordance with the terms and conditions set forth
therein;
WHEREAS, pursuant to
Section 11.02 of the Asset Purchase Agreement,
Nanometrics and Seller may amend the Asset Purchase Agreement by a
written agreement executed by Nanometrics and Seller, and
Nanometrics and Seller wish to amend the Asset Purchase Agreement
to amend each of Nanometrics’ and Seller’s remedies
thereunder, as set forth herein;
WHEREAS, in connection with the
Asset Purchase Agreement, the Parties and ESOP Management and Trust
Services Ltd. (the “ Escrow Agent ”)
entered into the Escrow Agreement, dated as of May 19, 2008
(the “ Escrow Agreement ”), pursuant to
which a portion of the purchase price payable to Nanometrics under
the Asset Purchase Agreement was deposited with the Escrow Agent,
which amount was to be held in escrow and released by the Escrow
Agent in accordance with the terms and conditions set forth in the
Escrow Agreement; and
WHEREAS, in connection with the
execution and delivery of this Agreement by the Parties, the
Parties and the Escrow Agent have entered into a Termination
Agreement, of even date herewith (the “ Termination
Agreement ”), which agreement amends the Escrow
Agreement, terminates the escrow established thereunder and
provides for the disbursement of the escrow funds.
NOW THEREFORE, in consideration of
the premises and the mutual obligations and covenants set forth
herein, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the Parties
hereto, intending to be legally bound, agree as follows:
AGREEMENT
1. Acknowledgement of the
Parties . As of the date hereof, each of Nanometrics and
Seller confirms and acknowledges that neither it nor any of its
respective subsidiaries, officers, directors, employees or
shareholders has asserted a demand for indemnification, a Third
Party Claim or a Direct Claim under the applicable provision of
Article IX of the Asset Purchase Agreement.
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2. Amendment of the Asset
Purchase Agreement . Nanometrics and Seller further agree
that, effective as of the date hereof:
(a) Section 9.05 of the
Asset Purchase Agreement is modified to include the following
provision:
“Except with respect to fraud,
willful misrepresentation, willful misconduct or willful
concealment by or on behalf of the Buyer and except for injunctive
relief that may be obtained to enjoin the breach, or threatened
breach, of any provision of this Agreement or a Claim for specific
performance, Seller’s and each Seller Indemnitee’s
right to indemnification under this Article IX constitutes
Seller’s or such Seller Indemnitee’s sole and exclusive
remedy with respect to any inaccuracy in, or any breach of, any
representation or warranty or any covenant or agreement of Buyer in
this Agreement or in any certificate, instrument, document or
agreement delivered by or on behalf of Buyer pursuant to or in
connection with this Agreement or any failure by Buyer to perform
any covenant, agreement, obligation or undertaking in this
Agreement or any such certificate, instrument, document or
agreement. “ Seller Indemnitee ” shall mean any
subsidiaries, officers, directors, employees, and shareholders of
Seller.”
(b) Section 9.04 of the
Asset Purchase Agreement is amended, superseded and replaced in its
entirety to provide as follows:
“SECTION 9.04 Termination
of Indemnification . Except with respect to fraud, willful
misrepresentation, willful misconduct or willful concealment by or
on behalf of Seller: the representations and warranties set forth
in this Agreement shall terminate on March 31,
2009.”
3. Release of Seller’s
Bank Guarantee . Nanometrics hereby agrees to take
commercially reasonable actions to (i) provide Industrial
Buildings Corporation Ltd. (“ IBC ”) with
a deposit of approximately NIS 375,000 on or before April 19,
2009, and (ii) facilitate IBC’s release to Seller of the
Bank Guarantee issued by Leumi Bank Israel on July 29, 2004
towards IBC in accordance with the provisions of the lease
agreement signed on July 26, 2004 by and between Seller and
IBC.
4. Release and Waiver
.
(a) Nanometrics on behalf of itself
and its directors, officers, employees, successors, affiliates,
heirs, assigns, agents, representatives, insurers and attorneys,
(for purposes of this Section 4(a) , each, the “
Releasor ”) hereby irrevocably, unconditionally
and completely releases, acquits and forever discharges Seller, its
direct and indirect subsidiaries and their respective past, present
and future shareholders, directors, officers and employees,
affiliates, successors, predecessors, heirs, assigns, and to the
fullest extent permitted by law, (for purposes of this
Section 4(a) , each a “ Releasee
”) from any and all past, present and future disputes,
claims, controversies, demands, rights, obligations, actions and
causes of action, liabilities, and damages, fixed or contingent,
suspected or claimed, which any of them ever had, now has, or
claims to have had, from the beginning of time up to the date
hereof, including without limitation, unknown, unsuspected or
undisclosed claims, any wri
