EXHIBIT 10.30
EXECUTION COPY
ASSET TRANSFER
AGREEMENT
This Asset Transfer Agreement (this
" Agreement ") dated as of June 17, 2009, is entered
into by and between Zygo Corporation, a Delaware corporation
(“ Zygo ”), and Nanometrics Incorporated,
a Delaware corporation (“ Nano
”).
RECITALS
A. Zygo
has developed and is the owner of certain technology related to
interferometers (the “ Automated
Interferometers ”), including the "heads," the
control, monitoring and analysis software, and electronic control
systems, as well as the automation of the systems that use these
technologies.
B. Zygo
seeks to establish a relationship with Nano, and Nano intends to
establish a relationship with Zygo, pursuant to which Nano becomes
the exclusive provider of the product referred to by Zygo as the "
Unifire " and other Approved Systems (as defined
below) in the Approved Markets (as defined below) that incorporate
Heads (as defined below), subject to the terms and conditions
hereof, and in that certain Supply Agreement, dated as of the
Closing Date, by and between Zygo and Nano, attached hereto as
Exhibit D (the “ Supply Agreement
”).
AGREEMENT
In consideration of the foregoing
and the respective representations, warranties, covenants and
agreements contained in this Agreement and the Supply Agreement,
and other good and valuable consideration, the receipt and
sufficiency of which each of the parties hereby acknowledges, and
intending to be legally bound hereby, the parties agree as
follows:
ARTICLE I
PURCHASE OF ASSETS AND ASSUMPTION
OF LIABILITIES
1.1
Transfer of Assets . Upon and subject to the terms and
conditions of this Agreement, Zygo shall transfer, convey, assign
and deliver to Nano at the Closing, for the consideration specified
in Section 1.3 below, (a) all right, title and interest in, to and
under the Acquired Assets (which are listed on Schedule
A-1 hereto), and (b) subject to Section 4.6 hereof, all its
rights and obligations under the Assigned Contracts (which are
listed on Schedule A-2 hereto).
1.2
Assumption of Liabilities . Upon and subject to the terms
and conditions of this Agreement, Nano shall assume as of the
Closing and become responsible for the Assumed Liabilities (which
are listed on Schedule B
hereto).
1.3
Consideration . The consideration for the transfer of assets
is the execution of the Supply Agreement and this Agreement, and
the related covenants of Nano hereunder and thereunder.
1.4
The Closing .
(a) The
Closing shall take place at the offices of Fulbright &
Jaworski L.L.P. in New York, New York, commencing at 1:00 p.m.
local time on the Closing Date. All transactions at the Closing
shall be deemed to take place simultaneously, and no transaction
shall be deemed to have been completed and no documents or
certificates shall be deemed to have been delivered until all other
transactions are completed and all other documents and certificates
are delivered.
(b) At
the Closing:
(i) Zygo
shall execute and deliver to Nano a bill of sale in the form
attached hereto as Exhibit A (the “ Bill
of Sale ”), and such other instruments of conveyance
as Nano may reasonably request in order to (A) effect the sale,
transfer, conveyance and assignment to Nano of valid ownership of
the Acquired Assets, and (B) subject to Section 4.6 hereof, assign
to Nano all its rights and obligations under the Assigned
Contracts;
(ii) Zygo
shall deliver to Nano, or otherwise put Nano in possession and
control of, all of the Acquired Assets of a tangible
nature;
(iii) Nano
and Zygo shall execute and deliver to each other a cross-receipt
evidencing the transactions referred to above;
(iv) Nano
shall execute an instrument of assumption in substantially the form
attached hereto as Exhibit B
(the “ Assumption Agreement ”) to effect
the assumption of the Assumed Liabilities;
(v) Nano
and Zygo shall execute and deliver to each other the Supply
Agreement; and
(vi) Nano
and Zygo shall execute and deliver to each other the Sublease
Agreement.
(c) As
soon as practicable after the Closing, but in any event prior to
the shipment by Zygo to Nano of the Purchased Inventory or the Demo
Equipment, Nano shall execute and deliver to Zygo a security
agreement granting Zygo a first perfected security
interest
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in the Purchased Inventory and Demo
Equipment (as later defined), and a corresponding UCC-1 financing
statement, both in a form reasonably acceptable to Zygo, to ensure
Zygo’s receipt of the Purchased Inventory Purchase Price and
Demo Equipment Purchase Price or the return of such transferred
assets.
1.5
Sublease of Hillsboro Facility .
(a) At
Closing, Nano and Zygo shall enter into a sublease agreement (the "
Sublease Agreement ") pursuant to which Nano will
sublease from Zygo, and Zygo will sublease to Nano, Zygo's facility
located at 2925 N.W. Aloclek Drive, Suite # 100
Hillsboro, Oregon (the “ Oregon Facility
”), consisting of 6,410 square feet of space, through
December 31, 2012, for monthly rent in an amount equal to the
current base rent and any other charges otherwise payable by Zygo
under its existing lease of the Oregon Facility.
(b) As
of the Closing, Nano and Zygo agree as follows
(i) Zygo
hereby leases to Nano and Nano hereby leases from Zygo, for the
monthly rent equal to the amortization of the fixed assets
described in Section 2.15 of Exhibit C over the life of
the Sublease Agreement based on an interest rate of zero percent,
the Personal Property (as hereinafter defined) on the terms and
conditions of this Section 1.5(b). The term “ Personal
Property ” means certain improvements, furniture,
phone system and fixed assets described in Section 2.7 of
Exhibit C . This lease of Personal Property shall expire and
terminate at such time the Sublease Agreement shall expire or
earlier terminate. This lease of Personal Property and any
conveyance of Personal Property are made AS-IS, WHERE-IS, without
any warranty of merchantability of suitability for any particular
purpose, all rights waived by Nano.
(ii) Nano
shall maintain the Personal Property in its existing condition,
ordinary wear and tear excepted, at its sole cost and expense. Nano
shall bear the entire risk of loss or damage to the Personal
Property during the term of this lease, and Nano shall insure the
Personal Property at all times against risks of loss or damage by
fire, theft and such other risks as may be covered by the insurance
generally carried by Nano in respect of its personal property. All
insurance proceeds shall be payable to Nano, and Nano shall pay to
Zygo all insurance proceeds paid to Nano in respect of the Personal
Property. Nano may not remove the Personal Property from the Oregon
Facility without the consent of Zygo. Nano shall not grant any
security interest in the Personal Property or in any other manner
assign, pledge, hypothecate, mortgage, lease, sublease, encumber or
otherwise transfer the Personal Property or its interest in the
Personal Property.
(iii) Upon
termination of this lease of Personal Property, Nano shall return
the Personal Property to Zygo in the condition in which it was
leased to Nano, ordinary wear and tear excepted.
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1.6
Payment for Inventory .
(a) Nano
is purchasing the inventory described in Schedule A-1
(the “ Purchased Inventory ”) for
$2,014,000, subject to adjustment after Closing pursuant to Section
1.6(c) hereof (the “ Purchased Inventory Purchase
Price ”). Nano shall pay for the Purchased Inventory
in the manner described in this Section. Within ten (10) days after
the end of the month in which Nano receives payment on the sale by
Nano of each Automated Interferometer System that includes
Purchased Inventory, Nano shall pay to Zygo an amount equal to the
price paid to Nano by Nano's customer for such entire system
(adding back the dollar amount of any set-offs or other types of
credits, or reductions to the purchase price actually applied, for
amounts Nano may otherwise owe to such customer) but reducing such
by the cost of the Head included in the Automated Interferometer
System (which will be paid for in accordance with the Supply
Agreement), to be applied toward the Purchased Inventory Purchase
Price, until the total Purchased Inventory Purchase Price has been
paid in full, and thereafter to the Demo Equipment Purchase Price
(as defined below) until such amount has been paid in full. For
example, if Nano sells an Automated Interferometer System for
$1,200,000 that includes any Purchased Inventory, and the
outstanding balance of the Purchased Inventory Purchase Price
exceeds $1,200,000 at the time of such sale, then Nano shall pay to
Zygo the amount of $1,200,000 less the cost of the Head included in
such System (which will be paid for in accordance with the Supply
Agreement) within ten (10) days after the end of the month in which
Nano receives payment from Nano's customer, and such amount shall
be applied toward the outstanding balance of the Purchased
Inventory Purchase Price.
(b) Nano
hereby agrees that, from and after the Closing Date until such time
as the Purchased Inventory Purchase Price and the Demo Equipment
Purchase Price have been paid in full (or, in the case of
subsection (b)(v) below, until 30 days following the calendar
quarter during which the last of such outstanding amounts shall
have been paid in full):
(i) in
the production of any Automated Interferometer System, Nano shall
first utilize the Purchased Inventory prior to utilizing
alternatively available inventory
(ii) Nano
shall not use Purchased Inventory for any purpose other than the
production of such systems or in connection with providing warranty
service or other service with respect to Automated Interferometer
Systems sold by Zygo or by Nano;
(iii) Nano
shall sell the Automated Interferometer System for cash
consideration (including a check or money order) and shall set
pricing based on its standard practices for ordinary course
arms-length third party transactions (“ Standard
Prices ”);
(iv) Nano
shall make diligent efforts, consistent with its historical
practice, to collect payment for all sales of its Automated
Interferometer Systems as to which all or any portion of such
payment shall be paid to Zygo pursuant to the provisions of
Sections 1.6 and/or 1.7 hereof; and
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(v) No
later than 30 days following each calendar quarter, Nano will
provide Zygo with a statement of its sales of Automated
Interferometer Systems, certified by Nano’s Chief Financial
Officer. Upon reasonable notice, and at Zygo’s cost and
expense, Nano will permit Zygo and its representatives to audit
Nano’s books and records as they pertain to sales of
Automated Interferometer Systems; provided that if an audit reveals
discrepancy of greater than the lesser of (x) $50,000 or (y) five
(5) times aggregate dollar sales, then the cost and expense of such
audit shall be borne by Nano.
(c) No
later than fifteen (15) business days after the Closing Date, Zygo
shall perform a physical inventory on the Purchased Inventory in
accordance with generally accepted accounting principles applied
consistently with Zygo’s past practices. Nano, or their
respective representatives, shall observe the taking of the
inventory at its sole cost and expense. Disputes between Zygo and
Nano with respect to the merchandise inventory shall be resolved by
Zygo and Nano at the time the physical inventory is being taken.
The results of the inventory shall conclusively be deemed to be the
Purchased Inventory for purposes of this Agreement. As part of this
inventory, Zygo shall determine the book value of the Purchased
Inventory as of the Closing Date, in accordance with generally
accepted accounting principles applied consistently with
Zygo’s past practices. The determination of the book value of
the Purchased Inventory as of the Closing Date pursuant to this
Section 1.6(c), shall, for all purposes of this Agreement, be the
Purchased Inventory Purchase Price. All work sheets used in
determining the foregoing shall be signed by Zygo and Nano or their
respective representatives.
1.7
Payment for Demo Equipment . Nano is purchasing the Demo
equipment described in Schedule
A-1 (the “ Demo Equipment ”)
for $1,583,224.66, which the parties hereby agree is the net book
value (NBV) thereof as of the Closing Date (the “ Demo
Equipment Purchase Price ”). Nano shall pay for such
equipment in the manner described in this Section. After the
outstanding balance of the Purchased Inventory Purchase Price shall
have been reduced to zero pursuant to Section 1.6 of this
Agreement, then within ten (10) days after the end of the month in
which Nano receives payment on the sale by Nano of each Automated
Interferometer System, Nano shall pay to Zygo an amount equal to
the price paid to Nano by Nano's customer for such system, to be
applied toward the price of the Demo Equipment, until the Demo
Equipment Purchase Price shall have been paid in full. For example,
if, after the Purchased Inventory Purchase Price shall have been
reduced to zero pursuant to Section 1.6 of this Agreement,
Nano sells an Automated Interferometer System for $1,200,000 and
the outstanding balance of the Demo Equipment Purchase Price
exceeds $1,200,000 at the time of such sale, then Nano shall pay to
Zygo the amount of $1,200,000 within ten (10) days after the end of
the month in which Nano receives payment of $1,200,000 from Nano's
customer, and such $1,200,000 shall be applied toward the
outstanding balance of the Demo Equipment Purchase
Price.
1.8
[...*...] .
_________________________
* CERTAIN CONFIDENTIAL INFORMATION
CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE
SECURITIES EXCHANGE ACT OF 1934, AS AMENDED.
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1.9
Full Payment of Acquired Assets . Notwithstanding the
provisions of Sections 1.6 and 1.7 above or any other provision of
this Agreement, full payment by Nano to Zygo for the Purchased
Inventory Purchase Price and Demo Equipment Purchase Price shall be
completed (paid in full) no later than ten (10) business days after
the first anniversary of the Closing.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF
ZYGO
Zygo represents and warrants to Nano
that the statements contained in this Article II are true and
correct as of the date of this Agreement, except to the extent such
representations and warranties are specifically made as of a
particular date (in which case such representations and warranties
will be true and correct as of such date).
The Disclosure Schedule attached
hereto as Exhibit C is arranged in sections
and subsections corresponding to the numbered and lettered sections
and subsections contained in this Article II. The disclosures in
any section or subsection of the Disclosure Schedule will qualify
the corresponding section or subsection in this Article II and any
other sections or subsections to which their applicability is
reasonably apparent. For purposes of this Article II, the phrase
“to the knowledge of Zygo” or any phrase of similar
import shall be deemed to refer to the actual knowledge (without
independent inquiry or investigation) of the Key
Persons.
2.1
Organization, Qualification and Corporate Power . Zygo is a
corporation duly organized, validly existing and in corporate and
tax good standing under the laws of the State of Delaware and
has all requisite corporate power and authority to carry on the
Business and to own and use the properties owned and used by it in
the Business. Zygo is qualified to do business and is in corporate
and tax good standing in the state of Oregon.
2.2
Authorization of Transaction . Zygo has all requisite power
and authority to execute and deliver this Agreement and the
Ancillary Documents and to perform its obligations hereunder and
thereunder. The execution and delivery by Zygo of this Agreement
and the Ancillary Documents, the performance by Zygo of this
Agreement and the Ancillary Documents and the consummation by Zygo
of the transactions contemplated hereby and thereby have been duly
and validly authorized by all necessary corporate action on the
part of Zygo. Each of this Agreement and the Ancillary Documents
has been duly and validly executed and delivered by Zygo and
constitutes a valid and binding obligation of Zygo, enforceable
against Zygo in accordance with its terms, except as enforceability
may be limited by (a) applicable bankruptcy, insolvency,
reorganization, fraudulent transfer, moratorium or similar laws in
effect from time to time affecting creditors’ rights
generally, and (b) general principles of law or equity.
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2.3
Noncontravention. Neither the execution and delivery by Zygo
of this Agreement and the Ancillary Documents, nor the consummation
by Zygo of the transactions contemplated hereby or thereby, will
(a) conflict with or violate any provision of the Certificate of
Incorporation or by-laws of Zygo, (b) except for required
filings with the Securities and Exchange Commission, or other
public company filings, require on the part of Zygo any notice to
or filing with, or any permit, authorization, consent or approval
of, any Governmental Entity, (c) conflict with, result in a breach
of, constitute (with or without due notice or lapse of time or
both) a default under, result in the acceleration of obligations
under, create in any party the right to terminate, modify or
cancel, or require any notice, consent or waiver under, any
contract or instrument to which Zygo is a party or by which Zygo is
bound, or (d) result in the imposition of any Security
Interest upon any Acquired Assets, except, in all instances of (b),
(c) and (d) above, for (i) any conflict, breach, default,
acceleration, termination, modification or cancellation which would
not adversely affect the consummation of the transactions
contemplated hereby or (ii) any notice, consent or waiver the
absence of which would not adversely affect the consummation of the
transactions contemplated hereby.
2.4
Ownership and Condition of Acquired
Assets .
(a) Zygo
is the true and lawful owner, and has good title to, all of the
Acquired Assets, free and clear of all Security Interests. Upon
execution and delivery by Zygo to Nano of the instruments of
conveyance referred to above, Nano will receive the Acquired
Assets, free and clear of all Security Interests, except as
provided in Section 1.4(b)(iv) hereof.
(b) Each
tangible Acquired Asset listed on Schedule A-1 is free from
material defects, has been maintained in accordance with normal
industry practice, is in good operating condition and repair
(subject to normal wear and tear) and is suitable for the purposes
for which it presently is used.
(c)
Schedule A-1 lists individually all Acquired Assets which
are Demo Equipment, indicating the cost, accumulated book
depreciation (if any) and the net book value of each such fixed
asset as of the Closing Date.
2.5
Intellectual Property . None of the Acquired Assets
infringes, misappropriates or otherwise violates any patent,
copyright, mask work right, trademark right, trade dress right,
trade secret right, or other intellectual property right of any
Person. The use, sale, export and import of such Acquired Assets do
not infringe or misappropriate any intellectual property rights of
any Person. Zygo makes the representations and warranties in this
Section only as to the Acquired Assets that have not been modified
in any way after delivery to Nano hereunder where the modification
causes any claimed infringement.
2.6
Inventory . All inventory included in the Acquired Assets
consists of a quality and quantity usable and saleable in the
ordinary course of business, except for obsolete items and items of
below standard quality which are identified in Section 2.6 of
Exhibit C .
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2.7
Contracts . Zygo has delivered to Nano a complete and
accurate copy of each of the Assigned Contracts. With respect to
each Assigned Contract: (i) the agreement is legal, valid, binding
and enforceable and in full force and effect; (ii) subject to
obtaining the consent contemplated by Section 4.6 hereof, the
agreement is assignable by Zygo to Nano and will continue to be
legal, valid, binding and enforceable and in full force and effect
immediately following the Closing in accordance with the terms
thereof as in effect immediately prior to the Closing; and (iii)
neither Zygo nor, to the knowledge of Zygo, any other party, is in
material breach or violation of, or default under, any such
agreement, and no event has occurred, is pending or, to the
knowledge of Zygo, is threatened, which, after the giving of
notice, with lapse of time, or otherwise, would constitute a
material breach or default by Zygo or, to the knowledge of Zygo,
any other party under such agreement.
2.8
Litigation . There is no Legal Proceeding which is pending
or, to Zygo’s knowledge, has been threatened against Zygo
related to the Business or the Acquired Assets. There are no
judgments, orders or decrees outstanding against Zygo related to
the Business or the Acquired Assets.
2.9
Warranties . No product or service manufactured, sold,
leased, licensed or delivered by Zygo, the obligation of which is
being assumed by Nano, in connection with the Business is subject
to any guaranty, warranty, right of return, right of credit or
other indemnity other than (i) the applicable standard terms
and conditions of sale or lease of Zygo, which are set forth in the
Assigned Contracts, and (ii) manufacturers’ warranties
for which Zygo has no liability.
2.10
Employees . Section 2.10 of Exhibit C contains
a list of all employees (and their status of citizenship) of Zygo
whose services relate primarily to the Business. To the knowledge
of Zygo, no employee or group of employees listed on Schedule 4.4
hereto has informed Zygo that such employee(s) plan not to accept
employment with Nano if so offered by Nano. Zygo is not a party to
or bound by any collective bargaining agreement, and has not
experienced any strikes, grievances, claims of unfair labor
practices or other collective bargaining disputes that relate to
the Acquired Assets or the employees of Zygo listed on Schedule 4.4
hereto. Zygo has no knowledge of any organizational effort made or
threatened, either currently or within the past two years, by or on
behalf of any labor union with respect to the employees of Zygo
listed on Schedule 4.4 hereto.
2.11
Legal Compliance . Zygo is currently conducting, and has at
all times in the past two years conducted, the Business in
compliance with each applicable law (including rules and
regulations thereunder) of any federal, state, local or foreign
government, or any Governmental Entity, except for any violations
or defaults that, individually or in the aggregate, have not had
and would not reasonably be expected to be materially adverse to
the Business as a whole. To Zygo’s knowledge, it has not
received any notice or communication from any Governmental Entity
alleging noncompliance with any applicable law, rule or regulation
related to the Business.
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2.12
Customers and Suppliers . Section 2.12 of Exhibit
C sets forth a list of each supplier that is the sole
supplier of any significant product or service to Zygo related to
the Business. Section 2.12 also sets forth a list of each customer
of the Business, and each party with whom Zygo has engaged over the
past twelve months as a prospective customer of the Business,
including a summary description of the status of such engagement.
To Zygo’s knowledge, no such customer or supplier has
indicated within the past year that it will stop, or decrease the
rate of, buying products or supplying products, as applicable, to
Zygo. No purchase order or commitment of Zygo which is an Assigned
Contract was in excess of normal requirements at the time entered
into.
2.13
Permits . To Zygo’s knowledge, there are no material
permits, licenses, rights, registrations or other authorizations
(collectively, “ Permits ”) required in
connection with Zygo’s conduct of the Business.
Notwithstanding the foregoing, Nano’s sole recourse with
respect to a breach of this representation shall be fulfillment of
Zygo’s obligations under Section 4.12 hereof.
2.14
Brokers’ Fees . Zygo has no liability or obligation to
pay any fees or commissions to any broker, finder or agent with
respect to the transactions contemplated by this
Agreement.
2.15
Fixed Assets . Section 2.15 of Exhibit C
sets forth a list or description of all fixed assets located in the
Oregon Facility that are the subject of the Sublease Agreement.
There are no liens on such fixed assets, other than customary
landlord’s liens.
2.16
Lease for the Oregon Facility . Attached as
Section 2.16 of Exhibit C is a true and correct
copy of Zygo's lease of the Oregon Facility (the "
Lease "). Zygo has paid all amounts due to date under
the Lease and has performed all obligations of Zygo required to
date under the Lease.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
NANO
Nano represents and warrants to Zygo
that the statements contained in this Article III are true and
correct as of the date of this Agreement.
3.1
Organization and Corporate Power . Nano is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware. Nano has all requisite corporate
power and authority to carry on the businesses in which it is
engaged and to own and use the properties owned and used by
it.
3.2
Authorization of the Transaction . Nano has all requisite
power and authority to execute and deliver this Agreement and the
Ancillary Documents and to perform its obligations hereunder and
thereunder. The execution and delivery by Nano of this Agreement
and the
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Ancillary Documents and the
consummation by Nano of the transactions contemplated hereby and
thereby have been duly and validly authorized by all necessary
corporate action on the part of Nano. This Agreement has been duly
and validly executed and delivered by Nano and constitutes a valid
and binding obligation of Nano, enforceable against it in
accordance with its terms, except as enforceability may be limited
by (a) applicable bankruptcy, insolvency, reorganization,
fraudulent transfer, moratorium or similar laws in effect from time
to time affecting creditors’ rights generally, and (b)
general principles of law or equity.
3.3
Noncontravention . Neither the execution and delivery by
Nano of this Agreement or the Ancillary Documents, nor the
consummation by Nano of the transactions contemplated hereby or
thereby, will (a) conflict with or violate any provision of the
Certificate of Incorporation or by-laws of Nano, (b) except for
required filings with the Securities and Exchange Commission, or
other public company filings, require on the part of Nano any
filing with, or permit, authorization, consent or approval of, any
Governmental Entity, (c) conflict with, result in breach of,
constitute (with or without due notice or lapse of time or both) a
default under, result in the acceleration of obligations under,
create in any party any right to terminate, modify or cancel, or
require any notice, consent or waiver under, any contract or
instrument to which Nano is a party or by which it is bound or to
which any of its assets is subject, except for (i) any conflict,
breach, default, acceleration, termination, modification or
cancellation which would not adversely affect the consummation of
the transactions contemplated hereby or (ii) any notice, consent or
waiver the absence of which would not adversely affect the
consummation of the transactions contemplated hereby, or (d)
violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Nano or any of its properties or
assets.
3.4
Use of Technology . In addition to selling the Zygo Unifire
system, Nano is entering into this Agreement and the Supply
Agreement with the current intention of using commercially
reasonable efforts to market and sell all four types of systems
enumerated as clauses (a) through (d) in the definition of
"Approved Systems."
3.5
Viability . To Nano's knowledge, it has sufficient
resources, financial and otherwise, to satisfy each of its
obligations hereunder and under the Supply Agreement as each comes
due.
ARTICLE IV
COVENANTS
4.1
Proprietary Information . From and after the Closing,
neither Party shall disclose or make use of (except to pursue its
rights under this Agreement or the Ancillary Documents), and each
Party shall use its best efforts to cause all of its Affiliates or
other advisors or representatives not to disc
