EXECUTION COPY
SECOND AMENDMENT TO ASSET
PURCHASE AGREEMENT
THIS SECOND AMENDMENT TO ASSET PURCHASE
AGREEMENT (this “
Amendment ”) is made and entered into as of
June 21, 2011, and amends that certain Asset Purchase Agreement,
dated as of March 19, 2010 as amended in April 2010 (the “
Amended Agreement ”), by and among Tegal
Corporation, a Delaware corporation (“ Tegal ”),
Sputtered Films, Inc., a California corporation and a wholly-owned
subsidiary of Tegal (“ SFI ” and together with
Tegal, “ Sellers ”), OEM Group Inc., an Arizona
corporation (“ OEM Group ”), and OEG-TEG, LLC,
an Arizona limited liability company (“ Purchaser
”) (each Seller, OEM Group and Purchaser, a “
Party ” and collectively, the “ Parties
”). All capitalized terms which are used but not
otherwise defined herein shall have the meanings specified to such
terms in the Original Agreement.
RECITALS:
WHEREAS , Sellers, OEM Group and Purchaser are parties
to the Amended Agreement, as amended;
WHEREAS , pursuant to Section 9.4 of the Amended
Agreement, the Parties may amend the Amended Agreement by a writing
signed by each of the Parties; and
WHEREAS , the Parties desire to amend the Amended
Agreement as set forth below.
NOW, THEREFORE
, in consideration of the premises
and of the mutual covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Parties, intending to be
legally bound, hereby agree as follows:
1.1
2.2.3(a) Contingent Payment Amount . Sub-section
(a) of Section 2.2.3 of the Amended Agreement is amended and
restated in its entirety as follows:
(a) Purchaser
shall pay to Tegal, by wire transfer of immediately available funds
in two installments payable on July 1, 2011 (the “ First
Installment ”) and October 1, 2011 (the “ Second
Installment ”), respectively (subject to applicable
extensions as set forth in Section 2.2.3(c) below), an additional
amount according to the following schedule (the “
Contingent Payment ”) in the event that Applicable
Bookings equal or exceed $6,000,000:
(i) if
Applicable Bookings are greater than or equal to $6,000,000 but
less than $8,000,000, the Contingent Payment shall equal five
percent of the Applicable Bookings in excess of
$6,000,000;
(ii) if
Applicable Bookings are greater than or equal to $8,000,000 but
less than $10,000,000, the Contingent Payment shall equal $100,000
plus ten percent of the Applicable Bookings in excess of
$8,000,000;
(iii) if
Applicable Bookings are greater than or equal to $10,000,000 but
less than $12,000,000, the Contingent Payment shall equal $300,000
plus fifteen percent of the Applicable Bookings in excess of
$10,000,000;
EXECUTION COPY
(iv) if
Applicable Bookings are greater than or equal to $12,000,000, the
Contingent Payment shall equal $600,000 plus twenty percent
of the Applicable Bookings in excess of $12,000,000; provided,
however, that the Contingent Payment shall in no event exceed
One Million Dollars ($1,000,000).
The amount payable in the First
Installment shall be equal to the greater of: (a) one half of the
Contingent Payment, calculated in accordance with Sections
2.2.3(a)(i) t
