{"id":43280,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/asset-purchase-agreement-asyst-technologies-inc-asyst.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"asset-purchase-agreement-asyst-technologies-inc-asyst","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/asset-purchase-agreement-asyst-technologies-inc-asyst.html","title":{"rendered":"Asset Purchase Agreement &#8211; Asyst Technologies Inc., Asyst Automation Inc. and Palo Alto Technologies Inc."},"content":{"rendered":"<pre>\n                            ASSET PURCHASE AGREEMENT\n                         DATED AS OF SEPTEMBER 30, 1997\n\n                                  BY AND AMONG\n\n                            ASYST TECHNOLOGIES, INC\n                           A CALIFORNIA CORPORATION,\n\n                             ASYST AUTOMATION, INC\n                             A DELAWARE CORPORATION\n\n                                      AND\n\n                          PALO ALTO TECHNOLOGIES, INC\n                            A CALIFORNIA CORPORATION\n\n\n\n                   [*]=CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN \n                   OMITTED AND FILED SEPARATELY WITH THE COMMISSION. \n                   CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH \n                   RESPECT TO THE OMITTED PORTIONS.\n\n\n\n\n \n                               TABLE OF CONTENTS\n \n                                                                            PAGE\n \nSECTION 1.  SALE OF ASSETS..................................................  1\n \nSECTION 2.  CONSIDERATION FOR TRANSFER OF THE ASSETS........................  2\n      2.1   Purchase Price..................................................  2\n      2.2   Earn-Out Payments...............................................  2\n      2.3   Audit...........................................................  2\n      2.4   Conversion......................................................  2\n      2.5   License Back....................................................  3\n      2.6   Distribution....................................................  3\n \nSECTION 3.  THE CLOSING.....................................................  3\n      3.1   The Closing.....................................................  3\n      3.2   Documents to be Delivered at Closing............................  3\n      3.3   Use of Assets...................................................  4\n \nSECTION 4.  REPRESENTATIONS AND WARRANTIES OF SELLERS.......................  4\n      4.1   Organization; Power; Good Standing..............................  4\n      4.2   Authority, Approval and Enforceability..........................  4\n      4.3   No Conflict.....................................................  4\n      4.4   No Consent Required.............................................  5\n      4.5   Title to Assets.................................................  5\n \nSECTION 5.  REPRESENTATIONS AND WARRANTIES OF BUYER.........................  5\n      5.1   Organization; Power; Good Standing..............................  5\n      5.2   Authority, Approval and Enforceability..........................  5\n      5.3   No Conflict.....................................................  5\n      5.4   No Consent Required.............................................  6\n \nSECTION 6.  ADDITIONAL AGREEMENTS...........................................  6\n      6.1   Confidentiality.................................................  6\n      6.2   Payment of Expenses.............................................  6\n      6.3   Sales, Transfer and Use Taxes...................................  6\n      6.4   Information Relating to Taxes...................................  7\n      6.5   Employees.......................................................  7\n      6.6   Buyer's Advisors................................................  7\n      6.7   Further Assurances..............................................  7\n \nSECTION 7.  MISCELLANEOUS...................................................  7\n      7.1   Entire Agreement................................................  7\n      7.2   Amendment and Waiver............................................  7\n\n                                      i.\n\n\n\n                               TABLE OF CONTENTS\n                                  (CONTINUED)\n \n                                                                            PAGE\n\n      7.3   Delays or Omissions.............................................  7\n      7.4   Assignment:  Binding Upon Successors and Assigns................  8\n      7.5   Notices.........................................................  8\n      7.6   Survival of Representations and Warranties......................  9\n      7.7   Incorporation of Schedules and Exhibits.........................  9\n      7.8   Expenses........................................................  9\n      7.9   Captions........................................................  9\n      7.10  Severability....................................................  9\n      7.11  Governing Law...................................................  9\n      7.12  Counterparts....................................................  9\n      7.13  Attorneys' Fees.................................................  9\n\n                                      ii.\n\n\n \n                           ASSET PURCHASE AGREEMENT\n\n\n     THIS ASSET PURCHASE AGREEMENT (the \"Agreement\") is entered into as of\nSeptember 30, 1997, by and among ASYST TECHNOLOGIES, INC., a California\ncorporation and ASYST AUTOMATION, INC., a Delaware corporation (collectively,\nthe \"Sellers\") and PALO ALTO TECHNOLOGIES, INC., a California corporation (the\n\"Buyer\").\n\n                                    RECITALS\n\n     WHEREAS, Sellers have been engaged in the business of developing and\nmarketing automation products for use in semiconductor manufacturing and has\nannounced its intention to withdraw from such business (the \"Business\");\n\n     WHEREAS, Sellers have in the course of operating the Business developed\npreliminary product designs and prototypes for products related to the\nautomation of semiconductor manufacturing that have not been marketed and\nSellers own certain equipment useful in this product development that it will\nnot need to meet its remaining customer obligations associated with the\nBusiness; and\n\n     WHEREAS, Buyer desires to purchase from Sellers and Sellers desire to sell\nto Buyer, such software, designs, prototypes and equipment, together with\nSellers' intellectual property rights pertaining thereto all as described in\nExhibit A hereto (collectively, the \"Assets\") on the terms and subject to the\nconditions hereinafter set forth.\n\n                                   AGREEMENT\n\n     NOW, THEREFORE, in consideration of the foregoing recitals and the mutual\npromises, representations, warranties, covenants and agreements hereinafter set\nforth, and intending to be legally bound, the parties hereto hereby agree as\nfollows:\n\nSECTION 1.  SALE OF ASSETS.  Upon the terms and subject to the conditions set\nforth in this Agreement, on the Closing Date (as defined below), Sellers shall\nsell, convey, assign, grant, transfer and deliver to Buyer, and Buyer shall\npurchase, acquire and receive from Sellers the Assets, free and clear of all\nliens, mortgages, pledges, security interests, restrictions, prior assignments,\nencumbrances and claims of every kind, nature or character (\"Liens\").\n\n     The parties acknowledge that Sellers' rights under the Software License\nAgreement (the \"License Agreement\") among Asyst Automation, Inc., Toshiba\nMechatronics Co., Ltd. (\"Toshiba\") and Mitsui &amp; Co., Ltd. (relating to the MCS\nsoftware) are intended to be included in the Assets but that the License\nAgreement may only be assigned by Sellers to Buyer with the consent of Toshiba.\nSellers will use commercially reasonable efforts to obtain such consent.\nNotwithstanding any such assignment, Sellers shall remain responsible to pay\nToshiba the installment payments set forth in Section 5.1 of the License\nAgreement and Buyer shall be liable\n\n                                      1.\n\n\n \nfor royalties payable under Section 5.2 of the License Agreement for software\nsold by Buyer.  Sellers shall have no further liability to Buyer pursuant to the\nLicense Agreement.\n\n     Any intellectual property relating to the Field (as defined below) which is\ndeveloped by Sellers' employees whose principal work related to the Field\nincluding Mihir Parikh and Anthony Bonora on or before December 31, 1997, shall\nbe deemed to be included within the Assets and to be the property of Buyer.\n\nSECTION 2.  CONSIDERATION FOR TRANSFER OF THE ASSETS\n\n     2.1  PURCHASE PRICE.  Subject to the terms and conditions of these\nAgreement, in consideration of the transfer of the Assets, Buyer shall pay to\nSellers the \"Earn-Out Payments\" (as defined below) up to an aggregate of\n$2,000,000.\n\n     Notwithstanding anything else in this Agreement to the contrary, except as\nspecifically set forth in Section 1, Buyer shall not assume, pay, perform, or\ndischarge, and Sellers shall solely retain, pay, perform and discharge, all\nobligations and liabilities of Sellers relating to the Business, whether\ndisclosed, undisclosed, direct, indirect, fixed or contingent, known or unknown,\nincurred in the ordinary course of business or otherwise.\n\n     2.2  Earn-Out Payments.  Subject to the terms and conditions of this\nAgreement, in consideration of the transfer of the Assets, Buyer shall pay to\nSellers Earn-Out Payments equal to 4.0% of the Gross Revenue of Buyer.  The\nGross Revenue of Buyer means the Buyer's actual revenue from all sources\nrelating to transport systems and transfer (conveyor to tool loadport and\/or\nstocker) systems in connection with manufacturing automation (the \"Field\") less\nfreight, sales tax and insurance, and shall be determined using Generally\nAccepted Accounting Principles.  The Earn-Out Payments shall be paid quarterly\nwithin forty-five (45) days following the end of each quarter (the \"Payment\nDate\").  On each Payment Date, Buyer shall deliver to Sellers a statement\nsetting forth in reasonable detail the Gross Revenue of Buyer and the Earn-Out\nPayments.\n\n     2.3  AUDIT.  For six (6) months following the payment of the final Earn-Out\nPayment, Sellers shall have reasonable access to the financial books and records\nof Buyer and Buyer's successor-in-interest of the Business for the purpose of\nauditing the Earn-Out Payments, subject to reasonable confidentiality\nrestrictions.  If the audit results in any additional payments to Sellers in\nexcess of ten thousand dollars ($10,000) (the \"Minimum Earn-Out Discrepancy\"),\nthen Buyer shall be liable for the fees and expenses of the auditor.  If the\naudit results in no additional payments to Sellers or payments below the Minimum\nEarn-Out Discrepancy, then Sellers shall be liable for the auditor's fees and\nexpenses.  Buyer shall make any additional payments to the Sellers within twenty\n(20) days after the completion of the audit.  The auditor shall be a national\naccounting firm satisfactory to the Sellers and Buyer.\n\n     2.4  CONVERSION.  The right to receive Earn-Out Payments pursuant to\nSection 2.1 may be converted, at the option of Sellers, into shares of Buyer's\nsecurities sold at the closing of an equity financing for Buyer in which the\naggregate gross proceeds raised by Buyer (including any\n\n                                      2.\n\n\n \nprevious sales of Buyer's equity) is at least $3,000,000; provided, however that\nif such conversion would cause Sellers to own more than 9.5% of the outstanding,\nvoting stock of Buyer, then only such amount of Earn-Out Payments that would\nconvert into 9.5% of the outstanding voting stock of the Company may be\nconverted and the remaining Earn-Out Payments shall remain available for\nconversion at the option of Sellers in any subsequent financing.  The number of\nshares issuable to Sellers upon conversion of the Earn-Out Payments in\nconnection with any financing shall be equal to the principal amount of Earn-Out\nPayments that is being converted divided by the price per share at which Buyer\nsells its equity securities in such financing.  Sellers shall not have the right\nto convert Earn-Out Payments which have been paid by Buyer pursuant to Section\n2.2, and the amount of any such payments shall be deducted from the balance\navailable for conversion hereunder.\n\n     2.5  LICENSE BACK.  The parties acknowledge that Sellers' products may\ncontain intellectual property sold to Buyer pursuant to this Agreement,\naccordingly, Buyer grants to Sellers the worldwide, non-exclusive, royalty-free,\nfully-paid and perpetual right and license, with the right of sublicense, in and\nto the intellectual property included within the Assets to use, sell,\ndistribute, reproduce, modify, make and have made, any of the Sellers' current\nproducts in the Field and any of Sellers' current and future products outside\nthe Field.  The limitations on such license in this Section 2.5 with respect to\nthe Field shall expire on May 15, 2002.\n\n     2.6  DISTRIBUTION.    Buyer hereby grants Sellers the non-exclusive,\nworldwide right and license to distribute and sell any of Buyer's products on\nterms and conditions mutually acceptable to Buyer and Sellers which are no less\nfavorable than the most favorable terms granted to other distributors of Buyer,\nprovided that Buyer may grant exclusive distribution rights to third parties in\nparticular markets if such exclusive distribution rights are first offered to\nSellers on the same terms and conditions as later offered to such third party\nand Sellers do not accept the offer; provided, however, that Sellers have or are\nreasonably expected to have the capability of performing such exclusive\ndistribution function in such particular markets in a reasonably comparable\nmanner to such third party.  This Section 2.6 shall terminate on the earlier of\n(i) the fifth anniversary of this Agreement or (ii) if Sellers offer for sale\ntheir own products relating to the automation of semiconductor manufacturing\nwhich compete directly with Buyer's products.\n\nSECTION 3.  THE CLOSING.\n\n     3.1  THE CLOSING.  The closing of the transactions contemplated hereby (the\n\"Closing\") shall be held at the offices of Cooley Godward LLP, Five Palo Alto\nSquare, 3000 El Camino Real, Palo Alto, California at 10:00 a.m. Pacific Time on\nSeptember 30, 1997 or such other place, time and date as Buyer and Sellers may\nmutually select.  The time and date on which the Closing is actually held is\nreferred to herein as the \"Closing Date.\"\n\n     3.2  DOCUMENTS TO BE DELIVERED AT CLOSING.  On the Closing Date, subject to\nthe terms and conditions of this Agreement, Sellers shall deliver to Buyer such\nbills of sale, assignments, endorsements and other recordable instruments of\nassignment, transfer and conveyance, in form and substance reasonably\nsatisfactory to Buyer and its counsel, as shall be\n\n                                      3.\n\n\n \neffective to vest in Buyer all of the right, title and interest of Sellers in\nand to the Assets free and clear of all Liens.\n\n     3.3  USE OF ASSETS.  Following the Closing, Sellers shall be entitled to\nuse the Assets as necessary for the wind-up of Asyst Automation, Inc.  In such\ncase, the physical transfer of such Assets shall occur on a date to be agreed by\nthe parties, but no later that September 30, 1997, and Sellers shall insure the\nAssets for the benefit of Buyer until such transfer.\n\nSECTION 4.  REPRESENTATIONS AND WARRANTIES OF SELLERS.\n\n     Except as set forth on the Schedule of Exceptions, Sellers hereby represent\nand warrant to Buyer as follows:\n\n     4.1  ORGANIZATION; POWER; GOOD STANDING.  Asyst Technologies, Inc. is a\ncorporation duly organized, validly existing and in good standing under the laws\nof the State of California, Asyst Automation, Inc. is a corporation duly\norganized, validly existing and in good standing under the laws of the State of\nDelaware, each of the Sellers has all requisite corporate power and authority to\nown, operate and lease its properties and to carry on its business as now\nconducted and is qualified to do business and is in good standing as a foreign\ncorporation in each jurisdiction in which the failure so to qualify could have a\nmaterial adverse effect on Sellers, taken as a whole, or the Assets.\n\n     4.2  AUTHORITY, APPROVAL AND ENFORCEABILITY.\n\n          (a) Each of the Sellers has full corporate power and authority to\nexecute, deliver and perform its obligations under this Agreement and all\nagreements, instruments and documents contemplated hereby, and all corporate\naction of Sellers necessary for such execution delivery and performance has been\nduly taken.\n\n          (b) This Agreement is a legal, valid and binding obligation of\nSellers, and, upon due execution and delivery by the parties thereto, all\nagreements, instruments and documents to be executed by Sellers in connection\nwith the transactions contemplated hereby will be legal, valid and binding\nobligations of Sellers, each enforceable against Sellers in accordance with\ntheir respective terms, except as enforcement may be limited by applicable\nbankruptcy, insolvency, reorganization, moratorium or similar laws affecting\ncreditors' rights generally, and subject to general equity principles and to\nlimitations on availability of equitable relief, including specific performance.\n\n     4.3  NO CONFLICT.  The execution and delivery by Sellers of this Agreement\nand any other agreements, instruments and documents to be executed and delivered\nby Sellers pursuant hereto do not, and the performance and consummation by\nSellers of the transactions contemplated hereby and thereby will not, conflict\nwith or result in any breach or violation of or default, termination, forfeiture\nor lien under (or upon the failure to give notice or the lapse of time, or both,\nresult in any conflict with, breach or violation of or default, termination,\nforfeiture or lien under) any terms or provisions of Sellers' charter documents,\neach as amended,\n\n                                      4.\n\n\n \nor any statute, rule, regulation, judicial or governmental decree, order or\njudgment, to which Sellers is a party or to which Sellers or the Assets are\nsubject.\n\n     4.4  NO CONSENT REQUIRED.  No consent, authorization, approval, order,\nlicense, certificate or permit or act of or from, or declaration or filing with,\nany foreign, federal, state, local or other governmental authority or regulatory\nbody or any court or other tribunal to which Sellers or the Assets are subject\nis required for the execution, delivery or performance by Sellers of this\nAgreement or any of the other agreements, instruments and documents being or to\nbe executed and delivered hereunder or in connection herewith or for the\nconsummation of the transactions contemplated hereby or thereby.\n\n     4.5  TITLE TO ASSETS.  Sellers have good and marketable title to the\nAssets, free and clear of all Liens.  Upon delivery by Sellers to Buyer of the\nAssets at Closing, Buyer will acquire good and marketable title to the Assets\nfree and clear of all Liens.\n\nSECTION 5.  REPRESENTATIONS AND WARRANTIES OF BUYER.\n\n     As a material inducement to Sellers to enter into this Agreement, Buyer\nrepresents and warrants to Sellers as follows:\n\n     5.1  ORGANIZATION; POWER; GOOD STANDING.  Buyer is a company duly\norganized, validly existing and in good standing under the laws of the State of\nCalifornia, has all requisite corporate power and authority to own, operate and\nlease its properties and to carry on its business as now conducted and is\nqualified to do business and is in good standing as a foreign corporation in\neach jurisdiction in which the failure so to qualify could have a material\nadverse effect on the business, assets, operations or financial condition of\nBuyer.\n\n     5.2  AUTHORITY, APPROVAL AND ENFORCEABILITY.\n\n          (a) Buyer has full corporate power and authority to execute, deliver\nand perform its obligations under this Agreement and all agreements, instruments\nand documents contemplated hereby, and all corporate action of Buyer necessary\nfor such execution, delivery and performance has been duly taken.\n\n          (b) This Agreement is a legal, valid and binding obligation of Buyer,\nand, upon due execution and delivery by the parties thereto, all agreements,\ninstruments and documents to be executed by Buyer in connection with the\ntransactions contemplated hereby will be legal, valid and binding obligations of\nBuyer, each enforceable against Buyer in accordance with its respective terms,\nexcept as enforcement may be limited by applicable bankruptcy, insolvency,\nreorganization, moratorium or similar laws affecting creditors' rights\ngenerally, and subject to general equity principles and to limitations on\navailability of equitable relief, including specific performance.\n\n     5.3  NO CONFLICT.  The execution and delivery by Buyer of this Agreement\nand any other agreements, instruments and documents to be executed and delivered\nby Buyer pursuant\n\n\n                                      5.\n\n\n \nhereto do not, and the performance and consummation by Buyer of the transactions\ncontemplated hereby and thereby will not, conflict with or result in any breach\nor violation of or default, termination, forfeiture or lien under (or upon the\nfailure to give notice or the lapse of time, or both, result in any conflict\nwith, breach or violation of or default, termination, forfeiture or lien under)\nany terms or provisions of Buyer's charter documents, each as amended, or any\nstatute, rule, regulation, judicial or governmental decree, order or judgment,\nagreement, lease or other instrument to which Buyer is a party or to which Buyer\nor its assets are subject that has or is likely to have a material adverse\neffect on the business, assets, operations or financial condition of Buyer.\n\n     5.4  NO CONSENT REQUIRED.  No consent, authorization, approval, order,\nlicense, certificate or permit or act of or from, or declaration or filing with,\nany foreign, federal, state, local or other governmental authority or regulatory\nbody or any court or other tribunal or any party to any contract, agreement,\ninstrument, lease or license to which Buyer is a party or to which Buyer or its\nassets are subject that has or is likely to have a material adverse effect on\nthe business, assets, operations or financial condition of Buyer, is required\nfor the execution, delivery or performance by Buyer of this Agreement or any of\nthe other agreements, instruments and documents being or to be executed and\ndelivered hereunder or in connection herewith or for the consummation of the\ntransactions contemplated hereby.\n\nSECTION 6.  ADDITIONAL AGREEMENTS.\n\n     6.1  CONFIDENTIALITY.  For a period of three years from the date of this\nAgreement, each party hereto shall hold in confidence and use its best efforts\nto have all of their respective employees, agents, representatives and\naffiliated companies hold in confidence all documents and other written material\ncontaining information of a confidential nature belonging to the other party\n(including, but not limited to, the intellectual property rights contained in\nthe Assets), and, except as contemplated by this Agreement, shall not disclose,\npublish, use or permit others to use the same; provided, however, that the\nforegoing restriction shall not apply to any portion of the foregoing which:\n(i) becomes generally available to the public in any manner or form through no\nfault of either party, or their respective employees, agents or representatives;\n(ii) is released for disclosure by one party with the other party's consent or\n(iii) when such disclosure is required by a court or a governmental agency or is\notherwise required by law or is necessary in order to establish rights under\nthis Agreement or any other agreements referred to herein.\n\n     6.2  PAYMENT OF EXPENSES.  Whether or not the transactions contemplated by\nthis Agreement are consummated and, except as otherwise may be expressly\nprovided herein, each party shall pay its own fees, expenses and disbursements\nand those of its respective agents, representatives, consultants, accountants\nand counsel incurred in connection with this Agreement and all other costs and\nexpenses incurred in the performance and compliance with all conditions to be\nperformed by such party under this Agreement.\n\n     6.3  SALES, TRANSFER AND USE TAXES.  Sellers shall pay all sales, transfer\nand use taxes arising out of the transfer of the Assets.\n\n                                      6.\n\n\n \n     6.4  INFORMATION RELATING TO TAXES.  Sellers shall furnish to Buyer from\ntime to time after the Closing Date any information reasonably requested by\nBuyer which is in the possession of or reasonably available to Sellers to permit\nBuyer: (i) to file on a timely basis its federal income tax returns and its\nestimated federal income tax returns and any other tax returns which may be\nrequired by any federal, state, local or foreign tax authority, and (ii) to\ncomply with orders issued by any federal, state, local or foreign governmental\nauthority.\n\n     6.5  EMPLOYEES.  Buyer may hire any employee of Asyst Automation, Inc. or\nany employee of Asyst Technologies, Inc. whose principal work relates to the\nField, however, such hired employees must give Sellers three months written\nnotice of the termination of their employment with Sellers.\n\n     6.6  BUYER'S ADVISORS.  It is understood that Mihir Parikh and Anthony\nBonora will serve as advisors to or directors of Buyer while continuing to serve\nas employees and officers of Sellers.  The parties agree that any intellectual\nproperty relating to the Field developed by Mihir Parikh and Anthony Bonora\nwhich is developed by either of them while in Sellers' employ shall nevertheless\nbe deemed to be the property of Buyer; provided, however, that if either Mihir\nParikh or Anthony Bonora use the laboratory or testing equipment of Sellers in\ndeveloping such intellectual property, then such intellectual property shall be\nthe property of Sellers pursuant to the Proprietary Information and Inventions\nAssignment Agreement or similar agreement between Sellers and Mihir Parikh or\nAnthony Bonora, respectively.\n\n     6.7  FURTHER ASSURANCES.  Sellers, at any time after the Closing, at the\nrequest of Buyer and at Buyer's sole expense, shall execute, acknowledge and\ndeliver any further assignments, conveyances and other assurances, documents and\ninstruments of transfer, and will take any other action consistent with the\nterms of this Agreement, that may reasonably be necessary for the purpose of\nassigning, granting and confirming to Buyer all Assets to be conveyed pursuant\nto this Agreement.\n\nSECTION 7.  MISCELLANEOUS.\n\n     7.1  ENTIRE AGREEMENT.  This Agreement, including the schedules and\nexhibits hereto, contains the entire understanding among the parties hereto and\nwith respect to the subject matter hereof and supersedes all prior and\ncontemporaneous agreements, understandings, representations, inducements or\nconditions, express or implied, oral or written, except as set forth herein. The\nexpress terms hereof control and supersede any course of performance and\/or\nusage of the trade inconsistent with any of the terms hereof.\n\n     7.2  AMENDMENT AND WAIVER. This Agreement may not be modified, amended or\nsupplemented other than by an agreement in writing executed by all parties\nhereto.  No waiver shall be binding unless executed in writing by the party\nmaking the waiver.  No waiver of any provisions, breach or default of this\nAgreement shall be deemed or shall constitute a waiver of any other provision,\nwhether or not similar, nor shall any waiver constitute a continuing waiver.\n\n                                      7.\n\n\n \n     7.3  DELAYS OR OMISSIONS.  It is agreed that no delay or omission to\nexercise any right, power or remedy accruing to any party, upon any breach,\ndefault or noncompliance  by another party under this Agreement, shall impair\nany such right, power or remedy, nor shall it be construed to be a waiver of any\nsuch breach, default or noncompliance, or any acquiescence therein, or of or in\nany similar breach, default or noncompliance thereafter occurring. It is further\nagreed that any waiver, permit, consent or approval of any kind or character of\nany breach, default or noncompliance under this Agreement or any waiver of any\nprovisions or conditions of the Agreement must be in writing and shall be\neffective only to the extent specifically set forth in such writing.  All\nremedies, either under this Agreement or otherwise afforded to any party, shall\nbe cumulative and not alternative.\n\n     7.4  ASSIGNMENT:  BINDING UPON SUCCESSORS AND ASSIGNS.  Neither party\nhereto may assign any of its rights or obligations hereunder without the prior\nwritten consent of the other party hereto.  This Agreement will be binding upon\nand inure to the benefit of the parties hereto and their respective successors\nand permitted assigns.\n\n     7.5  NOTICES.  All notices, requests, demands and other communications\nrequired or permitted under this Agreement and the transactions contemplated\nherein shall be in writing and shall be deemed to have been duly given, made and\nreceived on the date when delivered by hand delivery with receipt acknowledged,\nor upon the next business day following receipt of telex or telecopy\ntransmission, or upon the third day after deposit in the United States mail,\nregistered or certified with postage prepaid, return receipt requested,\naddressed as set forth below:\n\n          (a)  If to Buyer:\n\n                         Palo Alto Technologies, Inc.\n                         c\/o Michael Danaher\n                         Wilson Sonsini Goodrich &amp; Rosati\n                         650 Page Mill Road\n                         Palo Alto, CA  94304\n                         Telephone:  (415) 493-9300\n                         Telecopy:   (415) 493-6811\n \n          (b)  If to Sellers:\n \n                         Asyst Technologies, Inc.\n                         48761 Kato Road\n                         Fremont, Ca 94538\n                         Telephone:  (510) 661-5000\n                         Telecopy:   (510) 661-5151\n                         Attn:  Douglas J. McCutcheon\n\nAny party may alter the addresses to which communications or copies are to be\nsent by giving notice of such change of address in conformity with the\nprovisions of this Section 7.5 for the giving of notice.\n\n\n                                      8.\n\n\n \n     7.6  SURVIVAL OF REPRESENTATIONS AND WARRANTIES.  All representations and\nwarranties made by any party to this Agreement or pursuant hereto shall survive\nthe Closing.  The representations and warranties hereunder shall not be affected\nor diminished by any investigation at any time by or on behalf of the party for\nwhose benefit such representations and warranties were made.\n\n     7.7  INCORPORATION OF SCHEDULES AND EXHIBITS.  All schedules, exhibits and\nother documents and written information required to be delivered pursuant to\nthis Agreement are incorporated into this Agreement by this reference and are\nwarranted by the party or parties which deliver the same to be accurate and\ncomplete in all material respects.\n\n     7.8  EXPENSES.  Each party will bear its respective expenses and legal fees\nincurred with respect to this Agreement, and the transactions contemplated\nhereby.\n\n     7.9  CAPTIONS.  The captions contained in this Agreement are for\nconvenience and reference purposes only and shall not affect in any way the\nmeaning and interpretation of this Agreement.\n\n     7.10 SEVERABILITY.  If any provision of this Agreement, or the application\nthereof, will for any reason and to any extent be invalid or unenforceable, the\nremainder of this Agreement and application of such provision to other persons\nor circumstances will be interpreted so as reasonably to effect the intent of\nthe parties hereto.  The parties further agree to replace such void or\nunenforceable provision of this Agreement with a valid and enforceable provision\nthat will achieve, to the greatest extent possible, the economic, business and\nother purposes of the void or unenforceable provision.\n\n     7.11 GOVERNING LAW.  In all respects, including all matters of\nconstruction, validity and performance, this Agreement shall be governed by, and\nconstrued and enforced in accordance with, the laws of the State of California\napplicable to contracts made and performed in such state, without regard to the\nprinciples thereof regarding conflict of laws.\n\n     7.12 COUNTERPARTS.  This Agreement may be executed in any number of\ncounterparts, each of which shall be deemed to be an original and all of which\nshall together constitute one and the same instrument.  This Agreement shall\nbecome binding when one or more counterparts hereof shall bear the signatures of\nall of the parties indicated as the signatories hereto.\n\n     7.13 ATTORNEYS' FEES.  In the event that any action or proceeding is\nbrought by either party to enforce or interpret any provision, covenant or\ncondition contained in this Agreement, the prevailing party in such action or\nproceeding (whether after trial or appeal) shall be entitled to recover from the\nparty not prevailing its expenses therein, including reasonable attorneys' fees\nand allowable costs.\n\n                                      9.\n\n\n \n     IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of\nthe date first above written.\n\n\n     BUYER:                   PALO ALTO TECHNOLOGIES, INC.\n                              a California company\n\n\n\n                              By: \/s\/ Mihir Parikh\n                                  ----------------------------\n                              Name:   Mihir Parikh\n                              Title:  Chairman\n\n\n     SELLERS:                 ASYST TECHNOLOGIES, INC.\n                              a California corporation\n\n\n\n                              By: \/s\/ Douglas J. McCutcheon\n                                  -----------------------------\n                                  Douglas J. McCutcheon\n                                  Senior Vice President and\n                                  Chief Financial Officer\n\n\n                              ASYST AUTOMATION, INC.\n                              a Delaware corporation\n\n\n\n                              By: \/s\/ Douglas J. McCutcheon\n                                  ------------------------------\n                                  Douglas J. McCutcheon\n                                  Senior Vice President and\n                                  Chief Financial Officer\n\n                                      10.\n\n\n \n                                   EXHIBIT A\n                                   ---------\n\n\n1.0   TRANSPORT SYSTEM (AKA, \"SMART-CONVEYOR\" OR 'ATS')\n- ----  -------------------------------------------------\n\n  1.1 Designs, concepts, drawings, system hardware, electronics software,\n      engineering notebooks, assembly documentation.\n  1.2 Data\/Information regarding suppliers, Bill of Materials, costs, PCB\n      artwork, tools.\n  1.3 Intellectual property invention and patent disclosures (as per attached\n      list), files, notebooks, agreements between Asyst Automation and with\n      AESOP dated June 18, 1996.\n  1.4 Data on tests, performance, simulation, market studies.\n  1.5 Prototype and related hardware of conveyor, rotator ('director'),\n      miscellaneous subsystems and components, such as motors, PCB, computer,\n      minienvironment test bed, pods, cassettes, boxes for testing.\n\n\n2.0   TRANSFER (CONVEYOR TO TOOL LOADPORT AND\/OR STOCKER) SYSTEM\n- ----  ----------------------------------------------------------\n\n  2.1 Concept, designs invention\/patent disclosures (as per attached list) for\n      mechanisms for loading tool port or other locations from conveyor.\n  2.2 Concept, designs, invention\/patent disclosure (as per attached list) for\n      modifications, enhancement, additions to cassettes, pods, containers to\n      facilitate, improve transfer, transport or loading of tool ports.\n\n3.0   MATERIAL ROUTING MANAGEMENT AND SOFTWARE\n- ----  ----------------------------------------\n\n  3.1 Concept, designs, invention\/patent disclosure (as per attached list) for\n      use of identification and tracking systems (bar code, Smart-Tags,\n      long\/short range IR or RF devices) for enabling, enhancing transport,\n      transfer and loading of tool ports.\n  3.2 Material Control Software (\"MCS\") and Tracker Software including PLC,\n      standalone and embedded for routing, managing and scheduling of lot\n      (cassette, pod, container) movement and delivery.\n  3.3 Toshiba developed and licensed to AAI MCS software as per agreement with\n      Asyst Technologies and Toshiba Mechatronics Company, LTD. dated March 12,\n      1997.\n\n4.0   MISC. ASSETS FROM AAI AVAILABLE NO LATER THAN SEPTEMBER 30,1997\n- ----  ---------------------------------------------------------------\n\n  4.1 Up to ten (10) computers, ten (10) printers, one (1) network server\n      computer, and two (2) copiers presently on AA1 asset list. These items are\n      to be first available and selected by the buyer before being made\n      available to ATI or any other party.\n  4.2 Office desks, chairs, bookcases, and office dividers, etc. for up to ten\n      (10) professionals. These items are to be first available and selected by\n      the buyer before being made available to AT1 or any other party.\n\n                             STRICTLY CONFIDENTIAL\n\n\n \n                              LIST OF DISCLOSURES\n                              -------------------\n                                        \n57. [*]\n\n78. [*]\n\nxx. [*] \n\nxx. [*]\n\nxx. [*]\n\nxx. [*]\n\n\n\n\n                   [*] CERTAIN INFORMATION ON THIS PAGE HAS BEEN\n                   OMITTED AND FILED SEPARATELY WITH THE COMMISSION.\n                   CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH\n                   RESPECT TO THE OMITTED PORTIONS.\n\n\n \n                                  BILL OF SALE\n\n     ASYST TECHNOLOGIES, INC., a California corporation, and ASYST AUTOMATION,\nINC., a Delaware corporation  (collectively, the \"Assignors\"), which have been\nengaged in the business of developing and marketing automation products for use\nin semiconductor manufacturing (the \"Business\"), for good and valuable\nconsideration to them, receipt of which is hereby acknowledged, do hereby sell,\nassign, transfer, and convey unto PALO ALTO TECHNOLOGIES, INC., a California\ncorporation (hereinafter called \"Assignee\"), its successors and assigns, all\nrights (whether at common law or otherwise), title and interest in and to\ncertain product designs and prototypes for products related to the Business that\nhave not been marketed, certain software and certain equipment, together with\nthe intellectual property pertaining thereto, all as described on Exhibit A to\nthe Asset Purchase Agreement dated September 30, 1997 by and among the Assignors\nand the Assignee (collectively, the \"Assets\"), free and clear of all liens,\nmortgages, pledges, security interests, restrictions, prior assignments,\nencumbrances and claims of every kind, nature or character (\"Liens\"), to have\nand to hold the Assets forever.\n\n     Assignors, subject to the terms of the Asset Purchase Agreement relating to\nthe sale of Assignors' assets, do hereby warrant, covenant, and agree that they:\n\n          (a) have good and marketable title to the assets, business, and\ngoodwill hereby sold, assigned, transferred, conveyed, and delivered;\n\n          (b) will warrant and defend the sale of said assets, business, and\ngoodwill against all and every person or persons whomsoever claiming to or\nmaking claim against any or all of the same; and\n\n          (c) will take all steps necessary to put Assignee, its successor or\nassigns, in actual possession and operating control of said assets.\n\n     IN WITNESS WHEREOF, Assignors have caused the same to be signed this 30th\nday of September, 1997.\n\n\nASYST AUTOMATION, INC.                                  ASYST TECHNOLOGIES, INC.\n\n\n\nBy:  \/s\/ Douglas J. McCutcheon              By:  \/s\/ Douglas J. McCutcheon\n     ---------------------------                 ---------------------------\n     Douglas J. McCutcheon                       Douglas J. McCutcheon\n     Senior Vice President and                   Senior Vice President and\n     Chief Financial Officer                     Chief Financial Officer\n\n\n\n                                      1.\n\n\n \n                        INTELLECTUAL PROPERTY ASSIGNMENT\n\n\n     THIS ASSIGNMENT is made this 30th day of September, 1997, by ASYST\nTECHNOLOGIES, INC., a California corporation and ASYST AUTOMATION, INC., a\nDelaware corporation, (collectively, the \"Assignors\"), in favor of PALO ALTO\nTECHNOLOGIES, INC., a California corporation (the \"Assignee\").\n\n     WHEREAS, Assignors and Assignee have entered into that certain Asset\nPurchase Agreement dated September 30, 1997 (the \"Asset Purchase Agreement\"),\nwhich, along with the promises contained herein, constitute mutual consideration\nfor the promises herein;\n\n     NOW, THEREFORE, for consideration the adequacy and receipt of which is\nhereby acknowledged, the Assignors hereby:\n\n     1.  ASSIGN to Assignee all of its right, title and interest in and to the\nintellectual property referenced on Exhibit A of the Asset Purchase Agreement.\n\n     2.  AGREE to assist Assignee in every proper way, at Assignee expense, to\nobtain and enforce United States and foreign proprietary rights relating to any\nand all inventions, original works of authorship, developments, improvements or\ntrade secrets assigned hereunder.  To that end Assignors will execute, verify\nand deliver such documents and perform such other acts (including appearing as a\nwitness) as Assignee may reasonably request for use in applying for, obtaining,\nperfecting, evidencing, sustaining and enforcing such proprietary rights and the\nassignment thereof.\n\n     3.  APPOINT and designate irrevocably Assignee and its duly authorized\nofficers and agents as its agent and attorney-in-fact, to act for and in its\nbehalf to execute, verify and file any such documents and to do all other\nlawfully permitted acts to further the purposes of the preceding paragraph with\nthe same legal force and effect as if executed by Assignors, in the event\nAssignee is unable for any reason, after reasonable effort, to secure Assignors'\nsignature on any document needed in connection with the actions specified in the\npreceding paragraph.  Assignors hereby waive and quitclaim to Assignee any and\nall claims of any nature whatsoever which it now or may hereafter have for\ninfringement of any proprietary rights assigned hereunder to the Assignee.\n\n     IN WITNESS WHEREOF, Assignors have executed this Assignment as of the day\nand year first above written.\n\nASSIGNORS\nAsyst Technologies, Inc.                 Asyst Automation, Inc.\n\n\n\/s\/ Douglas J. McCutcheon                \/s\/ Douglas J. McCutcheon\n- --------------------------               --------------------------- \nDOUGLAS J. MCCUTCHEON                    DOUGLAS J. MCCUTCHEON\nSenior Vice President and                Senior Vice President and\nChief Financial Officer                  Chief Financial Officer\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6781],"corporate_contracts_industries":[9512],"corporate_contracts_types":[9623,9622],"class_list":["post-43280","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-asyst-technologies-inc","corporate_contracts_industries-technology__semiconductors","corporate_contracts_types-planning__asset","corporate_contracts_types-planning"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43280","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43280"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43280"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43280"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43280"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}