Asset Purchase Agreement (2006)Full Document 

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                                                               EXECUTION VERSION

                            ASSET PURCHASE AGREEMENT

                                     BETWEEN

                             APPLIED MATERIALS, INC.

                                       AND

                             BROOKS AUTOMATION, INC.



                                TABLE OF CONTENTS



                                                                             Page
                                                                          
ARTICLE 1 PURCHASE OF ASSETS                                                   1
     1.1  Purchase and Sale                                                    1
     1.2  Excluded Assets                                                      2
     1.3  Assumption of Liabilities                                            3
     1.4  Purchase Price                                                       3
     1.5  Closing                                                              3
     1.6  Net Asset Value Adjustment                                           5
     1.7  Seller's Option to Transfer Leases through Subleases                 6
     1.8  Limitation on Assignment of Acquired Assets                          7

ARTICLE 2 REPRESENTATIONS AND WARRANTIES OF SELLER                             7
     2.1  Organization; Good Standing                                          8
     2.2  Capitalization                                                       8
     2.3  Authority Relative to this Agreement                                 8
     2.4  Title to Shares                                                      8
     2.5  No Conflict; Required Filings and Consents                           8
     2.6  Compliance with Law                                                  9

     2.7  Financial Information                                                9
     2.8  No Undisclosed Liabilities                                          10
     2.9  Title to Assets; Absence of Liens and Encumbrances                  10
     2.10 Condition of Assets                                                 10
     2.11 Compliance with Environmental Laws                                  10
     2.12 Litigation                                                          11
     2.13 Taxes                                                               11
     2.14 Employment Matters                                                  12
     2.15 Labor Relations                                                     13
     2.16 Contracts                                                           14
     2.17 Insurance                                                           15
     2.18 Leased Real Property                                                16





                                                                           
     2.19 Intellectual Property                                               16
     2.20 Warranty and Product Liability Claims                               17
     2.21 Absence of Certain Developments                                     17
     2.22 Brokers or Finders                                                  18
     2.23 Sufficiency of Acquired Assets                                      18

ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF BUYER                             19
     3.1  Organization and Qualification                                      19
     3.2  Authority Relative to this Agreement                                19
     3.3  No Conflict, Required Filings and Consents                          19
     3.4  Financial Ability to Perform                                        20
     3.5  Brokers                                                             20

ARTICLE 4 COVENANTS                                                           20
     4.1  Access to Information                                               20
     4.2  Conduct of Business                                                 20
     4.3  Further Assurances; Maintenance of Representations and Warranties   22
     4.4  Announcements                                                       22
     4.5  Efforts to Consummate                                               22
     4.6  Employees                                                           22
     4.7  HSR Act                                                             25
     4.8  Business Records                                                    25
     4.9  Tax Matters                                                         25
     4.10 US Lease Agreements                                                 30
     4.11 Taiwan Sublease Agreement                                           30
     4.12 Transition Services Agreement                                       30
     4.13 Patent License Agreement                                            30
     4.14 Software License Agreement; Supply Relationship Agreement           30
     4.15 Escrow Agreement                                                    31
     4.16 Noncompetition and Nonsolicitation                                  31
     4.17 Exclusivity                                                         31
     4.18 Attorney-Client Privilege                                           32
     4.19 Intercompany Receivables and Payables                               32
     4.20 Required Consents                                                   32


                                      -ii-



                                                                           
     4.21 Confidentiality                                                     32
     4.22 Foreign Matters                                                     33
     4.23 Use of "Brooks"                                                     34

ARTICLE 5 CONDITIONS PRECEDENT TO CLOSING                                     34
     5.1  Conditions to Obligations of Buyer                                  34
     5.2  Conditions to Obligations of Seller                                 35

ARTICLE 6 TERMINATION                                                         36
     6.1  Termination by Mutual Consent                                       36
     6.2  Termination by Buyer                                                36
     6.3  Termination by Seller                                               36
     6.4  Effect of Termination                                               36

ARTICLE 7 INDEMNIFICATION; NATURE OF REPRESENTATIONS AND WARRANTIES           37
     7.1  Escrow Fund                                                         37
     7.2  Indemnities                                                         37
     7.3  Limitations on Indemnification                                      37
     7.4  Procedures Regarding Indemnification Claims                         38
     7.5  Exclusive Remedy                                                    39
     7.6  Only Representations and Warranties, etc                            39
     7.7  Tax Treatment                                                       40
     7.8  No Right of Set-Off                                                 40

ARTICLE 8 DEFINITIONS; CERTAIN RULES OF CONSTRUCTION                          40
     8.1  Definitions                                                         40
     8.2  Certain Rules of Construction                                       47

ARTICLE 9 MISCELLANEOUS                                                       47
     9.1  Time is of the Essence                                              47
     9.2  Waivers and Amendments                                              47
     9.3  Cumulative Rights and Remedies                                      47
     9.4  Notices                                                             47
     9.5  Expenses                                                            49
     9.6  Miscellaneous                                                       49


                                      -iii-



                                                                           
     9.7  Choice of Law                                                       50
     9.8  Consent to Jurisdiction                                             50
     9.9  WAIVER OF JURY TRIAL                                                51
     9.10 Severability                                                        51
     9.11 Assignability                                                       51


                                      -iv-


                                LIST OF SCHEDULES

Schedule 1.1(b)  Leases
Schedule 1.1(d)  Intellectual Property
Schedule 1.1(j)  Transferred Companies
Schedule 1.2     Excluded Assets
Schedule 5.1(e)  Required Consents

                 Seller Disclosure Schedule

                                LIST OF EXHIBITS

Exhibit 1.5(a)   Bill of Sale
Exhibit 1.5(b)   Assignment and Assumption Agreement

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