EXECUTION COPY SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT

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;

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) through (iv) above (the “First Installment Principal Amount”), or (b) $300,000, together with interest thereon, calculated at the Wall Street Journal Prime Rate (as published in the Eastern print edition of the Wall Street Journal for such date) plus one percent as set forth below. The amount payable in the Second Installment shall be equal to the Contingent Payment minus the First Installment (the “Second Installment Principal Amount”),together with interest thereon, calculated at the Wall Street Journal Prime Rate (as published in the Eastern print edition of the Wall Street Journal for such date) plus one percent as set forth below. Interest on the each of the First Installment Principal Amount and the Second Installment Principal Amount shall begin accruing 15 days following the end of the Contingent Payment Period, shall be computed on the basis of a year of 360 days, and shall be assessed for the actual number of days elapsed. In such computations, effect shall be given to any change in the applicable interest rate as a result of any change in the Wall Street Journal Prime Rate on the date of each such change. OEM Group may prepay all or part of either or both of the First Installment Principal Amount or the Second Installment Principal Amount at any time without premium or penalty. Any prepayment hereunder shall also be accompanied by the payment of all accrued and unpaid interest on the amount so prepaid.

1.4           Counterparts.  This Amendment may be executed in any number of counterparts and any Party hereto may execute any such counterpart, each of which when executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument.  This Amendment shall become binding when one or more counterparts taken together shall have been executed and delivered by the parties.  It shall not be necessary in making proof of this Amendment or any counterpart hereof to produce or account for any of the other counterparts.

1.6           Severability.  Any provision of this Amendment which is invalid or unenforceable in any jurisdiction shall be ineffective to the extent of such invalidity or unenforceability without invalidating or rendering unenforceable the remaining provisions hereof, and any such invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

1.7           Headings.  All section headings contained in this Amendment are for convenience of reference only, do not form a part of this Amendment and shall not affect in any way the meaning or interpretation of this Amendment.

 

1.8           Amendments and Waivers.  No amendment of any provision of this Amendment shall be valid unless the same shall be in writing and signed by each of the Parties.