Exhibit 10.1


 


ASSET PURCHASE AGREEMENT


 


This Asset
Purchase Agreement (together with its exhibits, the “Agreement”) is made
by and among Ibis Technology Corporation (“Ibis”), Nissin Ion Equipment
Company, Ltd. (“Nissin”), Dr. Hilton Glavish, and Zimec Consulting, Inc.
(d/b/a Zimec, Inc.) (Dr. Hilton Glavish and Zimec Consulting, Inc.
are herein collectively referred to as “Zimec”), each individually a “Party”
and collectively the “Parties” to this Agreement.  The Appendices to this Agreement are attached
hereto for reference purposes only and are not part of this Agreement.


 


WHEREAS, Zimec
Consulting, Inc. (d/b/a Zimec, Inc.) is a Nevada corporation formed
in 1989 that is the successor to all the rights and obligations of Zimec, Inc.,
a California corporation which was merged into Zimec Consulting, Inc.;


 


WHEREAS, Nissin, Ibis and Zimec had
previously entered into a series of transactions wherein: a) [**]; b) Zimec
subsequently exclusively licensed its 1-D rights to Ibis pursuant to the
Zimec-Ibis 1-D Sublicense Agreement; and c) Ibis thereafter non-exclusively
licensed its 1-D rights to Nissin, [**] and [**];


 


WHEREAS, Nissin and Ibis entered into the
Option Exercise Agreement wherein Ibis licensed the Wiggler Patents to Nissin,
and Nissin licensed the Bias Scan Patents to Ibis;


 


WHEREAS, Ibis and Zimec entered in the
Zimec-Ibis Dual Field Cross-License Agreement wherein Ibis licensed the Wiggler
Patents to Zimec, and Zimec licensed the Dual Field Patents to Ibis;


 


WHEREAS, the Parties wish to terminate the existing
licenses to Nissin, Ibis and Zimec, assign the Dual Field Patents and Wiggler
Patents to Nissin and thereby simplify ownership by vesting sole ownership of
the 2-D patents, 1-D Patents, Bias Scan Patents, Dual Field Patents and Wiggler
Patents in Nissin;


 


WHEREAS, Nissin wishes to grant Ibis certain
rights pursuant to the Simox and Hydrogen License Agreement;


 


WHEREAS, [**]; and


 


WHEREAS, Ibis and Zimec wish to terminate and
release certain rights and obligations to each other pursuant to the Ibis-Zimec
Termination and Release Agreement.


 


NOW, THEREFORE, in consideration of the
foregoing premises and the mutual covenants and agreements set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties, each intending to be legally bound, hereby
agree as follows:


 


1

















 


1.  Effective Date


 


The effective
date of this Agreement shall be October 30, 2008 (“Effective Date”).


 


2.  Definitions


 


For the
purposes of this Agreement: (i) the terms “hereof,” “herein” and “herewith”
and words of similar import shall, unless otherwise stated, be construed to
refer to this Agreement as a whole (including all of the Exhibits) and not to
any particular provision of this Agreement, and Section and paragraph
references shall be to the Sections and paragraphs of this Agreement, unless
otherwise specified; and (ii) the word “including” and “include” and words
of similar import when used in this Agreement mean “including without
limitation.”  As used herein, the
following terms will have the following meanings:


 


(a) Patent
Rights


 


“1-D
Patents” shall mean all patents and patent applications worldwide for
inventions disclosed in U.S. Patent Nos. 5,311,028, issued May 10, 1994,
entitled “System and Method for Producing Oscillating Magnetic Fields in
Working Gaps Useful for Irradiating a Surface with Atomic and Molecular Ions”;
5,393,984, issued Feb. 28, 1995, entitled “Magnetic Deflection System for
Ion Beam Implanters”; and 5,483,077, issued January 9, 1996, entitled “System
and Method for Magnetic Scanning, Accelerating, and Implanting of an Ion Beam”,
including all U.S. and foreign patents and any patent applications identified
on Exhibit 1.


 


“Bias Scan
Patents” shall mean all patents and patent applications worldwide for
inventions disclosed in U.S. Patent 5,438,203, issued August 1, 1995,
entitled “System and Method for Unipolar Magnetic Scanning of Heavy Ion Beams”,
including all U.S. and foreign patents and any patent applications identified
on Exhibit 2.


 


“Dual Field
Patents” shall mean all patents and patent applications worldwide for
inventions disclosed in U.S. Patent 5,672,879, issued September 30, 1997,
entitled “System and Method for Producing Superimposed Static and Time-Varying
Magnetic Fields”, including all U.S. and foreign patents and any patent
applications identified on Exhibit 3.


 


“Wiggler
Patents” shall mean all patents and patent applications worldwide for
inventions disclosed in U.S. Patent 5,481,116, issued January 2, 1996,
entitled “Magnetic System and Method for Uniformly Scanning Heavy Ion Beams”,
including all U.S. and foreign patents and any patent applications identified
on Exhibit 4.


 


(b) 
Zimec-Nissin Agreements


 


[**];


 


(c) Zimec-Ibis
Agreements


 


2

















 


“Zimec-Ibis
1-D Master Agreement” shall mean the “Master Agreement”, effective as of August 7,
1992, between Dr. Hilton Glavish (acting for himself and on behalf of
Zimec, Inc.) and Ibis Technology Corporation, executed by both parties on
12/21/1993, Appendix 11;


 


“Zimec-Ibis
1-D Sublicense Agreement” shall mean 
the “Sublicense Agreement” attached as Exhibit A to “Master
Agreement”, between Dr. Hilton Glavish (acting for himself and on behalf
of Zimec, Inc.) and Ibis Technology Corporation, executed by both parties
on 12/21/1993 and re-executed by them on 
3/9/1995, Appendix 12;


 


“Zimec-Ibis
Dual Field Master Agreement” shall mean the “Master Agreement-Zero Field
Correction”, effective as of August 7, 1994, between Hilton Glavish
(acting for himself and Zimec, Inc.) and Ibis Technology Corporation,
executed by Dr. Glavish on 05-14-1997 and on behalf of Ibis on 5-1-1997,
Appendix 13; and,


 


“Zimec-Ibis
Dual Field Cross-License Agreement” shall mean the “Cross License Agreement”
attached as Exhibit A to Master Agreement-Zero Field Correction,
effective  as of August 7, 1994,
between Dr. Hilton Glavish (acting for himself and on behalf of Zimec, Inc.)
and Ibis Technology Corporation, executed 
by Dr. Glavish on 05/14/1997 and on behalf of Ibis on 5/1/1997,
Appendix 14.


 


(d) Ibis-granted
third party 1-D Sub-licenses


 


[**]; and


 


(e) Nissin-Ibis
Agreements


 


“1-D
License to Nissin” shall mean the “License Option Agreement” effective 3rd
day of June, 1994 between Nissin Electric Co., Ltd and Ibis Technology
Corporation, executed on behalf of Nissin Electric on 6-15-1994 and on behalf
of Ibis on 6-3-1994, recently assigned by Nissin Electric to Nissin Ion,
Appendix 17.


 


“Option
Exercise Agreement” shall mean the “Agreement” between Nissin Electric Co.,
Ltd. and Ibis Technology Corporation, effective September 1, 1994,
Appendix 18.


 


(f) Consulting
Agreements


 


[**]


 


“Zimec-Ibis
1-D High Current Oxygen Machine Consulting Agreement” shall mean the “Consulting
Agreement” made 13 November, 1989 between Ibis Technology Corp. and Zimec, Inc,
Appendix 10B.


 


[**]


 


3

















 


“Affiliate(s)”
of a Party means a company or other legal entity, which now or hereafter
controls, is controlled by, or is under common control with a Party.  Control shall mean either direct or indirect
ownership or control of: (a) more than fifty percent (50%) of the
outstanding shares or other securities entitled to vote for election of
directors (or other managing authority); or (b) more than fifty percent
(50%) of the equity interest of a company or other legal entity, but only as
long as such control or ownership exists.


 


“Claim”
means any assertion of right whatsoever (including all debts, promises,
damages, equitable claims and judgments), liquidated or unliquidated, fixed or
contingent, direct or indirect, or imputed.


 


“Encumbrance”
means any charge or interest relating to or arising out of any condition,
equitable interest, lien, license, covenant not to sue, option, pledge,
security interest, mortgage, right of first offer or first refusal, buy/sell
agreement and any other restriction or covenant with respect to, or condition
governing the use, construction, transfer, receipt of income or exercise of any
other attribute of legal or equitable ownership.


 


“Hydrogen
Separation Field” means the field of 
use for the production of Hydrogen Wafers using high energy, high
current ion implantation machines.


 


“Hydrogen
Wafer” means a wafer in which a buried layer of hydrogen has been created
in a semiconductor substrate by implantation of hydrogen ions, which enables
fracture at the  buried layer of hydrogen
to promote separation of the outer layer of the semiconductor substrate from
the remaining body of the substrate.


 


“Know-How”
means, to the extent they exist, ideas, concepts, inventions, know-how, trade
secrets, technical knowledge, discoveries, developments, innovations,
improvements, processes, methods, data, formulas, information, research and
development, compositions, techniques, and designs regardless of whether or not
protected or entitled to protection under the patent, copyright or other laws
of any jurisdiction.


 


“Losses”
means any losses, claims, damages and liabilities (including without limitation
interest, penalties and reasonable attorneys’ fees).


 


“Sellers”
are Ibis and Zimec.


 


3.  Purchase


 


Section 3.1.  Purchased
Assets.  In
reliance on the representations, warranties, and agreements contained herein,
Sellers shall, and hereby do, sell, assign, transfer and deliver to the Nissin,
and Nissin shall, and hereby does, purchase and accept from the Sellers, all of
the rights, title and interests in and to the following assets, properties and
rights, free and clear of all Claims and Encumbrances other than set forth
herein (collectively, the “Purchased Assets”):


 


(a)                                 Patents.  The inventions disclosed in the 1-D Patents,
Bias Scan Patents, Dual Field Patents and Wiggler Patents, including the
patents and patent applications 


 


4

















 


identified on Exhibits 1-4 attached hereto,
including any subsequent applications and all divisions, extensions, renewals,
substitutes, reexaminations, reissues, continuations, continuations-in-part and
foreign counterparts thereof (collectively, the “Purchased Patents”);


 


(b)                                Know-How.  The Know-How related to the inventions
disclosed in the Purchased Patents including any Know-How related to Hydrogen
Wafers and the Hydrogen Separation Field;


 


(c)                                 Contracts.  All of Ibis’s rights and benefits under the
Zimec-Ibis 1-D High Current Oxygen Machine Consulting Agreement related to
Proprietary Information (as defined therein);


 


(d)                                Title
and the right to sue and recover damages for any past, present and future
infringements of the Purchased Patents; and


 


(e)                                 Proceeds.  The right to receive any royalties or other
payments made by the licensees under the [**]


 


(f)


 


Section 3.2.  No Assumption of Liabilities.  Nissin is only purchasing the Purchased
Assets and Nissin will not assume or be liable for any liabilities or
obligations of any kind whatsoever of Sellers. 
All such liabilities and obligations of the Sellers shall be retained by
and remain obligations of Sellers including any obligations to [**]and [**].  Sellers will retain no rights whatsoever in
or to the Purchased Assets other than the licenses explicitly provided in the
Simox and Hydrogen License Agreement.


 


Section 3.3.  Purchase Price.  The purchase price for the Purchased
Assets shall be [**], to be paid by Nissin to Sellers by sending a portion of
purchase price equal to one million one hundred fifty five thousand nine
hundred and eighteen dollars and 48 cents ($1,155,918.48) by check or wire
transfer to Ibis and by sending the remaining portion of the purchase price
[**] by check or wire transfer to Zimec.


 


Section 3.4  Covenant in
Support of Assignment.  To the extent the Sellers cannot transfer and
assign any of the Purchased Assets to Nissin for any reason, then the Sellers
will, and will cause their Affiliates to, assign and transfer such Purchased
Assets to Nissin at the first opportunity to do so.  To the extent that any of the Sellers’
rights, title or interests in any Purchased Assets cannot be assigned and
transferred by the Sellers to Nissin, then the Sellers hereby grant to the Nissin
and its Affiliates, an irrevocable, perpetual, worldwide, exclusive license
under such rights, title and interests in any Purchased Assets, with the right
to sublicense through multiple tiers, to make, have made, use, sell, offer to
sell, import and export products, product systems and processes and to
reproduce, distribute, modify, enforce and otherwise exploit such rights, title
and interests in any Purchased Asset in any manner for any purpose.


 


Section 3.5  License
for [**].  The Parties acknowledge that
rights under certain Purchased Patents have been previously non-exclusively
licensed pursuant to the [**], that Ibis 


 


5

















 


has given the notices (copies attached at Appendix 19) of this
transaction required by these licenses and that these licenses remain in
effect.


 


4.  Closing


 


Section 4.1.  Closing.  The closing (the “Closing”) for the purchase
and sale of the Purchased Assets shall take place simultaneously at the offices
of counsel for the Parties by fax with original documents to be provided
promptly thereafter.


 


Section 4.2. Deliveries by Sellers.  At the Closing, Sellers shall deliver to
Nissin the following items, the delivery of which shall be a condition to
Nissin’s obligation to consummate the transactions contemplated herein:


 


(a)                                 the
Purchased Assets; and


 


(b)                                duly
executed copies of this Agreement and the following Exhibits:


(i) Simox
and Hydrogen License Agreement


(ii) [**]


(iii) Ibis-Zimec
Termination and Release Agreement


(iv) three
Patent Assignment Agreements;


 


(c)                                 and
Sellers shall have taken all steps necessary to put Nissin in custody,
possession and control of any and all embodiments of the Know-How in Sellers’
possession or control.


 


Section 4.3.                                Deliveries
by Nissin.  At the Closing,
Nissin shall deliver to Sellers the following items, the delivery of which
shall be a condition to Seller’s obligation to close the transactions
contemplated herein:


 


(a)                                 payment
of the purchase price according to Section 3.3;


 


(b)                                duly
executed copies of this Agreement and the following Exhibits:


(i) Simox
and Hydrogen License Agreement


(ii) [**].


 


Section 4.4.                                Simultaneous
Closing.  All actions taken at
the Closing shall be deemed to be performed simultaneously.  The Parties shall deliver such additional
documents and take such additional actions as may be reasonably necessary to
complete the transactions contemplated hereby.


 


5.                                      Prior
Agreements


 


5.1                               Terminated
Agreements.  Subject to the terms
and conditions hereof, the Parties agree to terminate the following agreements
as of the Effective Date, acknowledge that they have


 


6

















 


fully performed and satisfied their obligations (including any payment
obligations, including, but not limited to, any payment obligations indicated
in any Ibis invoice (e.g., invoice no. 3564) issued or dated on or before the
Effective Date), and release each other from any remaining obligations
thereunder, whether due, pending, or arising in the future, to any other Party
and their Affiliates (including predecessors and successors):


 


Zimec-Ibis 1-D Master Agreement


Zimec-Ibis 1-D Sublicense Agreement


1-D License to Nissin


Option
Exercise Agreement


Zimec-Ibis Dual Field Master Agreement


Zimec-Ibis
Dual Field Cross-License Agreement


 


5.2                               Satisfaction
of Zimec-Ibis Consulting Agreement.


 


Zimec
acknowledges that Ibis has paid-in-full all payment obligations under the
following agreement and that no future payments will become due under the
following agreement and Ibis acknowledges that, subject to the continuing
obligations with respect to Proprietary Information, that Zimec has discharged
all of its obligations to provide consulting services under the following
agreement:


 


Zimec-Ibis 1-D
High Current Oxygen Machine Consulting Agreement


 


5.3  Release.  Based on the consideration provided in this
Agreement, the Parties, on behalf of themselves, and their predecessors in
interest, Affiliates, attorneys, employees, officers, directors, successors,
and assigns do hereby fully and forever release, acquit, and discharge each
other, and their predecessors in interest, parent corporations, Affiliates,
officers, customers, attorneys, employees and directors from any and all Losses
arising from any known and unknown Claims arising at any time, before or after
the Effective Date, with respect or related to any acts or omissions related to
the agreements listed in Sections 5.1 and 5.2 occurring prior to the Effective
Date.


 


5.4  Covenant.  Effective as of the
Closing, the Sellers hereby irrevocably and perpetually covenant and warrant
that the Sellers shall not, and shall cause their Affiliates, successors, and
assigns not to, sue or commence any action against Nissin or its Affiliates or
their customers for past or future infringement or misappropriation of any the
Purchased Patents anywhere in the world for making, having made, using,
selling, offering to sell, importing, or exporting of products or services or
practicing methods covered by the Purchased Patents.


 


6.  Further Assurances.  The Parties shall
deliver such additional documents and take such additional actions as may be
reasonably necessary to complete the transactions contemplated hereby.  Sellers agree to execute such further
documents as Nissin may reasonably request to effectuate the transfer and to
record transfer of title in the properties identified in Section 3.  Ibis hereby grants Nissin a power-of-attorney
for the sole purpose of executing confirmatory assignments and recording
assignments, with the appropriate patent offices, for the Purchased Patents
from Ibis to Nissin.


 


7
















 


7.  Ongoing
Obligations.  After
the Effective Date of the Agreement, no Party will have any obligation to
prosecute or pay maintenance, annuity or other fees for any of the patents
included in the Purchased Patents or take any enforcement action in respect
thereof.


 


8.  Obligations
of Zimec.  [**]


 


9.  [**]


 


10.          Representations
and Warranties


 


The Parties represent and warrant that:


 


Section 10.1  Organization, Power and Standing.  Nissin, Ibis and Zimec Consulting, Inc.
are duly organized, validly existing and in good standing, each having all
requisite corporate power and authority to own its properties and to conduct
its business as and where its business is now conducted.  Zimec Consulting, Inc. is the successor
to Zimec, Inc. (Zimec, Inc. was merged into Zimec Consulting, Inc.).


 


Section 10.2  Power and Authority Relative to Sale of
Purchased Assets. 
The Parties have full corporate power and authority and have taken all
required corporate action necessary to permit each to execute and deliver and
to carry out the terms of this Agreement and all other documents or instruments
required or contemplated hereby and none of such actions will violate any law,
rule, regulation, statute or ordinance applicable to the Parties, violate any
provisions of  any Party’s Certificate of
Incorporation or By-Laws, each as amended, or result in any breach of, or
default under, any agreement, instrument, order or judgment to which any Party
is a party or by which any of its assets may be bound.


 


Section 10.3  Valid and Binding
Obligation.  This
Agreement constitutes, and each other instrument or agreement to be executed
and delivered by the Parties in accordance herewith will constitute, the valid
and legally binding obligation of the respective Party enforceable against the Parties
in accordance with their respective terms. 
The Parties will comply with and not breach any of their obligations
under this Agreement and the other agreements delivered at Closing pursuant to
Sections 4.2 and 4.3.  Ibis will obtain
representation and warranty insurance to cover any claims, liabilities,
indemnity obligations, or other damages arising out of or related to this
Agreement as set forth in Section 12.13 of this Agreement.


 


Section 10.4  Title to Assets.  As of Closing, Nissin will receive free and
clear of any Claims and Encumbrances, sole, exclusive, valid and marketable
title to the Purchased Patents, subject only to the licenses contained in the
Simox and Hydrogen License Agreement and the [**] and the [**].  Other than with respect to the Purchased
Patents that have been prosecuted and maintained by Nissin prior to the
Effective Date, none of the other Purchased Patents are expired or have been
abandoned and all of the necessary registration, maintenance and renewal fees
in connection therewith have been timely made and all necessary documents and
certificates in connection therewith have been filed with the relevant
authority in the United States or a foreign jurisdiction, as the case may be,
for the purpose of maintaining the registrations or 


 


8

















 


applications for registration of such patent rights.  The consummation of this Agreement will not
alter, impair or extinguish any of the Purchased Assets.


 


Section 10.5  Pending or Threatened Litigation.  There is no pending or, to any Party’s  knowledge, threatened action, suit,
investigation or proceeding relating to the Purchased Assets that would either
affect the ability of any Party to consummate the transactions contemplated
herein or impair or affect title to the Purchased Assets.


 


Section 10.6  Consents.  No consent, authorization, order or approval
of any third party or governmental authority is required in connection with the
transfer, assignment or conveyance by Sellers of any of the Purchased
Assets.  Except as provided by in Section 9,
there are no royalties or other consideration required to be paid by Nissin for
the use of any of the Purchased Patents.


 


Section 10.7  Disclaimer.  Without limitation, the Parties disclaim any
warranty that the Purchased Patents hereunder comprise all the rights and
licenses necessary or desirable to practice, develop, make, sell, offer to sell
or use any products and methods licensed hereunder.


 


11.          Indemnification


 


Section 11.1  Indemnification of Nissin by Sellers.   Each Seller agrees to indemnify, defend and
hold Nissin harmless from and against any and all Losses that Nissin or its
officers, directors, employees or Affiliates may suffer, sustain, incur or
become subject to arising out of or relating or due to the breach of any
express representation, warranty or obligation by such Seller contained in this
Agreement or The Simox and Hydrogen License Agreement for which such Seller is
given written notice within twelve (12) months of the Effective Date.


 


Section 11.2  Indemnification of Sellers by Nissin.  Nissin agrees to
indemnify, defend and hold Sellers harmless from and against any and all Losses
that Sellers or their officers, directors, employees or Affiliates may suffer,
sustain, incur or become subject to arising out of or relating or due to the
breach of any express representation, warranty or obligation of Nissin
contained in this Agreement or The Simox and Hydrogen License Agreement for
which Nissin is given written notice within twelve (12) months of the Effective
Date.


 


Section 11.3  Procedure for Indemnification.  Any Party (the “Indemnified Party”) making a
claim for indemnification hereunder shall notify the applicable other Party
and/or its insurance carrier (the “Indemnifying Party”) of the claim in
writing, describing the claim, the amount thereof, and the basis therefor.  The Indemnifying Party shall respond to each
such claim within thirty (30) days of receipt of such notice.  If such demand is based on a claim by a third
party, the Indemnifying Party shall have the right to assume control of the
defense thereof, including, at its own expense, employment of counsel
reasonably satisfactory to the Indemnified Party, and, in connection therewith,
the Indemnified Party shall reasonably cooperate to make available to the
Indemnifying Party all pertinent information under its control.  No settlement may be made by any Indemnifying
Party without the consent of the Indemnified Party, unless such settlement only
requires the payment of money damages and such amounts are paid in full by the
Indemnifying Party and the Indemnified Party is released from all claims of the
relevant 


 


9

















 


third party or parties.  The
Indemnified Party may, at its own expense, participate in any proceeding
relating to any such claims as to which the Indemnifying Party has assumed
control pursuant to this Agreement.


 


12.          Miscellaneous


 


Section 12.1  Entire Agreement.
This Agreement is the entire contract between the Parties with respect to the
subject matter hereof, and supersedes any prior oral or written agreements or
understandings between the Parties. This Agreement may not be modified except
pursuant to a written instrument signed by all Parties.


 


Section 12.2  Construction.  The language used in this Agreement will be
deemed to be the language chosen by the Parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any
Party.


 


Section 12.3  No Waiver.  No waiver or failure to insist upon strict
compliance with any obligation, covenant, agreement or condition of the
Agreement shall operate as a waiver of, or an estoppel with respect to any
subsequent or other failure.  No waiver
of any term or provision hereof shall be effective unless in writing signed by
the Party waiving such term or provision.


 


Section 12.4  Severability.
In case any provision of this Agreement shall be declared invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.  For any such provision, the Parties shall
attempt in good faith to negotiate a substitute valid and enforceable provision(s) while
preserving to the fullest extent possible the intent and agreements of the
Parties set forth herein.


 


Section 12.5  Assignment.  This Agreement and any of a Party’s duties or
obligations hereunder shall not be assignable or transferable by such Party
without the express prior written consent of the other Parties, except to a
single purchaser or successor in ownership of substantially all of a Party’s
assets related to the subject matter of this Agreement (e.g., the single
purchaser or successor in ownership that may emerge as a bankruptcy action,
including but not limited to any reorganized debtor).  Any assignment or transfer in violation of
this section shall be void.  Subject to
this paragraph, this Agreement will be binding upon, inure to the benefit of,
and be enforceable by, the Parties and their respective successors and
permitted assigns.


 


All of the rights granted under this Agreement shall be deemed fully
retained by and vested as rights to intellectual property protected under Section 365(n) of
the United States Bankruptcy Code (and similar laws in other jurisdictions) (“Section 365(n)”);
and the applicable entity shall have all of the rights afforded to non-debtor
licensees under Section 365(n).  A
material consideration for the Parties entering into this Agreement is the
acknowledgement that this Agreement may not be assigned (other than as provided
by this Section), transferred or rejected by a Party or its bankruptcy
trustee(s).


 


Section 12.6  Governing Law.
This Agreement shall be governed by, construed and enforced in accordance with
the laws of the United States of America and the Commonwealth of Massachusetts
without regard to conflicts of law provisions thereof, and the parties hereby 


 


10

















 


submit to the exclusive jurisdiction over such disputes in the state
and federal courts of the Commonwealth of Massachusetts and waive any objection
to the propriety or convenience of venue in such courts.


 


Section 12.7  Counterparts.
This Agreement may be executed manually or by facsimile transmission signature
in any number of counterparts. Each of such counterparts shall for all purposes
be deemed an original, and all such counterparts shall together constitute but
one and the same instrument.


 


Section 12.8  Expenses.  Each Party shall bear the expenses incurred
by it relating to the transactions contemplated by this Agreement, including
without limitation fees and expenses of counsel.


 


Section 12.9 Notices.  All notices to a Party hereto shall be in
writing and delivered in person or by courier, with receipt showing acceptance
signature, to such Party at its address set forth below with copies delivered
as specified (or such other address as a Party may from time to time designate
in writing to the other Parties):


 


If to Nissin:


 


Nissin Ion Equipment Co., Ltd.


575 Kuze Tonoshiro-cho


Minami-ku, Kyoto


601-8205, Japan


Attn: President


 


with a copy to:


 


Ropes & Gray LLP


Yusen Building 2F


3-2, Marunouchi 2-chome


Chiyoda-ku, Tokyo


100-0005 Japan


Attn: Hiroyuki Hagiwara


 


If to Ibis:


 


Ibis Technology Corporation


32 Cherry Hill Drive


Danvers, MA 01923


Attn: President


 


with a copy to:


 


Choate Hall & Stewart


Two International Place


 


11

















 


Boston, MA 02110


Attn: Lawrence H. Gennari


 


If to Zimec:


 


Zimec Consulting, Inc


5485 Reno Corporate Dr., Ste. 600


Reno, NV 89511-2250


Attn: Hilton Glavish


 


with a copy to:


 


Fish & Richardson


225 Franklin St.


Boston, MA  02110


Attn:  John N. Williams


 


Notice shall be deemed given upon receipt.


 


Section 12.10  Confidentiality.  No party shall reveal or disclose any of the
terms and conditions of this Agreement to any non-party to this Agreement
except under the following conditions:


 


(1)           with the prior
written consent of the other Parties;


 


(2)                                  in response to a
requirement from any governmental body or court that has jurisdiction to
request production of such information, whereby the recipient of this Agreement
so produced shall  protect the
confidentiality of the information produced to the maximum extent allowed under
applicable law;


 


(3)                                  as otherwise required
by law or legal process, whereby the recipient of this Agreement so produced
agrees to protect the confidentiality of the information produced; or


 


(4)                                  to legal counselors,
financial auditors and other similar professionals representing a Party or representing
third parties (and to the third Parties, themselves) in the event of a merger
or an acquisition of all or substantially all of the assets of  a Party or its Affiliates that relate to the
subject matter of this Agreement, whereby the recipient of this Agreement
agrees to protect the confidentiality of the information produced.


 


Should a Party be required to file this Agreement (or any ancillary
agreement delivered at Closing) with a securities regulatory body, the Party
will seek to obtain confidential treatment of mutually agreed portions of
agreement(s) filed.  Notwithstanding
the foregoing, the Parties may disclose the general existence of the ownership
interests and licenses granted hereunder to their customers and suppliers, as a
Party’s business so requires.


 


12

















 


Section 12.11 No Joint Liability.  The obligations of Nissin, Ibis and Zimec are
several, not joint, such that no such Party shall be liable or responsible in
any manner with respect to the breach of this Agreement by any other such
Party.


 


Section 12.12  Limitation of Liability.  Except for claims of fraud or
indemnification, in no event shall any Party to this Agreement, nor its
officers, employees, directors, shareholders, or agents, be liable for any
punitive damages.  In no event shall each
Seller, nor its respective officers, employees, directors, shareholders, or
agents, individually or in the aggregate, be liable for damages in excess of
the amount actually paid to such Seller hereunder.  Any notice for indemnification under Section 11.3
or any other notice related to money damages must be made within twelve (12)
months of the Effective Date.


 


Section 12.13 Insurance.  Ibis shall maintain
an insurance policy for twelve (12) months following the Effective Date of the
Agreement with a reputable insurer and such insurance policy must be valid and
enforceable for an insured amount of not less than the actual amount paid to
Ibis hereunder to cover any claims, liabilities, indemnity obligations, or
other damages arising out of or related to this Agreement, The Simox and
Hydrogen License Agreement, and the Purchased Assets.  Nissin will be endorsed by the carrier as a
loss payee pursuant to a loss payee endorsement under such policy and subrogation
against any insurance Nissin may have will be waived by the carrier.  Copies of the insurance policy obtained under
this paragraph shall be provided to and be reasonably acceptable to Nissin.


 


13

















 


Intending to be bound thereby, the Parties have caused their duly
authorized representatives to execute this Agreement.


 


 


	
  Ibis Technology Corporation

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Nissin Ion Equipment Company, Ltd.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Zimec Consulting, Inc. (d/b/a Zimec, Inc.)

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Dr. Hilton Glavish

  	
   

  
	
   

  	
   

  
	
   

  	
   

  



 


14

















 


EXHIBITS AND APPENDICES TO ASSET PURCHASE
AGREEMENT


 


EXHIBITS


 


Tab 1   1-D  Patents


 


Tab 2   Bias Scan Patents


 


Tab 3   Dual Field Patents


 


Tab 4   Wiggler Patents


 


Tab 5   Simox and Hydrogen License Agreement


 


Tab 6   [**]


 


Tab 7   Three Patent Assignment Agreements


 


Tab 8   The Ibis-Zimec Termination and Release Agreement


 


APPENDICES


 


Tab 9   [**]


 


Tab 10A  [**]


 


Tab 10B   Zimec-Ibis 1-D High Current Oxygen Machine
Consulting Agreement


 


“Consulting Agreement” made 13 November, 1989 between Ibis Technology
Corp. and Zimec, Inc., Appendix 10B.


 


Tab 10C   [**]


 


Tab 11   Zimec-Ibis 1-D Master Agreement


 


“Master Agreement”, effective as of August 7, 1992, between Dr. Hilton
Glavish (acting for himself and on behalf of Zimec, Inc.) and Ibis
Technology Corporation, executed by both parties on 12/21/1993, Appendix 11.


 


Tab 12   Zimec-Ibis 1-D Sublicense Agreement


 


“Sublicense Agreement” attached as Exhibit A to “Master Agreement”,
between Dr. Hilton Glavish (acting for himself and on behalf of Zimec, Inc.)
and Ibis Technology Corporation, executed by both parties on 12/21/1993 and
re-executed by them on 3/9/1995, Appendix 12.


 


Tab 13   Zimec-Ibis Dual Field Master Agreement


 


15

















 


“Master Agreement-Zero Field Correction”, effective as of August 7,
1994, between Hilton Glavish (acting for himself and Zimec, Inc.) and Ibis
Technology Corporation, executed by Dr. Glavish on 05-14-1997 and on
behalf of Ibis on 5-1-1997, Appendix 13.


 


Tab 14   Zimec-Ibis Dual Field Cross-License Agreement


 


“Cross License Agreement” attached as Exhibit A to Master
Agreement-Zero Field Correction, effective as of August 7, 1994, between Dr. Hilton
Glavish (acting for himself and on behalf of Zimec, Inc.) and Ibis
Technology Corporation, executed by Dr. Glavish on 05/14/1997 and on
behalf of Ibis on 5/1/1997, Appendix 14.


 


Tab 15   [**]


 


Tab 16   [**]


 


Tab 17   1-D License to Nissin


 


“License Option Agreement” effective 3rd day of June, 1994  between Nissin Electric Co., Ltd and Ibis
Technology Corporation, executed on behalf of Nissin Electric on 6-15-1994 and
on behalf of Ibis on 6-3-1994, recently assigned by Nissin Electric to Nissin
Ion, Appendix 17.


 


Tab 18   Option Exercise
Agreement


 


“Agreement” between Nissin Electric Co., Ltd. and Ibis Technology
Corporation, effective September 1, 1994, Appendix 18.


 


Tab 19   [**]


 


16