PURCHASE AGREEMENT
Purchase Agreement entered into as of March 30, 1998, by and among PruTech
Research and Development Partnership II, a California limited partnership
("PruTech II"), PruTech Project Development Partnership, a California limited
partnership ("PPDP;" PPDP and PruTech II being collectively referred to herein
as "PruTech"), and Nanometrics Incorporated ("Nanometrics"). PruTech and
Nanometrics are referred to collectively herein as the "Parties."
R E C I T A L S:
WHEREAS, Nanometrics is in the business of manufacturing and selling capital
equipment to the semi-conductor industry and to certain other customers;
WHEREAS, PruTech has licensed certain technology to Optical Specialties, Inc., a
California corporation ("OSI"), which is used in the development of the Metra
line of automatic critical dimension and overlay registration semiconductor
wafer measurement systems ("Metra");
WHEREAS, PruTech desires to sell to Nanometrics, and Nanometrics desires to
purchase from PruTech, all of PruTech's right, title and interest in and to
certain technology and rights related to Metra, upon the terms and subject to
the conditions set forth herein; and
WHEREAS, Nanometrics agrees to assume and become responsible for, and indemnify
PruTech and its affiliates from and against, all liabilities of PruTech relating
to such technology, upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the premises and the mutual promises herein
made, and in consideration of the representations, warranties and covenants
herein contained, the Parties agree as follows.
1. Basic Transaction.
(a) Purchase and Sale of Assets. Upon the terms and subject to the conditions of
this Agreement, at the Closing, Nanometrics agrees to purchase and acquire from
PruTech, and PruTech agrees to sell, assign, transfer, convey and deliver to
Nanometrics:
(i) all of PruTech's right, title and interest in and to, if and to the extent
of any interest of PruTech in, all patents and patent rights owned or licensed
by PruTech relating to Metra, including the following patents (the "Patents"):
U.S. Patent No. 5,214,492 "Apparatus for Producing an Accurately Aligned
Aperture of Selectable Diameter," Issued May 25, 1993 and U.S. Patent 5,308,036
"Kinematics Isolation Stand Connector," Issued May 3, 1994. The term "patents"
includes, if and to the extent of any interest of PruTech in, U.S. and foreign
patents, patent applications, disclosures and inventions of PruTech
relating to Metra, if any, and includes, if and to the extent of any interest
of PruTech in, improvements, continuations, continuations-in-part, divisions
and reissues thereof;
(ii) all of PruTech's right, title and interest in and to, if and to the extent
of any interest of PruTech in, any trademarks and service marks relating to
Metra, including the following trademarks (the "Trademarks"): "METRA," Federal
Registration No. 1,678,055, registered March 3, 1992;
(iii) if and to the extent of any interest of PruTech in, any copyrights, mask
work rights, trade secrets or other intellectual property rights in or related
to Metra and related software/firmware, and all improvements thereof, including
U.S. Copyright Registration 3,066,650 (the "Copyrights");
(iii) if and to the extent of any interest of PruTech in, all confidential or
proprietary ideas, concepts, methods, systems, procedures, inventions, software
and other proprietary rights owned by PruTech which relate to Metra as more
fully described on Schedule I hereto (the "Technology"),
(iv) PruTech's rights under the Amended and Restated Base Technology License
Agreement dated April 11, 1989 between PruTech and OSI (the "Base Technology
Agreement") and
(v) PruTech's rights under the License Agreement, dated as of April 26, 1993
among PruTech, LAM Research Corporation and OSI (the "LAM Agreement") (the
Patents, the Trademarks, the Copyrights, the Technology, the Base Technology
Agreement and the LAM Agreement being collectively referred to herein as the
"Acquired Assets").
THE ACQUIRED ASSETS ARE BEING SOLD ON AN "AS-IS, WHERE-IS" BASIS, AND PRUTECH
MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AT LAW OR IN EQUITY, IN
RESPECT OF THE ACQUIRED ASSETS, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO
TITLE, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ANY SUCH
REPRESENTATIONS OR WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
Nanometrics acknowledges that the Patents, Trademarks and Copyrights have lapsed
due to the failure to pay maintenance fees. Nanometrics agrees to assume
responsibility for payment of such maintenance fees and curing such lapse. In
the event payment of such fees does not cure the lapse of any of the Patents,
Trademarks or Copyrights, Nanometrics agrees that PruTech shall have no
liability to Nanometrics whatsoever. In addition, Nanometrics acknowledges that
as of the date hereof PruTech does not have rights to patents, other than the
Patents listed on Schedule I, any Trademarks relating to Metra or Copyrights
relating to the Metra. If and when OSI assigns any of its rights to Metra
related Patents, Trademarks or Copyrights to PruTech, PruTech agrees
2
to promptly assign the same to Nanometrics. However, PruTech shall have no
liability to Nanometrics whatsoever for the failure of OSI to assign any such
rights to PruTech.
(b) Assumption of Liabilities. Upon the terms and subject to the conditions of
this Agreement, at the Closing, Nanometrics agrees to assume and become
responsible for all liabilities arising from and after the Closing Date (a) with
respect to the Patents, the Trademarks and the Copyrights, (b) relating to the
Technology, (c) relating to the Base Technology Agreement, (d) relating to the
LAM Agreement and (e) for transfer, sales, use and other similar taxes arising
in connection with the consummation of the transactions in connection therewith;
provided, however, Nanometrics shall not be liable for any taxes based on
PruTech's net income or gain related to this transaction (all being hereinafter
referred to as the "Assumed Liabilities"). Other than as expressly set forth
above in this Section 1(b) and in Section 2, Nanometrics shall have no liability
to PruTech whatsoever.
(c) The Closing. The closing of the transactions contemplated by this Agreement
(the "Closing") shall take place at the offices of Ungaretti & Harris commencing
at 9:00 a.m. local time on March 30, 1998, or such other date or place as the
Parties may mutually determine (the "Closing Date").
(d) Deliveries at the Closing. At the Closing, (i) PruTech will execute,
acknowledge (if appropriate) and deliver to Nanometrics (A) an instrument of
assignment, assumption and amendment to the Agreement for License or Sale of
Technology dated December 31, 1985 as amended, (B) assignments of PruTech's
right, title and interest in and to the Patents, the Trademarks and the
Copyrights, if any, and (C) a Bill of Sale for the Technology; and (ii)
Nanometrics will execute and deliver to PruTech and OSI (A) the Assignment and
Assumption Agreement and (B) the written consent of LAM Research Corporation
to the transactions contemplated herein. Nanometrics will deliver or cause to
be delivered to PruTech the consideration specified in Section 2 below. The
expenses for all filings by Nanometrics with the U.S. Patent and Trademark
Office shall be borne by Nanometrics.
2. Purchase Price. On the Closing Date, Nanometrics shall pay PruTech $166,000
payable by wire transfer or certified check.
3. Pre-Closing Covenants. The Parties agree as follows with respect to the
period between the execution of this Agreement and the Closing.
(a) Notices and Consents. PruTech will give any notices to third parties, and
PruTech will use commercially reasonable efforts to obtain the third party
consents described in Schedule 2 hereof.
3
4. Miscellaneous.
(a) Further Assurances. After the Closing, each of the Parties shall from time
to time, at the request of the other Party and at the sole cost and expense of
the requesting Party, execute and deliver such other instruments of conveyance
and transfer and take such other actions as the requesting Party may reasonably
request in order to more effectively consummate the transactions contemplated
hereby.
(b) Entire Agreement. This Agreement constitutes the entire agreement between
the Parties and supersedes any prior understandings, agreements or
representations by or between the Parties, written or oral, to the extent they
relate in any way to the subject matter hereof.
(c) Succession and Assignment. This Agreement shall be binding upon and inure to
the benefit of the Parties named herein and their respective successors and
permitted assigns.
(d) Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original but all of which together will constitute one and
the same instrument.
(e) Headings. The section headings contained in this Agreement are inserted for
convenience only and shall not affect in any way the meaning or interpretation
of this Agreement.
(f) Notices. Any notice provided for in this Agreement must be in writing and
must be either (a) personally delivered, (b) mailed by registered or certified
first class mail, prepaid with return receipt requested, or (c) sent by a
recognized overnight courier service, to the recipient at the address below
indicated or (d) by facsimile which is confirmed in writing by sending a copy of
such facsimile to the recipient thereof pursuant to clause (a) or (c) above:
If to PruTech:
PruTech Research and Development Partnership II
c/o Specialty Finance
One Seaport Plaza, 28th Floor
New York, New York 10292-0128
(212) 214-1467 (telecopier)
Attention: Brian Martin
4
If to Nanometrics:
Nanometrics Incorporated
310 De Guigne Drive
Sunnyvale, California 94086
(408) 720-0196 (telecopier)
Attention: President
or such other address or to the attention of such other person as the
recipient Party shall have specified by prior written notice to
the sending Party. Any notice under this Agreement will be deemed to have been
given (w) on the date such notice is personally delivered, (x) four (4) days
after the date of mailing if sent by certified or registered mail, (y) one (1)
day after the date such notice is delivered to the overnight courier service if
sent by overnight courier or (z) with respect to facsimiles, on the earlier of
one (1) day after the date such facsimile is delivered to the overnight courier
for confirmation or confirmation by telephone to the number designated herein;
provided that in each case notices received after 4:00 p.m. (local time of the
recipient) shall be deemed to have been duly given on the next business day.
(g) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without giving effect to any
choice or conflict of law provision or rule (whether of the State of California
or any other jurisdiction).
(h) Amendments and Waivers. No amendment of any provision of this Agreement
shall be valid unless the same shall be in writing and signed by Nanometrics and
PruTech.
(i) Severability. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction.
(j) Expenses. Each of Nanometrics and PruTech will bear its own costs and
expenses (including legal fees and expenses) incurred in connection with this
Agreement and the transactions contemplated hereby.
5
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by an officer thereunto duly authorized as of the date first above written.
PRUTECH RESEARCH AND DEVELOPMENT
PARTNERSHIP II
By: R & D FUNDING CORP,
its General Partner
By: /s/ Brian J. Martin
---------------------
Name: Brian J. Martin
Title: President, Chief Executive Officer and
Chairman of the Board of Directors
PRUTECH PROJECT DEVELOPMENT
PARTNERSHIP
By: R & D FUNDING CORP,
its General Partner
By: /s/ Brian J. Martin
---------------------
Name: Brian J. Martin
Title: President, Chief Executive Officer and
Chairman of the Board of Directors
NANOMETRICS INCORPORATED
By: /s/ Vincent J. Coates
---------------------
Name: Vincent J. Coates
Title: Chief Executive Officer
6
SCHEDULE 1
Metra Technology
The Metra product line of automatic critical dimension and overlay registration
measurement systems, as generally described in OSI's Brochure No. 5K 12/96,
including, but not limited to, the following technology:
1. Video Measurement System including:
Digital CCD camera, full frame 8-bit digitizer, video processing for automatic
focus, computer controlled illumination, software including: measurement, focus,
and illumination control windows, overlay measurement using Revision II of OSI's
Digital Image Folding technology, dual axis measurements without image rotation,
statistics, program creation and editing, macro metrology algorithms,
programmable I/O control functions, diagnostics.
2. Automatic Pattern Recognition System including:
Dedicated digitizer for X, Y and theta alignment, user-definable global and site
alignment targets.
3. Optical System including:
Reichert Polylite optical head, 150 watt xcnon illumination system, automated
two-place-fixed-position objective mount with 2.5X and 50X objectives, automated
two-position aperture mount, automated two-position intermediate magnification
changer with 2X and 4X lenses, active air vibration isolation.
4. LaserLine Autofocus including:
Solid state laser diode, LaserLine imaging system, Z-axis drive mechanism, focus
offset capability, Z-graph software.
5. Robotic Wafer Handling including:
Pick-and-place robot, dual end-effector, non-contact pre-aligner, 4" through 8"
wafer capability, two cassette positions, notch, major/minor flat capability.
6. Motorized Programmable X, Y Precision Stage including:
8" x 8" travel, crossed roller bearings, closed-loop Heidenhain linear scales
and encoders, 0.25 micron resolution.
7
7. Micropositioning Z Stage including:
Pneumatically controlled air flexure chuck.
8. Operator Interface including:
14" B/W video image display, 14" color text display, full ASCII keyboard for
system setup and programming, joystick stage control.
9. System Electronics including:
90 Mhz Pentium computer, 8Mbyte RAM, 540Mbyte hard disk drive, 3-1/2" floppy
disk drive, 250mb tape back-up, 2 RS-232C serial interface ports, 2 parallel
ports, STD bus computer with 8088 processor.
10. Metra System Analysis Software.
11. Clean Environment:
Equipped with a fully contained Class I Laminar Flow System. This provides a
clean environment that is undisturbed by personnel and provides a basis for SMIF
interfacing and bulkhead (through the wall) mounting; and including any addition
product enhancements developed as a part of the Metra product line, including
but not limited to, overlay analysis, operating system and image processing
software as well as electrical mechanical and optical hardware enhancements.
The following two patents are part of the Metra Technology:
U.S. Patent 5,308,036 Kinematic Isolated Stand Connector
U.S. Patent 5,214,492 Apparatus for Producing an Accurately Aligned
Aperture of Selectable Diameter
8