-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, GsXHnyvDKh3r8lzzpaHWlI4nr+wl97VSUsqLgnTJk7nhlpQNpfxEvrRQ9ta2tOfY QuRxS400afMPdfvYKopXMg== 0000898430-96-004649.txt : 19961004 0000898430-96-004649.hdr.sgml : 19961004 ACCESSION NUMBER: 0000898430-96-004649 CONFORMED SUBMISSION TYPE: 10-Q/A PUBLIC DOCUMENT COUNT: 7 CONFORMED PERIOD OF REPORT: 19960331 FILED AS OF DATE: 19961003 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: PLASMA & MATERIALS TECHNOLOGIES INC CENTRAL INDEX KEY: 0000868326 STANDARD INDUSTRIAL CLASSIFICATION: SPECIAL INDUSTRY MACHINERY, NEC [3559] IRS NUMBER: 954054321 STATE OF INCORPORATION: CA FISCAL YEAR END: 0228 FILING VALUES: FORM TYPE: 10-Q/A SEC ACT: 1934 Act SEC FILE NUMBER: 033-94450 FILM NUMBER: 96638925 BUSINESS ADDRESS: STREET 1: 9255 DEERING AVE STREET 2: 222 W. ORANGE GROVE AVE CITY: CHATSWORTH STATE: CA ZIP: 91311 MAIL ADDRESS: STREET 1: 9255 DEERING AVENUE STREET 2: 9255 DEERING AVENUE CITY: SACHATSWORTH STATE: CA ZIP: 91311 10-Q/A 1 FORM 10-Q/A UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 10-Q/A (Mark One) [X] QUARTERLY REPORT PURSUANT SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the quarterly period ended MARCH 31, 1996 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 For the transition period from _______________ to ________________ Commission File Number 0-26482 PLASMA & MATERIALS TECHNOLOGIES, INC. - -------------------------------------------------------------------------------- (Exact name of registrant as specified in its charter) California 95-4054321 ------------------------------- ------------------------------- (State or other jurisdiction of (I.R.S. Employer Identification incorporation or organization) number) 9255 Deering Avenue, Chatsworth, California 91311 --------------------------------------------------------------- (Address of principal executive offices) (818) 886-8000 ---------------------------------------------------- (Registrant's telephone number, including area code) Not Applicable ---------------------------------------------------- (Former name, former address and former fiscal year, if changed since last report) Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter periods that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No --- --- As of March 31, 1996, the total number of outstanding shares of the Registrant's common stock was 8,669,660. The undersigned Registrant hereby amends the following items of its Quarterly Report on Form 10-Q for the quarter ended March 31, 1996, as set forth below: PART II - OTHER INFORMATION --------------------------- Item 6. Exhibits and Reports on Form 8-K. -------------------------------- (a) The following exhibits are included herein:
Exhibit Number Description - ------ ----------- 10.13 Agreement of Limited Partnership of PMT CVD Partners, L.P. (the "CVD Partnership") dated as of March 29, 1996, entered into between CVD, Inc. (the "General Partner") and the limited partners listed therein (the "Limited Partners").* 10.14 Form of Option Agreement, dated as of March 29, 1996, entered into between PMT and certain of the Limited Partners. 10.15 Form of Common Stock Purchase Warrant, dated as of March 29, 1996, entered into between PMT and certain of the Limited Partners. 10.16 Form of Partnership Subscription Agreement, dated as of March 29, 1996, entered into among the Partnership, the General Partner and certain of the Limited Partners. 10.17 Share Subscription and Shareholders Agreement, dated as of March 29, 1996, entered into between the General Partner and the Limited Partners, as the shareholders of the General Partner. 10.18 Research & Development Agreement, dated as of March 29, 1996, entered into between PMT and the CVD Partnership. 10.19 Technology License Agreement, dated as of March 29, 1996, entered into between PMT and the CVD Partnership. 11.1 Computation of Per Share Earnings.* 27.1 Financial Statement Data.*
* Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1996. 2 SIGNATURES ---------- Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. PLASMA & MATERIALS TECHNOLOGIES, INC. Date October 2, 1996 /s/ John W. LaValle ------------------ -------------------------------------------- John W. LaValle Vice President, Chief Financial Officers and Secretary 3 EXHIBIT INDEX -------------
Exhibit Page Number Description Number - ------ ----------- ------ 10.13 Agreement of Limited Partnership of PMT CVD Partners, L.P. (the "Partnership"), dated as of March 29, 1996, entered into between CVD, Inc. (the "General Partner") and the limited partners listed therein (the "Limited Partners"). ........................................... * 10.14 Form of Option Agreement, dated as of March 29, 1996, entered into between PMT and certain of the Limited Partners. ............................................. 10.15 Form of Common Stock Purchase Warrant, dated as of March 29, 1996, entered into between PMT and certain of the Limited Partners. ..................................... 10.16 Form of Partnership Subscription Agreement, dated as of March 29, 1996, entered into among the Partnership, the General Partner and certain of the Limited Partners. .. 10.17 Share Subscription and Shareholders Agreement, dated as of March 29, 1996, entered into between the General Partner and the Limited Partners, as the shareholders of the General Partner .............................................. 10.18 Research & Development Agreement, dated as of March 29, 1996, entered into between PMT and the CVD Partnership. 10.19 Technology License Agreement, dated as of March 29, 1996, entered into between PMT and the CVD Partnership. ..... 11.1 Computation of Per Share Earnings .................... * 27.1 Financial Statement Data ............................. *
* Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1996. 4 EX-10.14 2 FORM OF OPTION AGREEMENT EXHIBIT 10.14 OPTION AGREEMENT This Option Agreement (this "Agreement") is made as of March 29, 1996 by and among Plasma & Materials Technologies, Inc., a California corporation (the "Company"), PMT CVD Partners, L.P., a California limited partnership (the "Partnership"), and _____________________________ (the "Investor"). R E C I T A L S: - - - - - - - - WHEREAS, the Company and the Investor are limited partners of the Partnership pursuant to the Limited Partnership Agreement dated as of the date hereof (the "Partnership Agreement"); and WHEREAS, the Investor wishes to enter into an agreement granting the Company an option to purchase, pursuant to the terms and conditions set forth herein, (i) the Investor's entire limited partnership interest in the Partnership (the "Partnership Interests") and (ii) all of the shares of the common stock of CVD, Inc., a California corporation and the general partner of the Partnership, owned by the Investor (the "GP Shares"). NOW, THEREFORE, in consideration of the mutual covenants expressed herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and intending to be legally bound, the parties agree as follows: A G R E E M E N T: - - - - - - - - - 1. Option. The Investor hereby grants to the Company an exclusive, ------ irrevocable option (the "Option") to purchase all but not less than all of the Partnership Interests and GP Shares now or hereafter beneficially owned or held by the Investor. The Option is exercisable at any time after the date hereof and may be exercised in accordance with the terms of Section 4 hereof, provided that such Option must be exercised prior to March 29, 2001 (the "Option Termination Date"). 2. Exercise Price. Upon exercise of the Option, the aggregate -------------- purchase price for the Partnership Interests and GP Shares held by the Investor (collectively, the "Option Exercise Price") shall be determined by the following formula: EP = CC X (1.40)/T/ EP: Option Exercise Price, which shall, in all circumstances, equal at least 2 X CC CC: Capital Contribution of the Investor to the Partnership T: Period of time commencing on the date of the Investor's Capital Contribution and ending on the Option Closing Date, as defined below, expressed as a fraction of years 3. Form of Payment. The Option Exercise Price (a) shall be net of --------------- the Investor's Percentage Interest (as defined in the Partnership Agreement) multiplied by all royalty amounts, if any, paid to the Partnership by the Company pursuant to the R&D Agreement (as defined in the Partnership Agreement) whether or not such amounts have been distributed to the Investor pursuant to the Partnership Agreement and (b) may be paid in cash, in Common Stock of the Company (the "Common Stock"), or in any combination thereof, at the sole discretion of the Company, provided that any Common Stock delivered to the Investor shall be either registered under the Securities Act of 1933, as amended (the "Act"), or shall be subject to such registration rights and procedures under the Act as may be reasonably acceptable to the Investor. The number of shares of Common Stock to be delivered in payment of all or a portion of the Option Exercise Price shall be determined by (i) dividing the portion of the Option Exercise Price to be paid in shares of Common Stock by (ii) the product of nine-tenths (0.90) multiplied by the Average Stock Price. For purposes of this Section 3, the "Average Stock Price" shall mean the average closing sales prices of Common Stock quoted on Nasdaq National Market or, if then traded on a national securities exchange, the average closing prices of Common Stock on the principal national securities exchange on which listed or, if quoted on the Nasdaq over-the-counter system, the average of the mean of the closing bid and asked prices of Common Stock quoted on such system, in any such case on each of the ten (10) trading days immediately preceding the Option Closing Date. Any shares of Common Stock paid in connection with the Option Exercise Price will be validly authorized and issued, fully paid and nonassessable and free and clear of any and all liens and encumbrances. 4. Manner of Exercise. The Option may be exercised at any time by ------------------ written notice from the Company to the Investor stating that the Option is being exercised and setting forth: (a) the portion, if any, of the Option Exercise Price to be paid in cash and the portion, if any, of the Option Exercise Price to be paid in Common Stock and (b) the date, not less than ten (10) or more than thirty (30) days after the date the Company gives written notice of the exercise of the Option (the "Exercise Date"), on which the Partnership Interests and GP Shares shall be purchased (the "Option Closing Date"). 5. Transfer of Title; Representations and Warranties. Transfer of ------------------------------------------------- title by the Investor to the Company of the Partnership Interests and GP Shares shall be deemed to 2 occur automatically on the Option Closing Date subject to the payment in full by the Company on such date of the amount owing to the Investor as determined in accordance with Sections 2 and 3 hereof, and, in connection with such transfer of title, the Investor agrees to make such representations and warranties with respect to its title in and to the Partnership Interests and GP Shares as may be requested by the Company. After the Option Closing Date, subject to the payment in full by the Company on such date of the amount owing to the Investor as determined in accordance with Sections 2 and 3 hereof, the Investor shall have no rights whatsoever in connection with the Partnership Interests and GP Shares, other than the right to receive the full Option Exercise Price therefor. 6. Exercisability of Warrants. Commencing on the Option Closing -------------------------- Date, and for a period of one (1) year thereafter, that certain Common Stock Purchase Warrant dated as of any even date herewith (the "Warrant") delivered to Investor in connection with Investor's original capital contribution to the Partnership shall be exercisable pursuant to the terms and conditions set forth therein. 7. Notices. Except as otherwise set forth herein, any notice ------- required or permitted under this Agreement shall be given in writing and shall be deemed effectively given upon personal delivery to the party to be notified or, if sent by telecopier, upon confirmation of transmission, or three (3) days after deposit with the United States Post Office, by registered or certified mail, or one (1) day after deposit with an overnight air courier, in each case postage prepaid and addressed to the party to be notified at the addresses and facsimile numbers set forth on the signature page hereof, or at such other address as such party may designate by ten (10) days' advance written notice to the other parties to this Agreement. 8. Governing Law. This Agreement shall be governed by and construed ------------- in accordance with the laws of the State of California. 9. Specific Performance. The parties hereto hereby agree that the -------------------- breach of any of the terms of this Agreement will cause irreparable injury for which an adequate remedy at law is not available. Accordingly, the parties hereto agree that each such party shall be entitled to specifically enforce any of the provisions hereof by means of injunctive or other equitable relief, which relief shall be in addition to any other remedies at law or in equity that may be available to such party. 10. Entire Agreement. This Agreement, along with the Partnership ---------------- Agreement, the Subscription Agreement (as defined in the Partnership Agreement), the Warrant, the R&D Agreement, the License Agreement (as defined in the Partnership Agreement) and that certain Share Subscription and Shareholders Agreement dated as of an even date herewith among CVD, Inc., the Investor and certain other parties thereto, constitute the entire agreement among the parties with respect to the subject matter hereof 3 and thereof and supersede any and all prior agreements and understandings of the parties, whether written or oral, in connection therewith. 11. Counterparts. This Agreement may be executed in any number of ------------ counterparts, each of which shall be an original, but all of which taken together shall constitute one agreement. 12. Termination. This Agreement, and the Option granted hereunder, ----------- shall terminate and have no further force or effect on the Option Termination Date. 4 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first above written. COMPANY: PLASMA & MATERIALS TECHNOLOGIES, INC. By: --------------------------- Dr. Gregor A. Campbell President and Chief Executive Officer Address: 9255 Deering Avenue Chatsworth, California 91311 Attention: Dr. Gregor A. Campbell Facsimile No.: (818) 886-8098 PARTNERSHIP: PMT CVD PARTNERS, L.P. By: CVD, Inc., General Partner By: -------------------- John W. La Valle Chief Financial Officer and Secretary Address: 9255 Deering Avenue Chatsworth, California 91311 Attention: Mr. John W. La Valle Facsimile No.: (818) 886-8098 [Signatures continued on following page] 5 [Signatures continued from previous page] INVESTOR: ________________________ Address: ________________________ ________________________ ________________________ 6 EX-10.15 3 FORM OF COMMON STOCK PURCHASE WARRANT EXHIBIT 10.15 THE SECURITIES EVIDENCED BY THIS WARRANT OR ISSUABLE UPON EXERCISE HEREOF HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED, ASSIGNED OR OTHERWISE ENCUMBERED OR DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS. Warrant No.___ March 29, 1996 COMMON STOCK PURCHASE WARRANT THIS CERTIFIES THAT, for value received, _____________________ and permitted assigns ("Warrantholder"), is entitled to purchase from Plasma & Materials Technologies, Inc., a California corporation (the "Company"), on the terms and conditions contained herein, _________________________ shares of the Company's Common Stock, no par value per share (the "Common Stock"), at a price of Twelve Dollars and Seventy-Five Cents ($12.75) per share (the "Warrant Price"). 1. Exercisability of Warrant. This Warrant shall become exercisable ------------------------- in full immediately following the date of exercise (the "Exercise Date") of the option by the Company pursuant to that certain Option Agreement dated as of an even date herewith (the "Option Agreement") among the Company, Warrantholder and PMT CVD Partners, L.P., a California limited partnership, and shall terminate and expire in accordance with Section 8 below. 2. Method of Exercise; Payment; Issuance of New Warrant; Transfer and ------------------------------------------------------------------ Exchange. Following the Exercise Date, this Warrant may be exercised by - -------- Warrantholder, in whole or in part, by the surrender of this Warrant, properly endorsed, at the principal office of the Company at 9255 Deering Avenue, Chatsworth, California 91311, and by (a) the payment to the Company of the then applicable Warrant Price of the Common Stock being purchased and (b) delivery to the Company of a customary investment letter executed by Warrantholder, confirming that the shares of Common Stock being purchased are being acquired for Warrantholder's own account and not with a view to or for sale in connection with any distribution of such shares, acknowledging securities law restrictions applicable to such shares, and agreeing that certificates evidencing such shares shall bear a legend accordingly restricting the transfer of such shares. In the event of any exercise of the rights represented by this Warrant, certificates for the shares of Common Stock so purchased shall be delivered to Warrantholder within a reasonable time after the rights represented by this Warrant shall have been so exercised, and unless this Warrant has expired, a new Warrant representing the number of shares of Common Stock, if any, with respect to which this Warrant shall not then have been exercised, shall also be issued to Warrantholder within such time. In lieu of exercising this Warrant for a specified number of shares of Common Stock (the "Exercised Shares") and paying the aggregate Warrant Price therefor (the "Exercise Price"), Warrantholder may elect, at any time after the Exercise Date and prior to the expiration of this Warrant, to receive a number of shares of Common Stock equal to the the number of Exercised Shares minus that number of shares of Common Stock having an aggregate Fair Market Value equal to the Exercise Price. Following such election, the number of shares of Common Stock covered by this Warrant shall be deemed automatically reduced by the number of Exercised Shares. For purposes of this Warrant, the "Fair Market Value" shall mean the closing sales prices of Common Stock quoted on Nasdaq National Market or, if then traded on a national securities exchange, the average closing prices of Common Stock on the principal national securities exchange on which listed or, if quoted on the Nasdaq over-the-counter system, the average of the mean of the closing bid and asked prices of Common Stock quoted on such system, in any such case on each of the ten (10) trading days immediately preceding the date of such conversion. 3. Stock Fully Paid; Reservation of Shares. The Company covenants --------------------------------------- and agrees that all shares of Common Stock that may be issued upon the exercise of the rights represented by this Warrant will, upon issuance, be fully paid and nonassessable and free from all liens. The Company covenants and agrees that, during the period within which the rights represented by this Warrant may be exercised, it shall reserve for the purpose of the issuance upon exercise of the purchase rights evidenced by this Warrant, at least the maximum number of shares of Common Stock as are issuable upon the exercise of the rights represented by this Warrant. 4. Restrictions on Transferability of Securities; Compliance with -------------------------------------------------------------- Securities Act. - -------------- (a) Restrictions on Transferability. This Warrant and the shares ------------------------------- of Common Stock issuable hereunder shall not be transferable except upon the conditions specified in this Section 4, which conditions are intended to insure compliance with the provisions of the Securities Act of 1933, as amended (the "Securities Act"). Each holder of this Warrant or the Common Stock issuable hereunder will cause any proposed transferee of the Warrant or such Common Stock to agree to take and hold such securities subject to the provisions and upon the conditions specified in this Section. (b) Restrictive Legend. Each certificate representing (i) this ------------------ Warrant, (ii) the shares of Common Stock issued upon exercise of the Warrant and (iii) any other securities issued in respect of such shares of Common Stock upon any stock split, stock dividend or similar event (collectively, the "Restricted Securities"), shall (unless otherwise permitted by the provisions of Section 4(c) below or unless such securities have been registered under the Securities Act) be imprinted with the following legend, in addition to any legend required under applicable state securities laws: 2 THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED FOR INVESTMENT PURPOSES ONLY AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR ANY STATE SECURITIES LAWS. SUCH SECURITIES MAY NOT BE SOLD, TRANSFERRED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT AND ANY APPLICABLE STATE SECURITIES LAWS. Upon request of a holder of a certificate with such legend imprinted thereon, the Company shall remove the foregoing legend therefrom or, if appropriate, issue to such holder a new certificate therefor free of any transfer legend, if, with such request, the Company shall have received either the opinion referred to in Section 4(c)(i) or the "no-action" letter referred to in Section 4(c)(ii) to the effect that any transfer by such holder of the securities evidenced by such certificate will be exempt from the registration and/or qualification requirements of, and that such legend is not required in order to establish compliance with the Securities Act, and if applicable, any state securities laws under which transfer restrictions on such securities had been previously imposed. (c) Notice of Proposed Transfers. The holder of each certificate ---------------------------- representing Restricted Securities by acceptance thereof agrees to comply in all respects with the provisions of this Section 4(c). Prior to any proposed transfer of any Restricted Securities, the holder thereof shall give written notice to the Company of such holder's intention to effect such transfer. Each such notice shall describe the manner and circumstances of the proposed transfer in sufficient detail, and shall be accompanied by either (i) an unqualified written legal opinion addressed to the Company from counsel who shall be reasonably satisfactory to such parties, which opinion shall be reasonably satisfactory in form and substance to such parties' legal counsel, to the effect that the proposed transfer of the Restricted Securities may be effected without registration under the Securities Act and any applicable state securities laws, or (ii) a "no-action" letter from the Securities and Exchange Commission (and any necessary state securities administrator) to the effect that the transfer of such securities without registration will not result in a recommendation by the staff of the Commission (or such administrators) that action be taken with respect thereto, whereupon the holder of such Restricted Securities shall be entitled to transfer such Restricted Securities in accordance with the terms of the notice delivered by the holder to the Company. Each certificate evidencing the Restricted Securities transferred as above provided shall bear the appropriate restrictive legend set forth in Section 4(b) above. 5. Adjustment of Purchase Price and Number of Shares of Common ----------------------------------------------------------- Stock. The number and kind of securities purchasable upon the exercise of this - ----- Warrant and the Warrant Price shall be subject to adjustment from time to time upon the happening of certain events, as follows: 3 (a) Consolidation, Merger, Reorganization, Etc. If the Company at ------------------------------------------ any time while this Warrant remains outstanding and unexpired shall consolidate with or merge into any other corporation, reorganize, or reclassify, or in any manner change the securities then purchasable upon the exercise of this Warrant, then upon consummation thereof this Warrant shall thereafter represent the right of Warrantholder to receive, to the extent this Warrant is exercisable as provided above in Section 1, in lieu of shares of Common Stock, the cash or securities to which Warrantholder would have been entitled upon consummation thereof if Warrantholder had exercised this Warrant immediately prior thereto. Upon any such event, an appropriate adjustment shall be made to the Warrant Price, if necessary in the good faith judgment of the Board of Directors of the Company, to preserve the economic benefit intended to be conferred upon Warrantholder in accordance with its terms. (b) Subdivision or Combination of Shares; Dividends and --------------------------------------------------- Distribution of Common Stock. If the Company at any time shall subdivide or - ---------------------------- combine its Common Stock, or take a record of the holders of its Common Stock for the purpose of entitling them to receive without payment a dividend payable in, or other distribution of, Common Stock or other securities, then the number of shares of Common Stock purchasable hereunder shall be adjusted to that number determined by multiplying the number of shares purchasable upon the exercise of this Warrant immediately prior to such adjustment by a fraction (i) the numerator of which shall be the total number of shares of Common Stock outstanding immediately after such subdivision, combination, dividend or distribution, and (ii) the denominator of which shall be the total number of shares of Common Stock outstanding immediately prior to such subdivision, combination, dividend or distribution. Additionally, the Warrant Price shall be adjusted to that price determined by multiplying the Warrant Price in effect immediately prior to such subdivision, combination, dividend or distribution by a fraction (x) the numerator of which shall be the total number of shares of Common Stock outstanding immediately prior to such subdivision, combination, dividend or distribution, and (y) the denominator of which shall be the total number of shares of Common Stock outstanding immediately after such subdivision, combination, dividend or distribution. 6. Fractional Shares. No fractional shares of Common Stock will be ----------------- issued in connection with any exercise hereunder but in lieu of such fractional shares, the Company shall make a cash payment therefor upon the basis of the fair market value of the Common Stock on the date of such exercise. 7. Governing Law. This Warrant shall be construed and enforced in ------------- accordance with, and the rights of the parties shall be governed by, the laws of the State of California. 4 8. Expiration of Warrant. This Warrant shall terminate and expire --------------------- and shall no longer be exercisable on or after the date that is one (1) year from the Exercise Date. IN WITNESS WHEREOF, this Warrant has been duly executed and issued by a duly authorized officer of the Company as of this 29th day of March, 1996. PLASMA & MATERIALS TECHNOLOGIES, INC., a California corporation By: -------------------------- Dr. Gregor A. Campbell President and Chief Executive Officer 5 FORM OF SUBSCRIPTION -------------------- (To be signed only upon exercise of Warrant) To the Company: The undersigned, the holder of the within Warrant, hereby irrevocably elects to exercise the purchase right represented by such Warrant for, and to purchase thereunder, __________________________ (______) of the number of shares of Common Stock purchasable under this Warrant and herewith makes payment of ____________ Dollars ($______) therefor, and requests that a certificate(s) for such shares be issued in the name of, and delivered to, ______________________, whose address is _______________________________________________________________ _______________. The undersigned represents that it is acquiring such shares of Common Stock for its own account for investment purposes only and not with a view to or for sale in connection with any distribution thereof. DATED: --------------- ------------------------------------------ (Signature must conform in all respects to name of holder as specified on the face of the Warrant) ------------------------------------------ ------------------------------------------ (Address) 6 EX-10.16 4 FORM OF PARTNERSHIP SUBSCRIPTION AGREEMENT EXHIBIT 10.16 PARTNERSHIP SUBSCRIPTION AGREEMENT THIS PARTNERSHIP SUBSCRIPTION AGREEMENT (this "Agreement") is entered into as of March 29, 1996 by and among PMT CVD Partners, L.P., a California limited partnership (the "Partnership"), and ________________ (the "Investor"). R E C I T A L S: - - - - - - - - A. The Partnership was recently formed and will be governed in accordance with the terms and conditions of that certain Agreement of Limited Partnership dated as of an even date herewith (the "Partnership Agreement") and entered into by and among the Partnership, the Investor and certain other investors in the Partnership. B. The Investor wishes (i) to invest the amount of capital set forth opposite its name on the signature page hereto (the "Investor's Capital Investment") and (ii) to subscribe for and acquire Interests, in each case pursuant to the terms of the Partnership Agreement. To induce the Investor to make such capital investment, CVD, Inc., a California corporation and the general partner of the Partnership (the "General Partner"), has agreed to make the representations and warranties set forth herein. C. The Company wishes to facilitate the investment by Investor in the Partnership and all transactions arising therefrom or relating thereto by making the representation and warranty contained herein. D. Capitalized terms not otherwise defined herein shall have the meanings therefor as set forth in the Partnership Agreement. A G R E E M E N T: - - - - - - - - - NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Closing. On the Closing Date, the Investor will wire transfer the ------- Investor's Capital Investment to an account designated by the General Partner, following receipt by the Investor of a Partnership Agreement that has been executed by the General Partner on behalf of the Partnership. 2. Representations and Warranties; Investor Acknowledgement; General ----------------------------------------------------------------- Partner Covenants. - ----------------- 2.1 The Investor. The Investor represents and warrants to the ------------ Partnership that: (a) The Investor's Interests are being acquired for investment purposes only, for its own account, without a view to the distribution or sale thereof. (b) This Agreement and the Partnership Agreement have been duly authorized, executed and delivered by the Investor and constitute the valid and legally binding agreements of the Investor, enforceable against the Investor in accordance with their respective terms, except to the extent that such enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights in general or by general principles of equity. (c) No portion of the assets invested by the Investor in the Partnership consists of assets of an employee benefit plan subject to Title I of ERISA. 2.2 Investor Acknowledgement. The Investor acknowledge that the ------------------------ Partnership may allocate to the Investor income that, for federal income tax purposes with respect to certain tax exempt entities, may be considered unrelated taxable business income under Sections 511 through 514 of the Code. 2.3 The General Partner. The General Partner represents and ------------------- warrants to the Investor that: (a) The Partnership is a duly organized and validly existing limited partnership under the laws of the State of California with full partnership power and authority to conduct its business as contemplated in the Partnership Agreement and the Partnership will be treated as a partnership for federal income tax purposes. (b) The General Partner is a corporation duly organized and validly existing and in good standing under the laws of the State of California. (c) This Agreement and the Partnership Agreement have been duly authorized, executed and delivered by the General Partner and, upon due execution and delivery by the Investor, will constitute the valid and legally binding agreements of each of the Partnership and the General Partner, enforceable against such parties in accordance with their respective terms, except to the extent that such enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights in general or by general principles of equity. 2 (d) Each of the General Partner and the Partnership (i) is a "small concern," as such term is defined in 13 C.F.R. (S)107.3, and (ii) complies with all applicable size standards set forth in 13 C.F.R. (S)121.802. 2.4 Company Representation and Warranty. The Company represents ----------------------------------- and warrants to the Investor that it has furnished or made available to the Investor all material information reasonably necessary for the Investor to consider in making its investment in the Partnership, and the Company has not furnished to the Investor any such information and has not made any representations (oral or written) which are incorrect in any material respect or failed to furnish any additional information necessary to make the information so furnished not misleading in any material respect. 2.5 General Partner Covenants. The General Partner covenants and ------------------------- agrees as follows: (a) On the Closing Date, the General Partner shall, with respect to each of the Partnership and the General Partner, deliver (i) an executed copy of SBA Form 480 - Size Status Declaration, (ii) an executed copy of SBA Form 652 - Assurance of Compliance for Nondiscrimination and (iii) the information needed to complete Part A of SBA Form 1031 - Portfolio Financing Report, to the Limited Partners requesting such information. (b) The Partnership covenants and agrees that it will use the proceeds from the sale of the Interests for research and development with respect to the Business and for general working capital purposes of the Partnership. The Partnership will provide all Limited Partners requesting such information with reasonable access to the Partnership's financial records so as to allow such Limited Partners to confirm that such proceeds were used in the manner contemplated by this Agreement, such access to include a review by the Limited Partners of the use of proceeds within ninety (90) days after the date hereof. The Partnership acknowledges and agrees that, if the proceeds are not used in the manner contemplated hereby, the Limited Partners shall have the right to demand the immediate repayment thereof. 3. Miscellaneous. ------------- 3.1 Choice of Law. This Agreement shall be governed by the laws of ------------- the State of California. 3.2 Counterparts. This Agreement may be executed in any number of ------------ counterparts with the same effect as if all parties had signed the same document. All such counterparts shall be deemed an original and shall be construed together to constitute one and the same instrument. 3 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date first written above. PARTNERSHIP: PMT CVD PARTNERS, L.P. By: CVD, Inc., General Partner By: ---------------------- John W. La Valle Chief Financial Officer and Secretary INVESTOR: By: -------------------------- Investor's Capital Investment: 4 EX-10.17 5 SHARE SUBSCRIPTION AND SHAREHOLDERS AGREEMENT EXHIBIT 10.17 SHARE SUBSCRIPTION AND SHAREHOLDERS AGREEMENT THIS SHARE SUBSCRIPTION AND SHAREHOLDERS AGREEMENT (this "Agreement") is made and entered into as of March 29, 1996 among CVD, Inc., a California corporation (the "Company"), and each person listed on the signature page hereto (each, a "Shareholder" and, collectively, the "Shareholders"). R E C I T A L S: - - - - - - - - A. The Shareholders wish to subscribe for shares of the Company and the Company wishes to issue Shares (as defined below) to the Shareholders, as set forth herein. B. The Company and the Shareholders deem it to be in their best interests to enter into this Agreement with respect to the regulation of certain aspects of the relationship among the parties. A G R E E M E N T: - - - - - - - - - NOW, THEREFORE, in consideration of the foregoing and the mutual covenants contained herein, and for such other consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. Subscription for Shares. Upon the terms and subject to the ----------------------- conditions contained herein and in reliance on the representations and warranties set forth below, each Shareholder hereby subscribes for that number of shares (the "Shares") of the Company's common stock, no par value per share (the "Common Stock"), as is set forth opposite such Shareholder's name on Schedule 1 hereto, at a purchase price of $0.10 per share. On receipt of a cash payment in the amount set forth opposite each Shareholder's name on Schedule 1, the Company agrees to issue to each such Shareholder a share certificate evidencing the Shares subscribed for thereby. 2. Representations and Warranties of the Company. The Company --------------------------------------------- represents and warrants to each Shareholder as follows: 2.1 Organization. The Company is a corporation duly organized, ------------ validly existing and in good standing under the laws of the State of California. 2.2 Authorization and Enforceability. This Agreement has been -------------------------------- duly executed and delivered by the Company and constitute the legal, valid and binding obligation of the Company, enforceable against it in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other laws affecting the enforcement of creditors' rights generally or by general equitable principles. 2.3 Capitalization. The total authorized capital stock of the -------------- Company consists of 1,000 shares of Common Stock. On issuance pursuant to the terms hereof, all shares of Common Stock will be duly authorized and validly issued, fully paid and nonassessable, free of any preemptive or other similar rights to subscribe for or to purchase any shares of capital stock of the Company. 3. Representations and Warranties of Each Shareholder. Each -------------------------------------------------- Shareholder represents and warrants to the Company on its own behalf as follows: 3.1 Investment Intent. Each Shareholder is acquiring its Shares ----------------- for investment purposes only, for its own account, and not as nominee or agent for any other person, firm or corporation and not for resale in connection with any distribution or public offering thereof within the meaning of the Securities Act of 1933, as amended (the "Securities Act"). 3.2 Unregistered Securities. Each Shareholder understands that ----------------------- the Shares have not been registered under the Securities Act, and that, accordingly, such securities will not be transferable except pursuant to an exemption from the registration and prospectus delivery requirement of the Securities Act or upon satisfaction of such requirement. Each Shareholder further acknowledges that the Shares will be subject to the transfer restrictions set forth in Section 7 below and further acknowledges and agrees that the certificates evidencing such Shares and each certificate issued in exchange thereof will bear a legend indicating all restrictions on transfer. 3.3 Sophistication and Knowledge. Each Shareholder represents to ---------------------------- the Company that it is an "accredited investor" (as such term is defined in Rule 501 of Regulation D under the Securities Act) and that, by reason of its business and financial experience, has such knowledge, sophistication and experience in business and financial matters so as to be capable of evaluating the merits and risks of an investment in the Shares and is able to bear the economic risk of such investment. Each Shareholder acknowledges that it has been given the opportunity to ask questions and receive answers from the Company concerning the terms and conditions of the transactions contemplated hereby and the accuracy of the information contained in any document provided to such Shareholder by the Company. 3.4 Authorization and Enforceability. This Agreement has been -------------------------------- duly executed and delivered by the Shareholders and constitutes a legal, valid and binding obligation thereof, enforceable against it in accordance with its terms, except to the extent that such enforceability may be limited by applicable bankruptcy, insolvency, reorganization or other laws affecting the enforcement of creditors' rights generally or by general equitable principles. 2 4. Shares to Bear Legend. Certificates representing any of the --------------------- Shares shall bear substantially the following legend: "THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER AND OTHER RESTRICTIONS CONTAINED IN THAT CERTAIN SHAREHOLDERS AGREEMENT DATED AS OF MARCH 29, 1996 ("THE AGREEMENT") AND MAY NOT BE SOLD, PLEDGED, TRANSFERRED, ENCUMBERED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE THEREWITH. A COPY OF THE AGREEMENT IS ON FILE AT THE OFFICES OF THE COMPANY AND MAY BE OBTAINED WITHOUT CHARGE UPON WRITTEN REQUEST TO THE COMPANY." 5. Board of Directors. The parties hereto agree that the Board of ------------------ Directors will be constituted as provided in this Section 5 and the provisions of this Section 5 shall continue until the fifth (5th) anniversary hereof. Each Shareholder covenants and agrees that it will vote all of its Shares so as to provide, and the Company will use its best efforts to cause, the Board to be comprised of four (4) members. The initial Board will consist of the following members: one (1) member will be designated in writing by the Company, one (1) member will be designated in writing by Plasma & Materials Technologies, Inc., a California corporation and a Shareholder ("PMT"), and two (2) members will be designated by a vote of a majority of the Shareholders holding at least sixty- seven percent (67%) of the Shares. The Company agrees to reimburse all reasonable expenses, including travel expenses, incurred by each of the members of the Board in connection with his or her participation thereon. Any vacancy in a directorship may only be filled by the party having the right to designate and elect a member to such vacant position. 6. Corporation Action and Governance. --------------------------------- 6.1 Restrictions. Prior to the consummation of this transaction ------------ and except as otherwise required by law, without the prior approval of Shareholders holding at least eighty-five percent (85%) of the Shares, the Company shall not effect any: (a) merger (including any exchange of capital stock), consolidation, recapitalization, stock-split or liquidation; (b) sale, transfer or other disposition of any of its assets; 3 (c) increase in authorized capital stock, or issuance of any equity security or grant of any right or option to purchase any equity security; (d) change in the nature of the business conducted by it; (e) amendment or restatement of its Articles of Incorporation or bylaws from that in effect on the date hereof; (f) increase or change in the size of the Board; (g) declaration or payment of any dividends or any other distributions on or with respect to the Common Stock, or redeem, purchase or otherwise acquire for value any shares of the Company's capital stock; (h) enter into or become obligated under any agreement to complete any of the foregoing. 7. No Transfer. Each Shareholder acknowledges and agrees that, ----------- during the term of this Agreement, it will not sell, transfer, dispose of or otherwise encumber any Shares held thereby except pursuant to any sale or transfer to PMT pursuant to that certain Option Agreement dated of an even date herewith by and between the Company and each such Shareholder. 8. Amendment. Any amendment, revision or modification of this --------- Agreement shall require the prior written consent of the Company and of each Shareholder. 9. Specific Performance. The parties agree that it is impossible to -------------------- measure in money the damages which will accrue to a party by reason of a failure to perform any of the obligations set forth in this Agreement. Therefore, if any party shall institute any action or proceeding to enforce the terms or alleging a breach of the provisions of this Agreement, in addition to any other remedy available at law, such party may seek specific performance of the terms hereof; and any other party against whom such action or proceeding is brought hereby waives the claim or defense that a remedy at law alone is adequate, and agrees (to the maximum extent permitted by law) to have such provision specifically enforced against it by any court of equity, without the necessity of posting bond or other security against it, and consents to the entry of injunctive relief against it enjoining or restraining any violation or threatened violation of this Agreement. 10. Notices. Unless otherwise provided, any notice required or ------- permitted under this Agreement shall be given in writing and shall be deemed effectively given upon personal delivery to the party to be notified or, if sent by telecopier, upon receipt of confirmation of transmission, or three (3) days after the deposit with the United States Post Office, by registered or certified mail, or one (1) day after the deposit with an overnight air 4 courier, in each case postage prepaid and addressed to the party to be notified at the address indicated for such party on the signature page hereof, or at such other address as such party may designate by ten (10) days' advance written notice to the other parties. 11. Successors and Assigns. Except as otherwise set forth herein, ---------------------- all terms, conditions and obligations of this Agreement shall be binding upon and run in favor of the parties hereto, and their successors and assigns. 12. Counterparts. This Agreement may be executed in multiple ------------ counterparts, each of which shall have the force and effect of an original. 13. Governing Law. This Agreement shall be governed by and construed ------------- in accordance with the laws of the State of California. 14. Termination. This Agreement shall terminate and have no further ----------- force or effect on March 29, 2001. 5 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written. COMPANY: CVD, INC. 9255 Deering Avenue Chatsworth, California 91311 Fax: (818) 886-8098 By: /s/ John W. La Valle ---------------------- John W. La Valle Chief Financial Officer and Secretary SHAREHOLDERS: SBIC PARTNERS, L.P. 201 Main Street, Suite 2302 Fort Worth, Texas 76102 Fax: (817) 338-2047 By: Forrest Binkley & Brown L.P., General Partner By: Forrest Binkley & Brown Venture Co., General Partner By: /s/ Jeffrey J. Brown ----------------------- Jeffrey J. Brown Office of the President [Signatures continued on following page] 6 [Signatures continued from previous page] NORWEST EQUITY PARTNERS, V 3000 Sand Hill Road Building 3, Suite 105 Menlo Park, California 94025 Fax: (415) 854-6652 By: Itasca Partners V, L.L.P., General Partner By: /s/ Kevin G. Hall ------------------- Kevin G. Hall Partner PLASMA & MATERIALS TECHNOLOGIES, INC. 9255 Deering Avenue Chatsworth, California 91311 Fax: (818) 886-8098 By: /s/ Dr. Gregor A. Campbell --------------------------- Dr. Gregor A. Campbell President and Chief Executive Officer R&M PARTNERS/CVD, G.P. 300 South Grand Avenue, Suite 2900 Los Angeles, California 90071 Fax: (213) 229-8550 By: /s/ Jeffrey L. DuRocher ------------------------ Jeffrey L. DuRocher Partner 7 Schedule 1 SHAREHOLDINGS OF SHAREHOLDERS -----------------------------
Name of Shareholder Number of Shares Purchase Price - ------------------- ---------------- -------------- SBIC Partners, L.P. 378 37.80 Norwest Equity Partners, V 378 37.80 Plasma & Materials Technologies, Inc. 197 19.70 R&M Partners/CVD, G.P. 47 4.70 ----- ------- TOTAL: 1,000 $100.00 ===== =======
8 EX-10.18 6 RESEARCH AND DEVELOPMENT AGREEMENT EXHIBIT 10.18 R&D AGREEMENT THIS R&D AGREEMENT (this "Agreement") is entered into as of March 29, 1996 by and between Plasma & Materials Technologies, Inc., a California corporation (the "Company"), and PMT CVD Partners, L.P., a California limited partnership (the "Partnership"). R E C I T A L S: - - - - - - - - A. The Partnership was established to develop and refine chemical vapor deposition ("CVD") technology for commercial use in connection with the production of integrated circuits. B. The Company has substantial technological expertise with respect to the production of integrated circuits and presently employs personnel with significant technical experience in such area, making the Company well positioned to assist the Partnership with the development and refinement of CVD technology and related commercial applications. C. The Partnership wishes to engage the Company to perform CVD research and development efforts for and on behalf of the Partnership, and the Company wishes to accept such engagement on the terms and conditions set forth herein. A G R E E M E N T: - - - - - - - - - 1. Engagement. The Partnership hereby engages the Company to use ---------- commercially reasonable best efforts to develop and refine CVD technology for commercial use in connection with the production of integrated circuits (the "Project"). The Company hereby accepts such engagement, as further set forth herein. 2. Billings. The Company shall bill the Partnership for all costs -------- and expenses directly and indirectly arising from or relating to CVD research and development ("CVD Costs and Expenses"). The Company presently anticipates that such costs and expenses shall be incurred during each calendar year substantially in accordance with the Preliminary Budget set forth on Exhibit A hereto. With respect to 1997 and each subsequent calendar year during the term of this Agreement, the Company shall prepare and present to the Partnership, at least thirty (30) days prior to the commencement of each such year, a revised Preliminary Budget for each such year which shall set forth the costs and expenses which the Company then anticipates to be incurred during each such year. The Company shall promptly notify the Partnership during the term of this Agreement if, at any time, the Company reasonably determines that CVD Costs and Expenses will be incurred in an amount that exceeds by at least twenty percent (20%) the amount set forth in the applicable Preliminary Budget (as so revised) for any given calendar year, and such notice shall include a reasonably detailed report describing the reasons for such contemplated deviation. All billings by the Company shall be sent on a quarterly basis within fifteen (15) days after the close of each calendar quarter and shall cover all CVD Costs and Expenses incurred during the calendar quarter then ended, and the Partnership will reimburse the Company for the amount so billed within fifteen (15) days after invoicing by the Company, provided that, on execution hereof, the Partnership will immediately reimburse the Company for all CVD Costs and Expenses incurred by the Company since January 1, 1996. Notwithstanding anything to the contrary contained herein, in no event shall the aggregate CVD Costs and Expenses reimbursable by the Partnership exceed Six Million Five Hundred Thousand Dollars ($6,500,000), unless otherwise agreed upon in writing by the Company and the Partnership ($6,500,000, or such higher amount so agreed upon, being the "Maximum Commitment Amount"). 3. CVD Costs and Expenses. CVD Costs and Expenses shall include, ---------------------- without limitation, all direct and indirect costs associated with CVD research and development, such as the base salaries of all PMT personnel engaged in CVD research and the Company's average overhead rate with respect to such personnel, which shall not exceed three and one-half times (3.5x) the aggregate of all such base salaries. 4. Staffing. The Company shall staff the engagement described in -------- Section 1 with Company personnel who are familiar with basic CVD technology and who otherwise have training and experience relevant thereto. Additionally, the Company will hire additional personnel, including without limitation, a president and/or general manager, as may be requested from time to time by the Partnership. 5. Development Plan. The Company shall use its commercially ---------------- reasonable best efforts to complete the Project and thereby develop, manufacture and commercialize the Products in accordance with the Development Plan described in Exhibit B, which Development Plan shall be revised and updated quarterly by the Company, if and to the extent reasonably needed, to reflect the actual progress of the Project and additional technical, industry and other data then available to the Company which the Company reasonably believes necessitates such revision. The Company shall provide the Partnership with a written report, within thirty (30) days after the end of each calendar quarter with respect to which billings for CVD Costs and Expenses are rendered hereunder, which shall summarize the progress and/or issues encountered by the Company during the calendar quarter then ended and shall set forth the Company's revisions, if any, to the Development Plan pursuant to this Section 5. 6. Reimbursement of Acquisition Costs and Expenses. During the term ----------------------------------------------- of this Agreement, the Company may determine that the development of CVD technology requires the acquisition or licensing from unaffiliated third parties of existing research, technology or intellectual property rights, including patents and copyrights (collectively, "Third Party Rights"), provided that the acquisition or licensing of such Third Party Rights must not be reasonably anticipated by the Company to impair the Company's ability to complete the Project within the Maximum Commitment Amount. If the Company deems it 2 appropriate to acquire or license such Third Party Rights, such acquisition or licensing will be in the name of the Partnership and the Partnership will reimburse the Company with respect to any and all costs and expenses incurred directly or indirectly by the Company in connection with such acquisition or licensing, including without limitation, the purchase price or license fees for such Third Party Rights and all costs and expenses incidental to the acquisition thereof. Additionally, such rights may be acquired subject to continuing royalty obligations of the Partnership with respect to actual future sales, in which case the Partnership shall execute all necessary documents. 7. Ownership of Work Product. The Partnership shall be the sole and ------------------------- exclusive owner of all inventions, patents, copyrights, trade secrets and all other intellectual property developed or invented by employees, consultants or contractors of the Company pursuant to this Agreement or otherwise resulting from the work performed on behalf of the Partnership by the Company pursuant to this Agreement (all such inventions, patents, copyrights, trade secrets and other intellectual property being herein referred to as the "Partnership Intellectual Property"). If the Company engages any consultants or independent contractors to perform any part of the development work subject to this Agreement, the Company shall obtain such persons' written approval of this provision in advance and will take all steps necessary to ensure that the inventions and works of such consultant or contractor are owned by the Partnership pursuant hereto. The Company shall, with respect to all Partnership Intellectual Property developed on behalf of the Partnership pursuant hereto, take all necessary action to make such applications and filings for, and during the term hereof shall be responsible for maintaining, all patents, copyrights and other rights of the Partnership in and to any and all patentable or copyrightable material constituting part of the Partnership Intellectual Property, to the extent such applications or filings are commercially reasonable and subject to reimbursement of all out-of-pocket expenses incurred by the Company, including without limitation, legal fees and expenses, in making or maintaining such applications or filings. 8. License to Company. As further consideration to the Company ------------------ hereunder, the Partnership hereby grants to the Company, for a term commencing upon the date hereof and continuing through but terminating on March 29, 2001, an exclusive, non-transferable, worldwide and royalty-bearing license, under the Partnership Intellectual Property, to design, develop, manufacture, have manufactured, use, sell, lease or otherwise dispose of any and all CVD products for the manufacture of semiconductors, or any part thereof or spare part therefor. The Company shall pay the Partnership a royalty (the "Royalty") equal to a percentage of the Net Sales Price, as defined below, of any product which uses or incorporates any of the Partnership Intellectual Property for CVD applications (a "Product"), which percentage shall be as follows: for Products delivered to customers in Japan and other countries in Asia (excluding only Korea), two percent (2%) commencing July 1, 1996 and throughout the term of this license; and for Products delivered anywhere else in the world, five percent (5%) for Products sold commencing July 1, 1996 and through December 31, 1997, four and one-half percent (4.5%) for Products sold in calendar 1998, 3 four percent (4%) for Products sold in calendar 1999, and three and one-half percent (3.5%) for Products sold thereafter. Notwithstanding anything contained in this Section 8 to the contrary, no Royalty shall be payable upon the sale of spare parts with respect to any Products then or previously sold. The foregoing license may be sublicensed by the Company, provided that the Company shall be responsible for including all sales of Products by sublicensees for purposes of the reporting and royalty obligations of the Company hereunder (with the same effect as if such sales were made by the Company). 9. Royalty Reports and Payments. ---------------------------- (a) Royalties shall be payable quarterly on or before the last day of April, July, October and January of each year for Products sold during the immediately-preceding calendar quarter ending March, June, September and December, respectively. Each Royalty payment will be accompanied by a report setting forth the calculations of the Royalties paid, including the date, quantity and Net Sales Price of the Products sold. If the Company leases the Products to a third party, then an appropriate Royalty payment shall be made in connection with each receipt of a lease payment by the Company. (b) For purposes of calculating the Royalty, a Product shall be deemed sold at the time the Product is accepted by the customer after delivery to the customer and final payment for the Product is due and payable. If any of the Products are subsequently rejected by a customer, then Royalties paid for such Products will be credited against future Royalties payable. (c) If the Company fails to report or pay any Royalties due under this Section 9, then, if such failure to report or pay is not cured within thirty (30) days after demand therefor by the Partnership, the Partnership may, at its election, upon delivering written notice thereof to the Company, terminate the license granted hereby, in addition to any other remedies that may be available to the Partnership. (d) For purposes of the foregoing, the term "Net Sales Price" shall mean the sales price of Products sold by the Company, excluding all sales and value-added taxes and other similar taxes (other than taxes based upon the income of the Company), insurance charges, customs duties, packaging or shipping charges, cash and other discounts, commissions, specially itemized and non- recurring engineering or similar charges for services performed by the Company, and amounts refunded or credited on returned or rejected Products. 10. Audit. The Company agrees to keep complete and accurate records ----- of all amounts payable by or due to the Partnership hereunder, including all CVD Costs and Expenses and the amount of all Royalties due to the Partnership. The Partnership shall have the right, at its expense and not more than once in each calendar year, to have a certified public accountant of national prominence reasonably acceptable to the Company examine 4 such books and records of the Company as are reasonably necessary for purposes of verifying such amounts, and, among other things, to report compliance or noncompliance with the Royalty obligations of the Company hereunder. If any such audit determines that the Company has under-reported Royalties in any report by more than five percent (5%), or overcharged the Partnership for CVD Costs and Expenses by more than ten percent (10%), then the Company shall reimburse the Partnership for the cost of such audit. Any information obtained in the course of an audit under this Section 10 shall be maintained in confidence by the Partnership and its agents as confidential and proprietary information. 11. Assignment. This Agreement shall be binding upon the ---------- transferees, successors, assigns and legal representatives of the parties hereof. 12. Governing Law. This Agreement shall be governed by and construed ------------- in accordance with the laws of the State of California. 13. Notices. All notices, requests, demands and other communications ------- hereunder shall be in writing and shall be deemed given if delivered personally or if sent by a private courier service of national prominence, or by registered or certified mail, postage prepaid, addressed as follows: If to the Plasma & Materials Technologies, Inc. Company, to: 9255 Deering Avenue Chatsworth, California 91311 Attention: Dr. Gregor A. Campbell With a Riordan & McKinzie copy to: 5743 Corsa Avenue, Suite 116 Westlake Village, California 91362 Attention: Lawrence C. Weeks, Esq. If to the PMT CVD Partners, L.P. Partnership, to: 9255 Deering Avenue Chatsworth, California 91311 Attention: Mr. John W. La Valle With a Cooley Godward Castro Huddleson & copy to: Tatum 3000 Sand Hill Road Building 3, Suite 230 Menlo Park, California 94025 Attention: Mark Tanoury, Esq. 5 14. Counterparts. This Agreement may be executed in counterparts ------------ with the same force and effect as if each of the signatories had executed the same instrument. 15. Term; Termination. This Agreement shall terminate on March 29, ----------------- 2001. This Agreement may be terminated earlier by either party after the delivery of written notice to the other party of a material breach by the other party of any material provision set forth herein, provided that the breaching party shall have thirty (30) days following receipt of such notice to cure such breach, to the reasonable satisfaction of the non-breaching party. No termination of this Agreement shall affect the rights and obligations of the parties arising as of such termination and, notwithstanding anything contained herein to the contrary, (a) if this Agreement is terminated by the Company by reason of the Partnership's breach as provided above, the rights of the Company under Section 8, and its attendant obligations under Section 9, shall become perpetual, and (b) the rights and obligations of the parties under Sections 7, 10 and 16 shall survive such termination. 16. Confidentiality. Each of the Company and the Partnership shall --------------- hold and keep confidential all information, documents and data relating to CVD technology which are received from the other party during the term of this Agreement. 6 IN WITNESS WHEREOF, this Agreement has been executed as of the date first above written. COMPANY: PLASMA & MATERIALS TECHNOLOGIES, INC., a California corporation By: /s/ Dr. Gregor A. Campbell --------------------------- Dr. Gregor A. Campbell President and Chief Executive Officer PARTNERSHIP: PMT CVD PARTNERS, L.P., a California limited partnership By: CVD, Inc., General Partner By: /s/ John W. La Valle --------------------- John W. La Valle Chief Financial Officer and Secretary 7 Exhibit A PARTNERSHIP 1996 BUDGET ----------------------- A-1 Exhibit B DEVELOPMENT PLAN ---------------- CVD RESEARCH & DEVELOPMENT PROGRAM TASKS 1. January - July 1996: Scope/Project Parameters for Early Prototype ------------------------------------------------------------------ Development ----------- Resolve issues and obtain data on the following variables: A. Shorten Clean Process Time B. Increase Speed of Chuck Declamping C. Increase Speed of top coat deposition rate D. Reduce Particle Count 2. July - October 1996: Early Stage Productization ------------------------------------------------ A. Integrate Prototype Development B. Resolve Integration Issues C. Build 2 tools, 1 for PMT and 1 for Anelva 3. July - December 1996: Strategic Marketing Development ------------------------------------------------------ A. Survey Customers for Needs B. Develop Business and Marketing Plans C. Line up JDP Partners D. Execute Marketing and Business Plan 4. October - December 1996: IRONMAN and Beta Unit Production ---------------------------------------------------------- A. Complete IRONMAN testing B. Build 1 to 2 Beta Units for JDP programs, to be ready for system delivery in December 96/January 97 DEVELOPMENT RESOURCES REQUIRED 1. March - December 1996: Early Prototype Development --------------------------------------------------- 10 Engineers including process, CAD, software, technicians and designers 1 General Manager/President to coordinate and manage work program 2. July - December 1996: Business/Marketing Plan ---------------------------------------------- 1 Strategic Marketing Executive 3. July 1996 - March 1997: Mid Stage Productization ------------------------------------------------- 8-10 additional engineers for production/assembly and IRONMAN testing B-1 Exhibit B (cont'd) DEVELOPMENT PLAN ---------------- OTHER Additional plan, personnel resources, capital equipment requirements will be scoped and agreed upon at the 1996 mid-year status meeting. B-2 EX-10.19 7 TECHNOLOGY LICENSE AGREEMENT EXHIBIT 10.19 TECHNOLOGY LICENSE AGREEMENT THIS TECHNOLOGY LICENSE AGREEMENT (this "Agreement") is entered into as of March 29, 1996 between Plasma & Materials Technologies, Inc., a California corporation (the "Company"), and PMT CVD Partners, L.P., a California limited partnership (the "Partnership"). R E C I T A L S: - - - - - - - - A. The Company designs, manufactures, markets and sells advanced semiconductor manufacturing equipment, including a plasma source covered by United States Patent No. 4,990,229, entitled "High Density Plasma Deposition and Etching Apparatus" (together with its foreign counterparts, the "MORI Patent"), which plasma source can be incorporated into, among other equipment, chemical vapor deposition ("CVD") systems for the manufacture of semiconductors. B. The Partnership has been formed pursuant to that certain Agreement of Limited Partnership of PMT CVD Partners, L.P. dated as of an even date herewith (the "Partnership Agreement"), to which the Company is a party and, in connection therewith, the Company has agreed to contribute to the capital of the Partnership a non-exclusive, royalty-free license for CVD applications for semiconductor manufacturing under all PMT patents and technology (including without limitation the MORI Patent and related technology). C. The parties intend to effect such contribution of license rights pursuant hereto. A G R E E M E N T: - - - - - - - - - NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows: 1. Grant of License. Pursuant to Section 3.1(b) of the Partnership ---------------- Agreement and for the consideration provided in the Partnership Agreement, the Company hereby grants to the Partnership a non-exclusive, worldwide and fully paid license, under all patents, copyrights, trade secrets and other intellectual property of the Company (including without limitation the MORI Patent and related technology), to design, develop, manufacture, have manufactured, use, sell, lease or otherwise dispose of any and all CVD systems for the manufacture of semiconductors, or any part thereof or spare part therefor, including without limitation the plasma source or any spare part therefor which is a component of or used in any such CVD systems. Such license shall not be assignable or transferable, and may not be sublicensed, at all times prior to September 30, 2001, but on and after such date such license may be sold, assigned, sublicensed or otherwise dealt in and with solely for the Partnership's own account and without royalty, accounting, reporting or other obligation of any nature to the Company. For purposes of the foregoing, "system" shall mean a stand-alone set of equipment for the chemical vapor deposition of film in the semiconductor manufacturing process, and shall not include components or spare parts (or plasma sources or spare parts) except only to the extent manufactured solely for use in systems as so defined. Furthermore, such license shall be limited solely to CVD applications, and shall not confer upon the Partnership any license or right with respect to systems, components or spare parts not used solely for CVD applications. Such license shall further be subject to the limitations set forth in Sections 4, 5 and 6 hereof. All such CVD systems, and all components thereof and spare parts therefor which are within the scope of the license rights granted hereby, are referred to herein as the "Products." 2. Technical Assistance. In order to assist the Partnership in the -------------------- manufacture of the Products under this license, the Company agrees from time to time during the term hereof (as provided in Section 9 hereof) to provide the Partnership upon request with the following documents, information, technology and manufacturing know-how related to the design, development or manufacture of the Products, all at no cost to the Partnership: (a) all technical information related to the Products; (b) all engineering documentation related to the Products; (c) all manufacturing documentation related to the Products; (d) all quality assurance documentation related to the Products; and (e) all process information related to the Products. 3. Further Assistance. In order to further assist the Partnership to ------------------ develop, manufacture, assemble, test and repair the Products, the Company agrees as follows: (a) from time to time during the term hereof, the Company shall make reasonably available to the Partnership, for consultation at the Company's facilities, qualified employees of the Company to render technical advice to the Partnership regarding the manufacture, assembly, testing and repair of the Products; and (b) from time to time during the term hereof, the Company shall allow the Partnership's personnel to visit the Company's manufacturing plants for the study of systems, procedures, practices and methods as reasonably needed to further enable the Partnership to develop, manufacture, assemble, test and repair the Products. The Partnership agrees to reimburse the Company for the Company's reasonable out-of-pocket expenses incurred in connection with complying with this Section 3, 2 including all salary and wage expenses of employees or consultants of the Company to the extent that their time is used to provide this assistance to the Partnership. 4. Obligations with Respect to Watkins-Johnson Company. The --------------------------------------------------- Partnership acknowledges that the Company and Watkins-Johnson Company ("W-J") are parties to, among other agreements, a Technology License and Sales Agreement (the "W-J Agreement") which provides that, during the Covenant Period (determined as provided therein), the Company will not (a) sell, offer for sale, or solicit the purchase of its products for CVD applications for semiconductor manufacturing, or (b) grant any licenses to make, have made, use, sell or modify such products for CVD applications for semiconductor manufacturing. Accordingly, the Partnership specifically acknowledges and agrees that the license rights granted hereunder shall not include any rights to make, have made, sell, offer for sale, use, modify or solicit the purchase of any products for CVD applications during the Covenant Period. The Company represents and warrants to the Partnership that the Covenant Period shall terminate no later than July 1, 1996. The Company shall indemnify and hold harmless the Partnership from and against any loss, liability, claim or expense arising by reason of any claim by W-J that this Agreement or the transactions contemplated hereby violate the W-J Agreement. 5. Rights and Obligations with respect to Anelva Corporation. The --------------------------------------------------------- Partnership acknowledges that the Company and Anelva Corporation, a corporation existing under the laws of Japan ("Anelva"), are parties to a Memorandum of Intent dated December 7, 1995 providing for, and pursuant thereto shall enter into, among other agreements, a Joint Development Agreement, a Sales and Marketing Agreement and a Manufacturing Agreement for the development, manufacturing and marketing of CVD systems incorporating the Company's helicon plasma source for oxidizing film for 200 millimeter wafers, and any improvements thereto (the "JD Products"). The Partnership specifically acknowledges and agrees that (a) it shall succeed to and assume all rights and obligations of the Company under such Joint Development Agreement, and (b) pursuant to the marketing rights to be granted to Anelva by the Company under the Sales and Marketing Agreement, Anelva will have, during the Term of the Sales and Marketing Agreement, the exclusive right (i) to market and sell the JD Products for installation and use in the Anelva Territories (as defined below in this paragraph) and to market and sell components and spare parts for the JD Products in the Anelva Territories, and (ii) to market and sell the JD Products and components and spare parts for the JD Products to the Anelva Japanese Customers (as defined below in this paragraph). Accordingly, the license rights granted herein by the Company to the Partnership shall be subject to such exclusive rights of Anelva and, during the Term of the Sales and Marketing Agreement, the Partnership shall not market or sell any JD Products for installation in the Anelva Territories or to the Anelva Japanese Customers. For purpose of the foregoing, the term "Anelva Territories" means Japan, Taiwan and all of Asia, excluding Korea (but specifically including China, Hong Kong, Vietnam, Thailand, Cambodia, Burma, India, Pakistan, Bangladesh, Sri Lanka, Indonesia, Singapore, Malaysia, Philippines and the Eastern and Central Asian republics of the former U.S.S.R.), and all of the Pacific Region 3 (including Australia). Furthermore, for purposes of the foregoing, the term "Anelva Japanese Customers" means NEC Corporation and its affiliates, Hitachi and its affiliates, Matsushita and its affiliates, Sony and its affiliates, Fujitsu and its affiliates, Mitsubishi and its affiliates, and any customer with which Anelva has an existing relationship as acknowledged and agreed upon in writing by Anelva and the Company. 6. Export Regulations. It is agreed that the worldwide license ------------------ granted to the Partnership herein is subject to all applicable restrictions regarding the sale, transfer and/or export by the Partnership or its assigns or sublicensees of any of the Products or any technology relating thereto pursuant to the Export Administration Regulations of the United States Department of Commerce, Office of Export Administration, as in effect from time to time during the term hereof and, in accordance with such Regulations as presently in effect, the Partnership agrees that it shall not sell, transfer or export any such technology, or any Products or other commodities resulting therefrom, without the prior approval of the United States government (and the Partnership agrees to execute and deliver to the Company, upon request at any time or from time to time during the term hereof, further written certifications to such effect.) 7. Confidentiality of Proprietary Information. The Partnership ------------------------------------------ hereby agrees that, during the term hereof and continuing after its termination or expiration, it will keep in confidence and prevent the disclosure to any unauthorized persons of any proprietary information, technology and manufacturing know-how of the Company which is licensed to the Partnership or otherwise made available to the Partnership hereunder. However, such obligations of the Partnership shall terminate to the extent that any such information, technology or know-how (a) is in or enters the public domain through no fault of the Partnership, or (b) is or becomes independently known to the Partnership free of any obligation of confidentiality hereunder. 8. No Warranty by the Company. The Company makes no warranty to the -------------------------- Partnership as to the accuracy, sufficiency or suitability for use of any technical information provided to the Partnership hereunder, or for the quality of any Products made hereunder. The Company assumes no responsibility for consequential damages, which might arise out of the manufacture, sale or use of any of the Products. 9. Term; Termination. The license granted under Section 1 hereof ----------------- shall be for perpetuity. For all other purposes, the term hereof shall be ten (10) years. 10. Scope of Agreement. This Agreement constitutes the entire ------------------ understanding and agreement between the parties regarding this specific matter and supersedes all prior representations and agreements. It may not be modified or amended other than by an instrument in writing executed by the parties. 4 11. Governing Law. This Agreement shall be construed and governed in ------------- accordance with the laws of the State of California. 12. Notices. All notices required or permitted shall be in writing ------- and addressed as follows: If to the Company, to: Plasma & Materials Technologies, Inc. 9255 Deering Avenue Chatsworth, California 91311 Attention: Dr. Gregor A. Campbell With a copy to: Lawrence C. Weeks, Esq. Riordan & McKinzie 5743 Corsa Avenue, Suite 116 Westlake Village, California 91362 If to the Partnership, to: PMT CVD Partners, L.P. c/o Plasma & Materials Technologies, Inc. 9255 Deering Avenue Chatsworth, California 91311 Attention: Mr. John W. La Valle With a copy to: Mark Tanoury, Esq. Cooley Godward Castro Huddleson & Tatum 3000 Sand Hill Road Building 3, Suite 230 Menlo Park, California 94025 or to such other address as either party may from time to time, designate in writing to the other. 5 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and become effective as of the date first set forth above. COMPANY: PLASMA & MATERIALS TECHNOLOGIES, INC. By: /s/ Dr. Gregor A. Campbell --------------------------- Dr. Gregor A. Campbell President and Chief Executive Officer PARTNERSHIP: PMT CVD PARTNERS, L.P. By: CVD, Inc., General Partner By: /s/ John W. La Valle --------------------- John W. La Valle Chief Financial Officer and Secretary 6 -----END PRIVACY-ENHANCED MESSAGE-----