NANO » Topics » General

This excerpt taken from the NANO DEF 14A filed Apr 21, 2009.

General

Stockholders of record as of the record date may vote their shares by attending the annual meeting and voting their shares in person or by completing, signing and dating their respective proxy cards for the annual meeting and mailing them in the postage pre-paid envelope enclosed for that purpose. Stockholders holding shares of common stock in “street name,” which means that their shares are held of record by a broker, bank, or other nominee, may vote by mail by completing, signing and dating the voting instruction forms for the annual meeting provided by their respective brokers, banks, or other nominees and returning their respective voting instruction forms to the record holders of their shares of common stock. Even if you plan to attend the annual meeting, we recommend that you vote by proxy prior to the annual meeting. You can always change your vote as described below.

This excerpt taken from the NANO DEF 14A filed May 23, 2008.

General

Stockholders of record as of the record date may vote their shares by attending the annual meeting and voting their shares in person or by completing, signing and dating their respective proxy cards for the annual meeting and mailing them in the postage pre-paid envelope enclosed for that purpose. Stockholders holding shares of common stock in “street name,” which means that their shares are held of record by a broker, bank, or other nominee, may vote by mail by completing, signing and dating the voting instruction forms for the annual meeting provided by their respective brokers, banks, or other nominees and returning their respective voting instruction forms to the record holders of their shares of common stock. Even if you plan to attend the annual meeting, we recommend that you vote by proxy prior to the annual meeting. You can always change your vote as described below.

 

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This excerpt taken from the NANO DEF 14A filed Aug 13, 2007.

General

Stockholders of record as of the record date may vote their shares by attending the annual meeting and voting their shares in person or by completing, signing and dating their respective proxy cards for the annual meeting and mailing them in the postage pre-paid envelope enclosed for that purpose. Stockholders holding shares of common stock in “street name,” which means that their shares are held of record by a broker, bank, or other nominee, may vote by mail by completing, signing and dating the voting instruction forms for the annual meeting provided by their respective brokers, banks, or other nominees and returning their respective voting instruction forms to the record holders of their shares of common stock. Even if you plan to attend the annual meeting, the Company recommends that you vote by proxy prior to the annual meeting. You can always change your vote as described below.

 

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This excerpt taken from the NANO 8-K filed Oct 5, 2006.

5) GENERAL

a) Covenants of Big League. Big League covenants and agrees that it will, on or before the Effective Date of the Merger:

i) File any and all documents with the appropriate tax authority of the State of California necessary for the assumption by Big League of all of the corporate and/or franchise tax liabilities of Nanometrics; and

ii) Take such other actions as may be required by the California Corporations Code.

b) Further Assurances. From time to time, as and when required by Big League or by its successors or assigns, there shall be executed and delivered on behalf of Nanometrics such deeds and other instruments, and there shall be taken or caused to be taken by Big League and Nanometrics such further and other actions, as shall be appropriate or necessary in order to vest or perfect in or conform of record or otherwise by Big League the title to and possession of all the property, interests, assets, rights, privileges, immunities, powers, franchises and authority of Nanometrics and otherwise to carry out the purposes of this Agreement, and the officers and directors of Big League are fully authorized in the name and on behalf of Nanometrics or otherwise to take any and all such action and to execute and deliver any and all such deeds and other instruments.

c) Abandonment. At any time before the Effective Date of the Merger, this Agreement may be terminated and the Merger may be abandoned for any reason whatsoever by the Board of Directors of either Nanometrics or Big League, or both, notwithstanding the approval of this Agreement by the shareholders of Nanometrics or by the sole stockholder of Big League, or by both.

 

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d) Amendment. The Boards of Directors of the Constituent Corporations may amend this Agreement at any time prior to the filing of this Agreement (or certificate in lieu thereof) with the Secretaries of State of the States of California and Delaware, provided that an amendment made subsequent to the adoption of this Agreement by the shareholders of either Constituent Corporation shall not: (1) alter or change the amount or kind of shares, securities, cash, property and/or rights to be received in exchange for or on conversion of all or any of the shares of any class or series thereof of such Constituent Corporation, (2) alter or change any term of the Certificate of Incorporation of the Surviving Corporation to be effected by the Merger, or (3) alter or change any of the terms and conditions of this Agreement if such alteration or change would adversely affect the holders of any class of shares or series thereof of such Constituent Corporation.

e) Registered Office. The registered office of the Surviving Corporation in the State of Delaware is located at 1209 Orange Street, in the city of Wilmington, Delaware 19801, County of New Castle, and The Corporation Trust Company is the registered agent of the Surviving Corporation at such address.

f) Agreement. Executed copies of this Agreement will be on file at the principal place of business of the Surviving Corporation at 1550 Buckeye Drive, Milpitas, California 95035, and copies thereof will be furnished to any shareholder of either Constituent Corporation, upon request and without cost.

g) Governing Law. This Agreement shall in all respects be construed, interpreted and enforced in accordance with and governed by the laws of the State of Delaware and, so far as applicable, the merger provisions of the California Corporations Code.

h) Counterparts. In order to facilitate the filing and recording of this Agreement, the same may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument.

 

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IN WITNESS WHEREOF, this Agreement, having first been approved by resolutions of the Boards of Directors of Big League and Nanometrics, is hereby executed on behalf of each of such corporation by their respective officers thereunto duly authorized.

 

BIG LEAGUE MERGER CORPORATION
a Delaware corporation
By:  

/s/ Douglas J. McCutcheon

  Douglas J. McCutcheon, Chief Financial Officer

NANOMETRICS INCORPORATED

a California corporation

By:  

/s/ John D. Heaton

  John D. Heaton, President and Chief Executive Officer
This excerpt taken from the NANO DEF 14A filed Aug 21, 2006.

General

The board of directors, by a unanimous vote at a special meeting of the board of directors, adopted a resolution approving a change in the state of its incorporation from California to Delaware. If approved by the requisite vote of the Company’s shareholders, this reincorporation shall be effected through a merger of the Company with its wholly owned subsidiary, Big League Merger Corporation, a Delaware corporation.

This excerpt taken from the NANO 10-Q filed Nov 21, 2005.

13. GENERAL

 

13.1 Governing Law. The rights and obligations of the parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods; rather such rights and obligations shall be governed by and construed under the laws of the State of California without reference to conflict of laws principles.

 

13.2 Disputes. Any dispute or conflict between Toho and Nanometrics in connection with this Agreement shall be finally settled under the Rules of Arbitration of the American Arbitration Association (“AAA”). Such arbitration shall take place in Nagoya, Japan. The arbitration shall be conducted in English and Japanese by three (3) arbitrators in accordance with the rules of the AAA. The individuals who will serve as the arbitrators shall be selected as follows: Toho shall select a first arbitrator, Nanometrics shall select a second arbitrator, and the first arbitrator and the second arbitrator shall jointly select a third arbitrator. The decision of the arbitrators may be entered and enforced in any court of competent jurisdiction. Costs of the arbitration proceedings shall be jointly and equally shared by Nanometrics and Toho.

 

13.3 Dollars. All fees and amounts payable under this Agreement shall be in United States Dollars (U.S. $). All references to “dollars”, “U.S. $” or “$” shall mean United States dollars. To determine Royalties and other amounts due to Nanometrics under this Agreement, all relevant amounts received by Toho in a currency other than U.S. Dollars shall be converted to U.S. Dollars using the applicable exchange rate published on the date of payment, as reported in the Wall Street Journal (West Coast Edition).

 

13.4

Notices. Any notice required or permitted by this Agreement shall be in writing and shall be sent by prepaid registered or certified mail, return receipt requested, internationally-recognized courier or personal delivery, addressed to the other party at the address shown at the beginning of this Agreement or at such other address for which such party gives


 

notice hereunder. Such notice shall be deemed to have been given when delivered or, if delivery is not accomplished by some fault of the addressee, when tendered.

 

  (a) Any notice or other communication required or permitted to be delivered to any Party under this Agreement must be in writing and will be deemed properly delivered, given and received when delivered (by hand, by registered mail, by courier or express delivery service or by facsimile) to the address or facsimile telephone number set forth beneath the name of such Party below (or to such other address or facsimile telephone number as such Party may have specified in a written notice given to the other Party):

 

if to NANOMETRICS:

 

Nanometrics Incorporated

1550 Buckeye Drive

Milpitas, California 95035

Attention: John Heaton

Telephone: (408) 435-9600

Facsimile No. (408) 232-5910

 

if to Toho:

 

Toho Technology Corp.

10-22, 3-chome Sakae Nakaku

Nagoya-City, Aichi Prefecture

Japan 460-0008

Attention: Hideyuki Tomita

Telephone: (81-52) 251-7211

Facsimile No. (81-52) 251-3646

 

13.5 Force Majeure. Nonperformance by either party hereunder shall be excused to the extent that performance is rendered impossible by strike, fire, terrorism, war, flood, governmental acts or orders or restrictions, failure of suppliers, or any other reason to the extent that the failure to perform is beyond the control of the nonperforming party.

 

13.6 Assignment. Neither Party may assign this Agreement or an obligation or right under this Agreement without the prior written consent of the other Party, except that either Party may assign this Agreement to a successor-in-interest to all or substantially all of its business or assets related to the subject matter of this Agreement, whether by operation of law or otherwise, without the prior written consent of the other Party and any grant of a license that is by its terms is transferable may be transferred in accordance therewith. The Agreement shall be binding upon the successors and permitted assigns of the Parties. Any assignment not in accordance with this Section 13.6 (Assignment) will be void.

 

13.7 Publicity. Neither Toho nor Nanometrics shall disclose the existence or terms of this Agreement without the agreement of the other Party. Public releases in connection with this Agreement shall be coordinated and agreed-upon by both Toho and Nanometrics in advance.


13.8 Partial Invalidity. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall remain, nevertheless, in full force and effect. The parties agree to renegotiate in good faith any term held invalid and to be bound by the mutually agreed substitute provision in order to give the most approximate effect intended by the parties.

 

13.9 U.S. Export Control. Toho and Nanometrics understand that Nanometrics is subject to regulation by agencies of the U.S. Government, which prohibit export or diversion of certain technical products to certain countries. Toho warrants that it will comply in all respects with the U.S. Export Administration Regulations and all other export and re-export restrictions applicable to Toho Products.

 

13.10 No Waiver. No waiver of any term or condition of this Agreement shall be valid or binding on either Party unless agreed in writing by the party to be charged. The failure of either Party to enforce at any time any of the provisions of the Agreement, or the failure to require at any time performance by the other Party of any of the provisions of this Agreement, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of wither Party to enforce each and every such provision thereafter.

 

13.11 Language. This Agreement is in the English language, which language shall be controlling in all respects. All communications and notices to be made or given pursuant to this Agreement shall be in the English language.

 

13.12 Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

 

13.13 Entire Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and merges all prior discussions between them. No modification of, or amendment to, this Agreement, nor any waiver of any rights under this Agreement, except as herein otherwise provided, shall be effective unless in writing signed by the party to be charged.

 

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