<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 10-Q
QUARTERLY REPORT UNDER SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
For Quarter Ended May 31, 1996 Commission File Number 0-12353
PLASMA-THERM, INC.
------------------
(Exact name of registrant as specified in its charter)
FLORIDA 04-2554632
------- ----------
State or other jurisdiction of (I.R.S. Employer
incorporation or organization Identification No.)
9509 INTERNATIONAL COURT, ST. PETERSBURG, FLORIDA 33716
-------------------------------------------------------
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code (813) 577-4999
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 period 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
--- ----
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date.
Common Stock, par value $.01 per share 10,301,061
- -------------------------------------- -----------------------------
Class Outstanding at June 20, 1996
<PAGE> 2
INDEX
<TABLE>
<CAPTION>
PAGE
NUMBER
------
<S> <C>
PART 1. FINANCIAL INFORMATION
Item 1. Consolidated Financial Statements
Balance Sheets - May 31, 1996 and
November 30, 1995 ............................................... 3
Statements of Income - Three Months and Six Months Ended
May 31, 1996 and May 31, 1995 ................................... 5
Statements of Cash Flows - Six Months Ended
May 31, 1996 and May 31, 1995 ................................... 6
Notes to Consolidated Financial Statements ....................... 8
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations .......... 11
PART II. OTHER INFORMATION
Item 4. Submission of Matters to a Vote of Security-Holders ....... 15
Item 6. Exhibits and Reports on Form 8-K .......................... 16
</TABLE>
-2-
<PAGE> 3
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
May 31, November 30,
ASSETS 1996 1995
------------ ------------
(unaudited)
<S> <C> <C>
Current assets
Cash and cash equivalents $ 5,041,812 $ 5,058,718
Accounts receivable 7,131,163 7,882,427
Prepaid income taxes 58,087 18,048
Inventories 11,499,803 9,832,853
Prepaid expenses and other 757,195 269,875
Deferred tax asset 354,000 603,000
------------ ------------
Total current assets 24,842,060 23,664,921
------------ ------------
Property and equipment, at cost
Machinery and equipment 2,395,501 2,301,273
Leasehold improvements 133,900 419,263
------------ ------------
2,529,401 2,720,536
Less accumulated depreciation and
amortization 1,588,700 1,954,377
------------ ------------
940,701 766,159
Land 786,017 786,017
Construction in process 3,730,936 1,417,353
------------ ------------
5,457,654 2,969,529
------------ ------------
Other assets
Deferred tax asset 94,152 182,850
Other 60,361 91,720
------------ ------------
154,513 274,570
------------ ------------
$ 30,454,227 $ 26,909,020
============ ============
</TABLE>
See accompanying notes to these consolidated financial statements.
-3-
<PAGE> 4
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
May 31, November 30,
LIABILITIES 1996 1995
------------ ------------
<S> <C> <C>
Current liabilities
Short-term borrowings $ 2,000,000 $ 2,000,000
Current portion of notes payable 531,104 343,647
Current maturities of obligations under
capital leases 76,887 73,010
Accounts payable 2,306,987 2,920,079
Accrued payroll and related 440,661 402,649
Accrued expenses 194,095 356,895
Accrued warranty expense 693,515 693,515
Income taxes payable - -
------------ ------------
Total current liabilities 6,243,249 6,789,795
------------ ------------
Long-term obligations
Notes payable 3,440,652 908,485
Obligations under capital leases 198,978 238,475
------------ ------------
3,639,630 1,146,960
------------ ------------
SHAREHOLDERS' EQUITY
Shareholders' equity
Common stock
$.01 par value
Authorized - 25,000,000 shares
Issued and outstanding - 10,301,061
shares - 1996 and 10,279,561 shares -
1995 103,012 102,797
Additional paid-in capital 14,706,218 14,645,775
Retained earnings 5,762,118 4,223,693
------------ ------------
20,571,348 18,972,265
------------ ------------
$30,454,227 $ 26,909,020
=========== ============
</TABLE>
See accompanying notes to these consolidated financial statements.
-4-
<PAGE> 5
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF INCOME
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Six Months Ended
May 31, May 31,
------------------------- --------------------------
1996 1995 1996 1995
----------- ----------- ----------- ------------
<S> <C> <C> <C> <C>
Net sales $ 9,491,798 $ 7,159,661 $17,781,800 $ 12,146,521
----------- ----------- ----------- ------------
Costs and expenses
Cost of products sold 5,836,730 4,776,213 11,125,035 8,193,726
Research and development 716,253 673,725 1,335,576 1,188,537
Selling and administrative 1,451,217 1,484,766 2,789,653 2,562,766
Interest expense 49,933 38,889 108,150 74,545
Interest income (63,598) (93,756) (135,204) (178,511)
Other (income) expense, net 23,681 (401) 24,359 3,750
----------- ----------- ----------- ------------
8,014,216 6,879,436 15,247,569 11,844,813
----------- ----------- ----------- ------------
Income before income taxes 1,477,582 280,225 2,534,231 301,708
Income taxes 584,716 104,188 995,806 117,238
----------- ----------- ----------- ------------
Net income $ 892,866 $ 176,037 $ 1,538,425 $ 184,470
=========== =========== =========== ============
Income per share (primary and fully diluted) $ 0.08 $ 0.02 $ 0.14 $ 0.02
=========== =========== ============ ============
</TABLE>
See accompanying notes to these consolidated financial statements.
-5-
<PAGE> 6
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended May 31,
-------------------------------
1996 1995
------------ -----------
<S> <C> <C>
Cash flows from operating activities
Net income $ 1,538,425 $ 184,470
Adjustments to reconcile net income to net
cash provided by operating activities
Depreciation and amortization 334,230 212,143
Loss on disposal of assets 23,681 5,100
Deferred taxes 337,698 -
Compensation - stock options 28,890 17,043
Changes in assets and liabilities
(Increase) decrease in accounts receivable 751,264 (1,788,544)
Increase in income tax deposits (40,039) (115,100)
Increase in inventories (1,666,950) (1,735,967)
Increase in prepaid expenses and other 517,320) (63,863)
Decrease in billing in excess of costs and
estimated earnings on uncompleted contracts - (27,330)
Increase (decrease) in accounts payable (613,092) 1,020,226
Increase (decrease) in accrued payroll and related 38,012 (75,328)
Increase (decrease) in accrued expenses (162,800) 236,269
Decrease in income taxes payable
(exclusive of tax benefits derived from
exercise of options/warrants) (5,152) (151,962)
Decrease in customer deposits - (386,600)
------------- -----------
Net cash provided by (used in)
operating activities 46,847 (2,669,443)
------------- -----------
Cash flows from investing activities
Capital expenditures (2,848,536) (411,700)
Payments received on note receivable 30,000 30,000
Proceeds from sale of assets 2,500 -
Other 31,359 7,981
------------- -----------
Net cash used in investing activities (2,784,677) (373,719)
------------- -----------
</TABLE>
See accompanying notes to these consolidated financial statements.
-6-
<PAGE> 7
PLASMA-THERM, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS - CONTINUED
(Unaudited)
<TABLE>
<CAPTION>
Six Months Ended May 31,
-------------------------
1996 1995
---------- -------------
<S> <C> <C>
Cash flows from financing activities
Proceeds from issuance of notes payable 2,922,981 -
Principal payments on notes payable (203,357) (208,334)
Principal payments under capital lease obligations (35,620) (61,085)
Net issuances under line of credit agreements - (200,000)
Issuance of common stock and warrants 36,920 372,328
Issuance of common stock in private placement - 5,759,097
----------- -----------
Net cash provided by
financing activities 2,720,924 5,662,006
----------- -----------
Net increase (decrease) in cash and
cash equivalents (16,906) 2,618,844
----------- -----------
Cash and cash equivalents, beginning of period 5,058,718 2,625,850
----------- -----------
Cash and cash equivalents, end of period $ 5,041,812 $ 5,244,694
=========== ===========
</TABLE>
See accompanying notes to these consolidated financial statements.
-7-
<PAGE> 8
PLASMA-THERM, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MAY 31, 1996 AND NOVEMBER 30, 1995
(UNAUDITED)
NOTE 1 BASIS OF PRESENTATION
In the opinion of management, the accompanying unaudited
consolidated financial statements contain all adjustments
(consisting of only normal recurring adjustments) necessary to
present fairly the financial position as of May 31, 1996 and
November 30, 1995 and the results of operations and cash flows
for the six months ended May 31, 1996 and 1995.
The results of operations for the six months ended May 31,
1996 and 1995 are not necessarily indicative of results for
the full year.
The November 30, 1995 balance sheet amounts and disclosures
included herein have been derived from the November 30, 1995
audited financial statements of the Registrant. While the
Company believes that the disclosures presented are adequate
to make the information not misleading, it is suggested that
these consolidated financial statements be read in conjunction
with the consolidated financial statements and the notes
included in the Company's latest annual report on Form 10-K.
NOTE 2 PRINCIPLES OF CONSOLIDATION
The consolidated financial statements include the accounts of
Plasma-Therm, Inc. and its wholly-owned subsidiary, Magnetran
Inc.. All significant intercompany transactions and balances
have been eliminated.
-8-
<PAGE> 9
PLASMA-THERM, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MAY 31, 1996 AND NOVEMBER 30, 1995
(UNAUDITED)
NOTE 3 INCOME PER SHARE
Earnings per share is computed based on the weighted average
number of shares of common stock adjusted for the conversion
of dilutive common stock equivalents. The primary and fully
diluted income per share are the same for all periods
presented. The following is the weighted average outstanding
share information.
<TABLE>
<CAPTION>
Three Months Ended May 31,
--------------------------------
1996 1995
---------- ----------
<S> <C> <C>
Primary 10,706,415 10,723,039
Fully Diluted 10,799,427 10,723,020
</TABLE>
<TABLE>
<CAPTION>
Six Months Ended May 31,
--------------------------------
1996 1995
---------- ----------
<S> <C> <C>
Primary 10,660,692 10,662,953
Fully Diluted 10,796,479 10,676,119
</TABLE>
NOTE 4 ACCOUNTING FOR STOCK-BASED COMPENSATION
Management has not yet completely analyzed the provisions of
SFAS No. 123 "Accounting for Stock- Based Compensation".
Accordingly, management has not yet determined whether or not
SFAS No. 123's accounting recognition provisions will be
adopted or if APB No. 25's method will be continued. In
addition, management has not yet determined the potential
effect that the SFAS No. 123 accounting provision, if
adopted, will have on the Company's financial statements.
-9-
<PAGE> 10
PLASMA-THERM, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
MAY 31, 1996 AND NOVEMBER 30, 1995
(UNAUDITED)
NOTE 5 NOTES PAYABLE
In March 1996 the Company executed two promissory notes for
$496,032 with its bank for the purchase of computer software
and hardware. Monthly installments of $15,423 including
interest at 7.92% is payable through February, 1999. These
notes are secured by various machinery and equipment.
In August, 1995 the Company executed a promissory note for
$3,375,000 with its bank for the construction of its new
manufacturing facility. On June 14, 1996, the completion of
the construction phase, the note converted to a five year term
loan, amortized over a fifteen year period. The loan is
payable in monthly installments of $33,235, including interest
at 8.5% beginning July 15, 1996. The loan is collateralized by
the land, the building and its contents.
NOTE 6 LICENSE AGREEMENT
Effective June 19, 1996, the Company entered into a license
agreement with a German company for the non-exclusive rights
to their patent on a new plasma process technology. In
exchange for the use of the patent, the Company will pay an
initial license fee of 450,000 deutsche marks which is
approximately $300,000 at the current exchange rates. In
addition, during the first five years of the agreement or the
shipment of the first fifty plasma processing chambers
including the licensed technology, whichever comes first, the
Company will pay a royalty fee of 35,000 deutsche marks which
is approximately $23,000 at the current exchange rates per
plasma processing chamber. Thereafter, the royalty fee will be
reduced to 25,000 deutsche marks per plasma processing
chamber.
-10-
<PAGE> 11
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS
FINANCIAL POSITION, LIQUIDITY AND CAPITAL REQUIREMENTS
The Company's cash position at May 31, 1996 is $5,041,812
compared to $5,058,718 at November 30, 1995. Working capital
at May 31, 1996 was $18,598,811, which is an increase of
$1,723,685 from November 30, 1995. The increase in working
capital is primarily the result of an increase in inventories
of $1,666,950 due to an increase in backlog and an anticipated
increase in sales over 1995 for the remainder of 1996.
Uses of cash included the principal repayment of $238,977 of
notes payable and capital leases. In addition, the company has
incurred $2,848,536 in capital expenditures, of which
approximately $535,000 relates primarily to cash outlays for
manufacturing software and various computer hardware. Of the
$535,000, approximately $382,000 was financed through notes
payable to the Company's bank (See Note 5 to the Consolidated
Financial Statements).
The remaining balance of capital expenditures of approximately
$2,314,000 consists of the costs incurred for the construction
of the new building. These costs are reimbursed to the Company
through the construction loan as incurred. On June 14, 1996,
the completion of the construction phase, the note converted
to a five year term loan, amortized over fifteen years. The
loan is payable in monthly installments of $33,235, including
interest at 8.5% beginning July 15, 1996. The loan is
collateralized by the land, the building and its contents.
The Company has extensive ongoing capital requirements for
research and development, the repayment of debt, capital
equipment and inventory. The Company believes that its current
cash reserves, together with the proceeds of its private
placement, working capital expected to be generated by
operations and additional funds available under its line of
credit, should be sufficient to meet its capital requirements
for the immediate future. Should order input exceed projected
1996 levels, additional working capital may be required.
RESULTS OF OPERATIONS
Net sales of $9.5 million for the second quarter of 1996
increased by 33% from net sales of $7.2 million for the second
quarter of 1995. For the first half of 1996, the Company
reported net sales of $17.8 million, 46% higher than net sales
of $12.1 million for the first six months of 1995. The
increase in net sales for both the second quarter and six
month period was attributable to higher product demand and
sales of the Company's newest product, the Versalock(TM) 700
Series. Sales of the Versalock(TM) 700 Series began in the
fourth quarter 1995.
-11-
<PAGE> 12
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (CONTINUED)
Cost of products sold of $5.8 million for the second quarter
of 1996 was 61% of net sales, compared to 67% for the same
period last year. Cost of products sold of $11.1 million for
the first six months of 1996 was 63% of net sales compared to
68% for the same period last year. The decrease for both the
second quarter and six month period is primarily due to a
combination of higher margins related to the sales of the
Versalock(TM) 700 Series in 1996 and lower margins on
Clusterlock(R) 7000 orders which shipped during the second
quarter of 1995. Field service costs, which include warranty
and non-warranty expenditures, have been classified in both
the cost of products sold and selling and administrative
categories in the Company's financial statements in prior
years. To be consistent with the Company's peer groups, in
fiscal 1996 field service costs are classified entirely in
cost of products sold. For comparison purposes, including all
field service costs in cost of products sold for 1995 would
result in cost of products sold of 72% of net sales as
compared to 63% in 1996. The Company incurred $818,000 and
$1,152,000 in field service costs for the second quarter and
six months ended May 31, 1996, respectively, compared to
$520,000 and $859,000 for the same periods in 1995. Of the
$520,000 incurred in field service costs for the second
quarter of 1995, $247,000 was classified in cost of products
sold (relating primarily to warranty) and $273,000 was
classified in the selling and administrative category. Of the
$859,000 incurred in field service costs for the six month
period ended May 31, 1995, $352,000 was classified in cost of
products sold (relating primarily to warranty) and $507,000
was classified in the selling and administrative category.
Research and development expense for the second quarter of
1996 and 1995 was $716,253 and $673,725, which is 7.5% and
9.4% of net sales respectively. Research and development
expense for the first half of 1996 and 1995 was $1,335,576 and
$1,188,537, which is 7.5% and 9.8% respectively. Although the
percentage of research and development expense to net sales
has decreased, total dollars spent has increased. A portion of
research and development expenses are fixed costs; therefore
the percentage as it relates to net sales is lower in fiscal
1996 as compared to fiscal 1995 since net sales increased
significantly by 46% from fiscal 1995 to fiscal 1996. As sales
increase, certain overhead expenditures increase, however, at
a lower rate. As new product lines continue to be introduced,
total dollars expended on research and development are
expected to increase to typically 9% to 10% of net sales.
Selling and administrative expense was $1,451,217 in the
second quarter of 1996, down from $1,484,766 in the second
quarter of 1995. Selling and administrative expense for the
first six months of 1996 was $2,789,653, up from $2,562,766
for the first six months of 1995. As discussed above, field
service costs are classified entirely in cost of products sold
in fiscal 1996 whereas a portion of field service costs were
classified in the selling and administrative category in
fiscal 1995. For comparative purposes, selling and
administrative expense for the second quarter of 1995, less
field service costs of approximately $273,000, was
approximately $1,212,000 which would be 16.9% of net sales
compared to 15.3% for the second quarter of 1996. Selling and
administrative expense for the six month period of 1995, less
field service costs of approximately $507,000, was
approximately $2,056,000
-12-
<PAGE> 13
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (CONTINUED)
which would be 16.9% of net sales compared to 15.7% for the
same period of 1996. As explained in the previous paragraph,
the slight decrease in 1996 is primarily due to the increase
in overhead expenditures at a lower rate than the increase in
sales.
Income before income taxes of $2,534,231 for the first half of
1996 as compared to $301,708 for the same period in 1995, is
significantly higher due to increased sales and higher margins
in the Versalock(TM) 700 Series in 1996 and lower margins
related to the Clusterlock(R) 7000 orders in 1995, as
discussed above. In addition, as explained above, overhead
expenses increase as net sales increase, however, at a lower
rate, thus resulting in higher net income.
FORWARD LOOKING INFORMATION
From time to time, the Company may publish forward-looking
statements relating to such matters as anticipated financial
performance, business prospects, technological developments,
new products, research and development activities and similar
matters. The Private Securities Litigation Reform Act of 1995
provides a safe harbor for forward-looking statements. In
order to comply with the terms of the safe harbor, the Company
notes that a variety of factors could cause the Company's
actual results and experience to differ materially from the
anticipated results or other expectations expressed in the
Company's forward-looking statements. The risks and
uncertainties that may affect the operations, performance,
development and results of the Company's business include the
following:
The Company sells relatively expensive capital equipment, and
in any given quarter or financial period, any one customer or
any individual shipment may represent a significant portion of
revenue in that period. Therefore a delay or cancellation of
that shipment could cause the Company to experience a revenue
or earnings shortfall for a given financial period.
The Company relies on distributors and representatives, which
complement its direct sales and service staff, to sell and
service its products in various geographic locations. Should
these sales and service channels be rendered ineffective, it
could materially impact the Company's business. Some of the
Company's competitors have more extensive direct sales and
service locations in the Company's distributor's and
representatives' channels, which could provide these
competitors with a competitive advantage in certain geographic
areas.
Plasma-Therm depends heavily on the success and growth of the
high technology marketplace. In particular, a slowdown in
personal computer consumption could cause a slowdown of disk
drive production, resulting in lower output of thin film
heads, which could materially effect the Company's business.
The Company also relies on the health of the general
semiconductor equipment marketplace. A slowdown in the
semiconductor capital equipment purchases could also affect
the Company's business from time to time.
-13-
<PAGE> 14
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION
AND RESULTS OF OPERATIONS (CONTINUED)
The Company also participates in the flat panel display
marketplace. The Company's Clusterlock(R) 7000, a flat panel
display manufacturing system, has been successful in its
customers' R&D and pilot production manufacturing runs of flat
panel displays in the United States. The ability to compete on
a global basis and to compete for the high volume
manufacturing of flat panel displays is essential for the long
term viability of the Clusterlock(R) product line. Many of the
Company's competitors are much larger and are better
capitalized and maintain a larger customer service and support
infrastructure. Currently, the Company has not determined
whether it will be successful in this marketplace.
The upcoming move to the Company's new manufacturing facility
could produce short term production inefficiencies, higher
costs and start-up expenses.
The rate of growth in Plasma-Therm's Customer Service, Sales,
General & Administrative expenses, and the impact of unusual
items resulting from Plasma-Therm's ongoing evaluation of its
business strategies, could affect results.
The Company faces a risk of technological obsolescence for its
products that are based on rapidly changing technology. Its
ability to remain competitive will depend to a significant
extent on the success of its research and development
activities in enhancing existing products and developing new
ones. The success of its research and development effort will
depend in part upon its ability to attract and retain
technically qualified personnel who are much in demand.
-14-
<PAGE> 15
PART II. OTHER INFORMATION
ITEM 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY-HOLDERS
The Company held its Annual Meeting of Shareholders on April
30, 1996. At the meeting, the shareholders voted on the
election of directors and an amendment to the Company's
Articles of Incorporation.
Three directors were elected to the Board of Directors of the
Company to serve until the next annual meeting of shareholders
and until their successors are duly elected and qualified, for
the terms of office expiring at the next annual meeting of
shareholders: Ronald H. Deferrari, A.S. Gianoplus and Lubek
Jastrzebski. No other director's term of office continued
after the meeting. A total of 9,396,754 votes each were cast
for Mr. Deferrari and Mr. Gianoplus, respectively, and a total
of 9,396,654 votes were cast for Mr. Jastrzebski. A total of
89,475 votes each were withheld with respect to the election
of Mr. Deferrari and Mr. Gianoplus, respectively, and 89,575
votes were withheld with respect to the election of Mr.
Jastrzebski.
The amendment to the Company's Articles of Incorporation, that
was submitted to a vote of shareholders, amended the Articles
to eliminate the right of the shareholders to act by written
consent without holding a meeting. The amendment to the
Articles of Incorporation was approved by a total of 4,522,015
votes in favor of the amendment. There were a total of 596,663
votes against approval of the amendment and 79,698 abstentions
and broker non-votes with respect to this vote.
-15-
<PAGE> 16
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits.
3.4 Amendment to the Registrant's Articles of
Incorporation.
10.41 Note and Security Agreement dated March 20, 1996
between the Registrant and NationsBanc Leasing
Corporation.
10.42 Extension Agreement dated June 14, 1996 and Addendum
Letter to Extension Agreement dated June 17, 1996
between the Registrant and NationsBanc, N.A. (South).
10.43 License Agreement dated June 19, 1996 between the
Registrant and Robert Bosch GmbH.
27 Financial Data Schedule (for SEC use only).
(b) Reports on Form 8-K.
No reports on Form 8-K were filed during the second quarter of
fiscal 1996.
-16-
<PAGE> 17
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-THERM, INC.
Date: June 28, 1996 By: /s/ STACY WAGNER
----------------------------------------
Stacy Wagner
V.P. of Finance
Date: June 28, 1996 By: /s/ RONALD S. DEFERRARI
----------------------------------------
Ronald S. Deferrari
President, Chief Operating Officer
-17-
<PAGE> 1
EXHIBIT 3.4
ARTICLES OF AMENDMENT
OF THE
ARTICLES OF INCORPORATION
OF
PLASMA-THERM, INC.
Plasma-Therm, Inc., a corporation organized and existing under
the laws of the State of Florida (the "Corporation"), in order to amend its
Articles of Incorporation in accordance with the requirements of Chapter 607,
Florida Statutes, does hereby certify as follows:
1. The Amendment to the existing Articles of Incorporation, as
amended previously, being effected hereby is the addition of the following new
paragraph to Article IX dealing generally with shareholder meetings:
*************************************************************
Any action required or permitted to be taken at any annual or
special meeting of shareholders of this corporation may be taken only upon the
vote of such shareholders at an annual or special meeting duly called, and may
not be taken by written consent of such shareholders without a meeing.
**************************************************************
2. This Amendment to the Articles of Incorporation was
approved by a majority vote of the stockholders, on the 30th day of April, 1996,
and such vote of the stockholders was sufficient for approval of this Amendment.
3. These Articles of Amendment of the Articles of
Incorporation shall be effective immediately upon filing by the Secretary of the
State of Florida, all required taxes and fees having been paid.
IN WITNESS WHEREOF, Plasma-Therm, Inc. has caused these
Articles of Amendment of the Articles of Incorporation to be executed by its
President and Secretary this 3rd day of May, 1996.
ATTEST: PLASMA-THERM, INC.
(CORPORATE SEAL)
/s/ Diana M. DeFerrari /s/ Ronald S. Deferrari
- ---------------------------------- ----------------------------------------
Diana M. DeFerrari, Secretary Ronald S. Deferrari, President
<PAGE> 1
EXHIBIT 10.41
NationsBank(R)
NationsBanc Leasing Corporation Note and Security Agreement
- --------------------------------------------------------------------------------
This Note and Security Agreement made as of the date set forth below sets forth
the terms and conditions governing the repayment of a loan made by NationsBanc
Leasing Corporation ("Secured Party") to the party identified below as "Debtor"
for the purpose of financing the personal property identified below as the
"Equipment", and the granting by Debtor to Secured Party of a security interest
in the Equipment and certain related property to secure the repayment of all
Debtor's obligations to Secured Party.
Date: 3/8/96 Agreement Number: 07186-00702
Secured Party: NationsBanc Leasing Corporation
2300 Northlake Centre Drive, Suite 300
Tucker, Georgia 30084-4007
Debtor: Plasma-Therm, Inc.
Equipment: See Exhibit "A" attached hereto and made a part hereof
Equipment Location:
<TABLE>
<CAPTION>
Location Address City County ST Zip
-------- ------- ---- ------ -- ---
<S> <C> <C> <C> <C> <C> <C>
A 9509 International Ct Saint Petersburg Pinellas FL 33716 OR **
** 10050 Sixteenth Street North Saint Petersburg Pinellas FL 33716 On or after
June 1, 1996.
</TABLE>
Principal Amount of Loan: $132,032.46
Number of Repayment Installments (Including Final Repayment Installment): 36
Amount of Each Repayment Installment Prior to Final Repayment Installment:
$4,105.45
Amount of Final Repayment Installment: $4,105.45
Due Date of First Repayment Installment: On the date Secured Party funds this
Loan.
Interest Rate. A per annum rate of interest equal to (i) 7.92% percent (Seven
And 92/100) or (ii) if less, the highest rate of interest permitted by
applicable law.
Loan; Terms of Repayment. In consideration of the making of a loan by Secured
Party to Debtor for the purpose of financing the Equipment specified above (the
"Loan"), Debtor promises and agrees to pay to the order of Secured Party, at
Secured Party's address stated above or at such other places as Secured Party
may from time to time designate in writing, the principal amount of the Loan,
together with interest calculated as hereinafter provided. Subject to Debtor's
right to prepay such principal amount in whole or in part as hereinafter
provided, Debtor shall pay such principal amount together with interest thereon
in consecutive monthly installments, each in the amount set forth above under
the heading "Amount of Each Repayment Installment Prior to Final Repayment
Installment," due and payable on the "Due Date of First Repayment Installment"
set forth above and on a like date of each calendar month thereafter until the
Loan is fully repaid; provided, however, that the last such installment shall be
in the amount set forth above under the heading "Amount of Final Repayment
Installment" or (if greater) the amount of the then outstanding principal
balance of the Loan together with interest thereon.
Interest. Interest shall be calculated on the basis of a year of three hundred
sixty (360) days. Each installment shall include all interest accrued through
the due date of such installment.
Prepayments. After one (1) year from the date Secured Party funds this Loan, the
outstanding principal balance of the Loan may be prepaid in whole or in part at
any time, together with all interest and late charges accrued through the date
of prepayment. Except as provided herein, the Loan may not be prepaid.
<PAGE> 2
Late Charges. To the extent permitted by applicable law, Debtor shall pay on
demand, as a late charge, an amount equal to five percent (5%) of each
installment or part thereof that is not paid within ten (10) days of the date
when due, but nothing in this paragraph alters the definitions of events of
default hereunder. Debtor shall pay the late charge, to the extent permitted by
applicable law, regardless of whether or not Debtor's failure to pay such
installment when due is or becomes a default hereunder and regardless of whether
or not Secured Party proceeds under the "Remedies" provisions hereof or takes
any other action, and demand for and collection of the late charge shall not be
deemed a waiver of default or of any other remedies or rights.
Security Interest. Debtor hereby grants to Secured Party a security interest in
and security title to the personal property described above as the "Equipment",
together with all parts, additions, accessions, accessories, replacements and
substitutions thereto or therefor, and all proceeds therefrom (including any
proceeds of insurance against fire or other casualty whether or not the
insurance policy contains an endorsement in favor of Secured Party), all of
which is hereinafter called the "Collateral". This security interest is given to
secure payment to Secured Party of all present and future obligations of Debtor
to Secured Party, including without limitation the obligation of Debtor to repay
the Loan and all other liabilities arising under or in connection with this
Agreement; all future advances, if any, made by Secured Party to Debtor, whether
or not made pursuant to any commitment of Secured Party (and nothing in this
Agreement shall be construed to create or imply the existence of any such
commitment); and all other liabilities of Debtor to Secured Party now existing
or hereafter incurred, matured or unmatured, direct or contingent, whether or
not evidenced by a promissory note, and whether owing originally to Secured
Party or acquired by Secured Party from any other party, and any renewals and
extension thereof and substitutions therefor. (All of the above obligations,
including but not limited to obligations in respect of the Loan, are hereinafter
called the "Indebtedness.")
Debtor Warrants and Represents that:
Good Standing. Debtor is organized and existing in good standing under the laws
of the jurisdiction of its formation, has the power to own its property and to
carry on its business as now being conducted, and is duly qualified to do
business and is in good standing in each jurisdiction in which the character of
the property owned by it therein or the transaction of its business makes such
qualification necessary.
AUTHORITY. Debtor has full power and authority to enter into this Agreement, to
make the borrowing hereunder, and to incur the obligations provided for herein,
all of which have been duly authorized by all proper and necessary action. No
consent or approval of stockholders, partners, members or co-owners or of any
public authority is required as a condition to the validity of this Agreement.
BINDING AGREEMENT. This Agreement constitutes the valid and legally binding
obligation of Debtor enforceable in accordance with its terms.
LITIGATION. There are no proceedings pending or threatened before any court or
administrative agency that might materially adversely affect the financial
condition or operation of Debtor.
NO CONFLICTING AGREEMENTS. There is no charter, by-law, preference stock or
partnership agreement provision of Debtor and no provision of any other
organizational documents or existing mortgage, indenture, contract or agreement
binding on Debtor or affecting its property which would conflict with or in any
way prevent the execution, delivery or performance of the terms of this
Agreement.
OWNERSHIP FREE OF ENCUMBRANCES. Except for the security interest granted hereby,
Debtor now owns, or will use the proceeds hereof to become the owner of, the
Collateral free from any prior lien, security interest or encumbrance. No
financing statement covering the Collateral or any proceeds thereof is on file
in any public office, except for financing statements showing Secured Party as
the sole secured party thereunder. Debtor has a good right to grant a security
interest in the Collateral to Secured Party.
FIXTURES. None of the Collateral is now a part of or affixed to any real
property.
COLLATERAL LOCATION. Except for items of Collateral that constitute mobile goods
and that are in fact in use by Debtor in the ordinary course of its business at
other locations, all the Collateral comprising goods heretofore delivered to the
Debtor by the seller thereof is located either at (i) Debtor's address set forth
above or (ii) the "Equipment Location" set forth above.
DEBTOR COVENANTS AND AGREES THAT UNTIL ALL THE INDEBTEDNESS IS FULLY SATISFIED:
<PAGE> 3
INSURANCE. Debtor shall maintain continuously, and pay when due all premiums
for, fire and casualty insurance with extended coverage on the Collateral,
insuring the same against loss by fire, explosion, theft and such other
casualties as are usually insured against by companies engaged in the same or
similar businesses with a responsible company or companies satisfactory to
Secured Party, in an amount not less than the unpaid balance of the Loan. Each
of such insurance policies shall have attached thereto a standard loss payable
endorsement, without contribution, in favor of Secured Party as its interest may
appear; shall provide that it may not be canceled without thirty (30) days'
prior written notice to Secured Party; shall provide that, in respect of Secured
Party's interest in such policy, the insurance shall not be invalidated by any
action or inaction of Debtor or any other person (other than Secured Party);
shall insure Secured Party's interest in the Collateral as it may appear,
regardless of any breach or violation of any warranty, declaration or condition
contained in such policy by Debtor or any other person (other than Secured
Party); and shall otherwise be in form and substance acceptable to Secured
Party. Debtor shall deliver forthwith to Secured Party each such policy
(together with the loss payable endorsement), or certificates of insurance or
other evidence satisfactory to Secured Party of the existence of all required
insurance, its terms and conditions, and the payment of all applicable premiums.
Similar evidence of renewal coverage, satisfactory to Secured Party, shall be
delivered to Secured Party at least fifteen (15) days before the expiration of
any initial insurance coverage. In addition, Debtor shall maintain, and pay when
due all premiums for, liability and other insurance in such amounts and against
such risks as is customarily carried by persons in similar businesses owning
similar property. Debtor irrevocably appoints Secured Party as Debtor's
attorney-in-fact, with full power of substitution, during the existence of any
default under this Agreement, to execute loss claims and other applications for
payment of benefits under any insurance policy in the name of Debtor or Secured
Party, to receive all monies and to endorse drafts, checks and other instruments
for the payment of any proceeds of any insurance. This appointment shall be
deemed a power coupled with an interest and shall not be terminable by Debtor so
long as Debtor remains indebted to Secured Party.
MAINTENANCE AND CLEAR TITLE. Debtor shall keep the Collateral in good condition
and free from liens and security interests, shall not sign or suffer to be filed
any financing statements relating to the Collateral except those showing Secured
Party as sole secured party shall not sell or lease or offer to sell or lease or
otherwise encumber or dispose of any of the Collateral, shall defend the
Collateral against all claims and demands of all persons at any time claiming
any interest or right therein, and shall not use the Collateral illegally. Upon
reasonable notification, Secured Party may examine and inspect the Collateral at
any time, wherever located.
CHANGE OF NAME, RESIDENCE OR PLACE OF BUSINESS. Debtor shall not change its
name, residence or place of business or do business under any assumed or
fictitious name without giving Secured Party at least thirty (30) days prior
written notice.
CHANGE OF STRUCTURE. Debtor shall maintain its existence, and shall not merge or
consolidate with or into any other entity or sell substantially all of its
assets without prior written consent of Secured Party, which consent will not be
unreasonably withheld.
USE OF COLLATERAL. Debtor shall use the Collateral exclusively for business
operations.
FIXTURES. Debtor shall not permit any of the Collateral to become a part of or
affixed to any real property.
LOCATION OF COLLATERAL. Except for items of Collateral that constitute mobile
goods and that are in fact in use by Debtor in the ordinary course of business
at other locations, all the Collateral shall, from and after the moment that
Debtor acquires possession or control of it, be kept either at (i) Debtor's
address set forth above or (ii) the "Equipment Location" set forth above, and
all records relating to the Collateral shall likewise be kept only at such
location or locations. If at any time the Collateral, or any part thereof, is
removed to a new location, Debtor: (a) shall provide written notice thereof to
Secured Party within thirty (30) days from the date of such relocation; and (b)
either (i) the premises in which such Collateral will be installed will be owned
by Debtor free of any liens or encumbrances, or (ii) if not owned by Debtor free
of liens or encumbrances, the owner of such premises and/or the holder of any
such liens or encumbrances on such premises shall have consented and acknowledge
the superiority of Secured Partys interest in such Collateral.
INDEMNIFICATION. Debtor shall indemnify Secured Party against all claims arising
out of or connected with the ownership or use of the Collateral.
MOTOR VEHICLES. If the Collateral consists of or includes motor vehicles or
other equipment for which there is a certificate of title evidencing ownership
thereof, Debtor shall forthwith cause each certificate to be endorsed over and
the lien of Secured Party to be noted so as to show Secured Party's interest,
and Debtor shall deliver forthwith each such certificate to Secured Party.
TAXES. Debtor shall pay promptly when due all taxes, charges and assessments
that are or may become a lien on the Collateral or any part thereof, except to
the extent that the same are contested in good faith and by appropriate
proceedings.
FINANCIAL STATEMENTS. During the term of this Loan, Debtor (i) shall furnish
Secured Party annual balance sheets and profit and loss statements of Debtor and
of any guarantor of Debtors obligations hereunder within 120 days after the end
of Debtors (and any guarantors) fiscal year, and (ii) at Secured Partys request,
shall furnish Secured Party all other public financial information and reports
reasonably requested by Secured Party at any time, including quarterly balance
sheets and profit and loss statement of Debtor and of any such guarantor. Debtor
shall furnish such other information as Secured Party may reasonably request at
any time concerning the Debtor including without limitation information
concerning the Collateral. Debtor represents and warrants that all information
furnished and to be furnished by Debtor to Secured Party is accurate and that
all financial statements Debtor has furnished and hereafter may furnish to
Secured Party, including operating' statement and statements of condition, are
and will be prepared in accordance with generally accepted accounting
principals, consistently applied, and reasonably reflect and will reflect, as of
their respective dates, results of the operations and financial condition of
Debtor and of any other entity they purport to cover.
<PAGE> 4
REIMBURSMENT FOR EXPENSES. At its option, and with no obligation to do so,
Secured Party may (i) if an event of default exists, discharge taxes or other
encumbrances on the Collateral, or pay for the repair, maintenance and
preservation of the Collateral and (ii) ten (10) days after notifying Debtor of
Secured Partys intent to do so, arrange and pay for insurance on the Collateral.
Debtor agrees to reimburse Secured Party on demand for any payments so made;
Debtor also agrees to reimburse and pay to Secured Party on demand all expenses
incurred or paid by Secured Party in perfecting the security interest granted
hereunder and in collecting the Indebtedness and in protecting or enforcing
Secured Party's rights under this Agreement, including but not limited to
reasonable attorney's fees and legal expenses. Until Debtor makes such
reimbursement, the amount of all such payments and expenses, with interest at
the rate then applicable to principal installments of the Loan not paid when
due, from the date of payment until reimbursement, shall be added to the
Indebtedness and shall be secured by the security interest granted by Debtor
under this Agreement. Nothing in this paragraph relieves Debtor of the duty to
care for, insure and protect the Collateral and Secured Party's interests
therein and to pay tax on or related to the Collateral, or of any other duty.
SALE OR REPLACEMENT OF COLLATERAL. Debtor shall not sell or replace any item or
part of the Collateral without the prior written consent of Secured Party.
POST DEFAULT INTEREST. Any principal balance not paid when due (whether by
acceleration or otherwise) shall accrue interest at the Default Rate until such
principal balance is paid. Default Rate shall be a per annum rate of interest
equal to (i) fifteen percent (15.0%) or (ii), if less, the highest rate of
interest permitted by applicable law. Secured Party may, at its option, apply
late payments (either in full or partial) in the following manner: first to
interest, then to principal, and finally to late charges. To the extent
permitted by applicable law, Debtor shall pay interest on delinquent principal
installments on demand regardless of whether or not Secured Party proceeds under
the Remedies provisions hereof or takes any other action, and demand for and
collection of interest on such overdue installments at the Default Rate shall
not be deemed a waiver of default or of any other remedies or rights.
EVENTS OF DEFAULT. Debtor shall be in default under this Agreement upon the
happening of any of the following events or conditions, each of which is an
event of default:
1. Default shall be made in the payment of any installment of the Loan, or in
the payment of any other Indebtedness, when and as the same becomes due and
payable, whether at the stated maturity thereof or by acceleration or otherwise,
and such default shall continue unremedied for ten (10) days; or
2. Default shall be made in the due observance or performance of any term,
covenant or agreement contained in this Agreement (other than covenants and
agreements to pay Indebtedness), and such default shall continue unremedied for
ten (10) days after written notice thereof is given by Secured Party to Debtor;
or
3. Any representation or warranty made by Debtor in this Agreement, or any
statement or representation made in any certificate, report or opinion delivered
pursuant hereto, or in connection herewith, shall prove to have been incorrect
in any material respect when made; or
4. The Collateral shall be lost, stolen, substantially damaged, destroyed
(unless (i) such occurrence is fully covered by insurance, and (ii) the Loan is
fully repaid within ninety (90) days after such occurrence), or shall be sold or
encumbered; or Debtor's rights in the Collateral shall be voluntarily or
involuntarily transferred, by way of sale, lease or creation of a security
interest, or by way of attachment, levy, garnishment or other judicial process,
or otherwise; or
5. Debtor shall become insolvent or be generally unable to meet its obligations
as they mature, make an assignment for the benefit of creditors, admit in
writing its inability to pay its debts as they mature, or suspend the operation
of its present business; or
6. A trustee, receiver or custodian shall be appointed for Debtor or for a
substantial part of its property without the consent of Debtor and not be
discharged within thirty (30) days; or
7. Bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings shall be instituted by or against Debtor, and, if instituted against
Debtor, be consented to or remain undismissed for a period of thirty (30) days;
or
8. An event described in Section 6, 7, or 8 shall occur with respect to any
party who is guarantor or surety for the Indebtedness; or
9. Any default shall be made by Debtor in any obligation for the payment of
borrowed money or capitalized leases or any such obligation shall become or be
declared to be due and payable prior to the original stated maturity thereof or
10. Liquidation or dissolution of Debtor; or
11. Sale, transfer or exchange, directly or indirectly, in one or more
transactions, of a controlling stock interest in Debtor without the prior
written consent of Secured Party, which consent shall not be unreasonably
withheld; or suspension of Debtor's present business; or
12. The Pension Benefit Guaranty Corporation shall commence proceedings under
Section 4042 of the Employee Retirement Income Security Act of 1974 to terminate
any employee pension benefit plan of Debtor; or
13. The attempted repudiation of any guaranties for obligations of Debtor to
Secured Party.
<PAGE> 5
REMEDIES. Upon any event of default and at any time thereafter, Secured Party
may declare all the Indebtedness immediately due and payable in full (unless
such event of default comprises one or more of the events described in
paragraphs 7 or 8 above, in which case all the Indebtedness shall become
immediately due and payable in full without declaration, notice or other action
on the part of Secured Party), and may proceed to enforce payment thereof and
exercise any and all of the rights and remedies provided by the Uniform
Commercial Code as well as all other rights and remedies of Secured Party
hereunder or under other applicable law. Upon the occurrence of an event of
default, Debtor shall, upon demand by Secured Party, assemble the Collateral and
make it available to Secured Party at a place designated by Secured Party
reasonably convenient to both parties. Secured Party may, at its election,
enforce its rights under this Agreement by a suit in equity for specific
performance. Debtor grants Secured Party the right to enter upon any premises of
Debtor for the purpose of recovering possession of the Collateral or any part
thereof after the occurrence of an event of default, or for the preservation or
enforcement of Secured Party's other rights hereunder, all without demand or
notice to Debtor and without judicial hearing or proceedings, which Debtor
hereby expressly waives. The requirements of reasonable notice shall be deemed
met if such notice is mailed to an address of Debtor shown at the beginning of
this Agreement at least ten (10) days before the time of the sale or
disposition, but nothing contained herein shall be construed to mean that other
notice or a shorter period of time does not constitute reasonable notice of the
sale or other disposition of the Collateral. Debtor shall reimburse Secured
Party for all Secured Party's expenses of retaking, holding, preparing for sale,
selling or otherwise dealing with or disposing of the Collateral, including
attorney's fees in the amount of fifteen percent (15%) of the outstanding
principal balance of and interest on the Indebtedness (but not to exceed the
amount of attorneys fees actually incurred) if collection is by or through an
attorney at law. Subject to applicable law, Debtor shall pay any Indebtedness
remaining unpaid after sale or other disposition of any or all of the
Collateral. Any surplus proceeds from the sale or other disposition of the
Collateral remaining after full satisfaction of the Indebtedness shall be paid
to Debtor or to such other persons as may be entitled thereto under applicable
law.
CUMULATIVE RIGHTS AND NO WAIVER. Each and every right granted to Secured Party
hereunder or in connection herewith, or allowed it by law or equity, shall be
cumulative and may be exercised from time to time. No failure on the part of
Secured Party to exercise, and no delay in exercising, any right shall operate
as a waiver thereof, nor shall any single or partial exercise by Secured Party
of any right preclude any other or future exercise thereof or the exercise of
any other right.
FINANCING STATEMENTS. Debtor shall sign and deliver to Secured Party such
financing statements and other documents as Secured Party may deem necessary to
perfect, protect and continue its security interest in the Collateral, in form
satisfactory to Secured Party. Debtor will reimburse Secured Party for all
expenses incurred in the filing of financing statements, continuation
statements, termination statements and any other documents relating to the
perfection of Secured Party's security interest in the Collateral. A carbon,
photographic or other reproduction of this Agreement or of a financing statement
relating to the security interest herein granted is suffficient as a financing
statement. Debtor authorizes Secured Party to file financing statements as to
the Collateral signed only by Secured Party and not by Debtor. The foregoing
authorization shall not, however, be used unless and until an event of default
hereunder has occured.
SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
ASSIGNABILITY. Debtor acknowledges that the rights of Secured Party may be
assigned to any person in whole or in part at the sole discretion of Secured
Party, and Debtor agrees that any defense it may have against Secured Party as
to events occurring prior to any assignment shall not be asserted, and shall be
void, against any assignee of the rights of Secured Party. Debtor shall not
assign any of its rights or obligations under this Agreement to any person
without the prior written consent of Secured Party, and in the absence of such
prior written consent, no such assignment of any right or obligation of Debtor
hereunder shall be binding on Secured Party. Subject to the foregoing
limitations, the terms and conditions of this Agreement shall be binding on and
shall inure to the benefit of the heirs executors, administrators, successors,
and assigns of the parties.
WARRANTY DISCLAIMER. SECURED PARTY IS NOT A MANUFACTURER OR SELLER OF THE
COLLATERAL AND MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE COLLATERAL,
INCLUDING WITHOUT LIMITATION WARRANTIES OF TITLE, MERCHANTABILITY OR FITNESS FOR
ANY PARTICULAR PURPOSE. DEBTOR SHALL NOT ASSERT ANY BREACH OF ANY SUCH WARRANTY
AS A DEFENSE TO ANY OF ITS OBLIGATIONS TO SECURED PARTY UNDER THIS AGREEMENT;
HOWEVER, NOTHING IN THIS AGREEMENT SHALL BE CONSTRUED TO IMPAIR ANY OF DEBTOR'S
REMEDIES FOR BREACH OF WARRANTY AGAINST ANY SELLER OR MANUFACTURER OF THE
COLLATERAL.
GOVERNING LAW; CONSENT TO VENUE AND PERSONAL JURISDICTION. THIS AGREEMENT SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF GEORGIA AS OF THE DATE HEREOF. IF THE ADDRESS OF DEBTOR'S RESIDENCE OR
PRINCIPAL PLACE OF BUSINESS SHOWN HEREIN IS NOT IN THE STATE OF GEORGIA, DEBTOR
CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION OVER DEBTOR BY ANY COURT OR
RECORD SITTING IN THE STATE OF GEORGIA IN CONNECTION WITH ANY ACTION ARISING OUT
OF THIS AGREEMENT, AND WAIVES ALL OBJECTIONS TO SERVICE OF PROCESS ON DEBTOR AT
SUCH ADDRESS
<PAGE> 6
WAIVER OF JURY TRIAL. SECURED PARTY AND DEBTOR EACH WAIVE TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER OF THE PARTIES AGAINST THE
OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS
AGREEMENT.
IN WITNESS WHEREOF, the parties have caused their names to be signed and their
seals affixed as of the date first above written. By execution hereof, each
party intends and agrees to be legally bound by all the provisions of this
Agreement.
NATIONSBANC LEASING CORPORATION PLASMA-THERM, INC. (Debtor)
(Secured Party)
By:___________________________________ By:___________________________________
Printed Name:_________________________ Printed Name:_________________________
Title:________________________________ Title:________________________________
<PAGE> 7
<TABLE>
<CAPTION>
NationsBank(R) Exhibit A to
NationsBanc Leasing Corporation Note and Security Agreement
- -----------------------------------------------------------------------------------------------------------
Debtor: Plasma-Therm, Inc.
Note and Security Agreement Number: 07186-00702
QUANITY: Description SerialNumber CustomerRef:
-------- ----------- ------------ ------------
<S> <C> <C> <C> <C>
1 Multibay Expansion Base LTE 50
1 PL 1500R.P.133.1.44F.32M 6542hsw10351
1 64MD MEM EXP KIT (2x32/7ONS)
4 Pluggable SCSI-2 HD 4.3GB
1 CNTRL.CPQ SMART SCS1 Array
1 Keyboard/Monitor Shelf Kit
1 Keyboard.Internal.F/Rack
1 Trackball F/Rack
1 MT-6W Paper WHT SVGA Mono SCEP ET5A30818
1 Power Chute V4.0 F/Windows
1 Surestr 6000I.8GB.INT SCSI
1 Rack Mount UPS. Hot Swap
1 Compaq Misc. Rail Kit
7 Deskpro 5/100 8/630MB 4x4
552hsi7d346 552hsi7d892 552hsi7d446 552hsi7d895 55shsi7d462
552hsi7d850 552hsi7d630
1 Netflex - 3/P Controller
1 Netflex -3 100 base-TX Module
1 Lattisswitch 10/100MD UTP SYNO
6 D093095 LB FMS 24 PT TP HB.24
1 LB FMS 100 TX Fastnet HUB
1 Elink III 16 Bit, ISA Combo, 1pk
1 Deskpro 5/100 8/630MB 4x4 sa552hsi7d840
1 14" .39 SVGA INT UNBrANDED Monitor ET5A32482
1 Deskpro XL 5/133 16MD 2100ML 7550HSN32675
1 CD INT Quadspeed, SCSI
1 Pro.28.V.34.F A/Autosync
1 32MB Deskpro XL
1 LTE 5000 5/75 M510 10.4" CSTN 551HQV70191
1 14" .39 SVGA INT UNBRANDED Monitor ET5A32032
1 Keyboard, Enhanced SLT
1 Creditcard CTHRNET+Modem 28.8
1 Compaq Mouse
7 14" .39 SVGA INTUNBRANDED Monitor
et5a31762 et5a31764 et5a31777 et5a31821 et5a31953
et5a31960 et5a31963
1 Multibay Expansion Base LTE 50
1 LTE 5000 5/75 M510 10.4" CSTN j551hav71576
1 64MB MEM Expansion Kit
1 Creditcard ETHRNET+Modem 28.8
70 Network Cable
1 Linkbuilder FMS 100 TX Trans M
1 8MB Memory Module LTE 5000 510
1 Compaq Leather Case Black
1 NIMH Battery Pack LTE 5000 510
1 Linkbuilder FMS 100 TX Trans M
1 4 GB SE SCSI-2 Disk in Minitower SG41001378 Box# 079
1 SCSI terminator, LDBL50
1 SCSI cable, 1.5mHDTS50
1 Freight
1 Add on 128 MB memory module Box #41472
</TABLE>
<PAGE> 8
<TABLE>
<CAPTION>
QUANTITY: Description: SerialNumber: CustomerRef:
--------- ------------ ------------- ------------
<S> <C>
1 Honeywell Protection Services Security and
Fire System Consisting of:
1 Honeywell 5800FA Central Monitoring Station
2 UL Power Supplies, Point/Zone Expander,
Interior Siren, Manual Pull Stations,
Smoke/Heat Detector, ADA Horn/Strobe and
ADA Strobes.
1 Honeywell Protection Services Access Control
System consisting of:
1 Honeywell MicroLPM-12 Central Monitoring
Station with UL Listed Power supplies,
Access Control Software, RS485 Communication
Boar, Proximity Reader, REX, Single Magnetic
Sensor & Double Magnetic Sensors
14 Honeywell Photoelectric Duct Detectors, with
sampling tube, Remote LED for alarm
indication & Remote Keyswitch
200 Honeywell Access Control Cards
Freight
Taxes
</TABLE>
NationsBanc Leasing Corporation (Secured Party) Plasma-Therm, Inc. (Debtor)
By:_____________________________________ By:___________________________
Printed Name:___________________________ Printed Name:_________________
Title:__________________________________ Title:________________________
Secured Party Initial:__________________ Debtor Initial:_______________
<PAGE> 1
EXHIBIT 10.42
EXTENSION AGREEMENT
THIS EXTENSION AGREEMENT (the "Agreement"), effective as of June 14,
1996, between PLASMA-THERM, INC., a Florida corporation (the "Borrower"), whose
principal place of business is 9509 International Court North, St. Petersburg,
Florida 33716, and NATIONSBANK, N.A. (SOUTH), f/k/a NATIONSBANK OF FLORIDA,
N.A., a national banking association (the "Lender"), whose address is 400 N.
Ashley Drive (FL1-010-07-01), Tampa, FL 33602, Attn: Real Estate Loan
Administration.
WHEREAS, on or about August 14, 1995, Borrower executed a Promissory
Note in favor of Lender in the principal amount of THREE MILLION THREE HUNDRED
SEVENTY-FIVE THOUSAND AND NO/100 DOLLARS ($3,375,000.00) (the "Note").
WHEREAS, the Note was secured by among other documents, a Mortgage,
Assignment of Rents and Security Agreement, UCC-1 Financing Statements, Amended
and Restated Revolving Credit Agreement, as amended, Construction Loan Agreement
and Environmental Indemnity Agreement (all of the loan documents being
collectively referred to herein as the "Loan Documents").
WHEREAS, the proceeds of the Note have been used by the Borrower to
construct a 60,639.50 square foot (MOL) office/manufacturing facility, including
leasehold improve ments, on certain property located in Pinellas County, Florida
and more particularly described in Exhibit "A" attached hereto and by this
reference made a part hereof (the "Property").
WHEREAS, pursuant to the terms of the Note, Borrower has delivered
written notice to Lender of its intention to exercise its option to extend the
Maturity Date (as defined in the Note) to the date of June 14, 2001 ("Extension
Maturity Date"), and to begin making the payments which are due during the "Term
Phase" (as said term is defined in the Note) of the loan.
WHEREAS, one of the conditions for extension of the Maturity Date as
set forth in the Note is that the construction of the Improvements (as defined
in the Construction Loan Agreement) must be completed and the Borrower must
submit an acceptable title policy or current "update" endorsement to the Lender.
WHEREAS, on the date hereof, the Improvements are not complete and the
final "update" endorsement has not yet been issued.
WHEREAS, on the date hereof, the unadvanced portion of the loan is
$195,919.00. Borrower represents that such sum is sufficient to complete the
<PAGE> 2
Improvements in accordance with the signed and sealed plans and specifications
and change orders for the project previously submitted to and approved by the
Lender.
WHEREAS, Borrower has requested that it be permitted to commence the
Term Phase of the loan, and Lender has consented thereto, subject to Lender's
disbursement of the unadvanced portion of the loan into an interest bearing
money market account at Lender institution, titled in the Borrower's name, in
which Lender has withdrawal authority for the purpose of making the remaining
construction advances requested by Borrower, pursuant to the terms of the
Construction Loan Agreement. Said account has been established by the Lender on
behalf of the Borrower as Account No. (to be determined) (the "Account"), and
Lender has disbursed the sum of $195,919.00 into the Account.
WHEREAS, as a further condition to commencing the Term Phase of the
loan, Lender requires that the Account be pledged as additional collateral for
the loan.
NOW, THEREFORE, it is agreed as follows:
1. The Term Phase of the Note and loan shall commence as of June 14,
1996, and the repayment terms set forth in the Note which are applicable to the
Term Phase shall apply, such that equal monthly payments of principal and
interest in the amount of $33,234.96 shall be due and payable and shall be paid
commencing on the fifteenth (15th) day of July, 1996 and shall continue on the
fifteenth (15th) day of each subsequent month thereafter until the Extension
Maturity Date. Said monthly installment amount was calculated based upon an
interest rate of eight and one-half percent (8.5%) per annum and a fifteen (15)
year amortization period.
2. Borrower hereby pledges, grants and conveys to Lender a security
interest in all funds in the Account, as additional collateral for the loan.
Upon an event of default (as defined in the Loan Documents), Lender may (but
shall have no obligation to) apply all or any part of the proceeds in the
Account against the unpaid indebtedness of the Note in such order as Lender
determines. As long as the loan is current and not in default, Borrower shall
have the right to apply for disbursement of the proceeds in the Account for
completion of construction of the Improvements in accordance with the procedures
set forth in the Construction Loan Agreement for obtaining advances.
3. As long as the loan is current and not in default, the proceeds in
the Account shall be advanced by Lender for the account of Borrower pursuant to
the terms and conditions for advances set forth in Exhibit "F" of the
Construction Loan Agreement, and Borrower agrees to provide all such
documentation which is required in said Exhibit "F" in order to obtain an
advance(s), including but not limited to delivery of an acceptable title policy
"update" endorsement. The proceeds may be advanced in the form of an interim
draw and a final draw, or in the form of a final draw only at Borrower's
election.
2
<PAGE> 3
Borrower acknowledges that one of the conditions for obtaining a final
draw is to provide Lender proof of payment of its equity contribution of
$199,094.40.
4. Except as set forth herein, all terms, conditions and covenants of the
Note and all Loan Documents shall remain the same and shall be fully binding
upon and enforceable by the Lender and Borrower pursuant to their terms.
IN WITNESS WHEREOF, Borrower and Lender have executed this Agreement on
the ________ day of June, 1996.
Signed, sealed and delivered in the presence of:
PLASMA-THERM, INC., a Florida corpora
tion
/s/Maureen A. Nelson
- ----------------------------------
(Signature of Witness) By: /s/Ronald S. Deferrari
----------------------
Maureen A. Nelson Ronald S. Deferrari
- ---------------------------------- President
(Print Name of Witness)
Lisa L. Disotelle
- -----------------
(Signature of Witness) (CORPORATE SEAL)
Lisa L. Disotelle
- -----------------
(Print Name of Witness)
NATIONSBANK, N.A. (SOUTH), f/k/a
NATIONSBANK OF FLORIDA, N.A., a
national banking association
/s/Jodel Doak
- ----------------------------------
(Signature of Witness) By: /s/ James E. Harden, Jr.
Jodel Doak -------------------------
- ---------------------------------- James E. Harden, Jr.
(Print Name of Witness) Vice President
/s/Marta Schiro (CORPORATE SEAL)
- ----------------------------------
(Signature of Witness)
Marta Schiro
(Print Name of Witness)
3
<PAGE> 4
STATE OF FLORIDA )
COUNTY OF PINELLAS )
The foregoing instrument was acknowledged before me this 14
day of June, 1996, by RONALD S. DEFERRARI, as the President of PLASMA-THERM,
INC., a Florida corporation, on behalf of the corporation. He /X/ is personally
known to me or / / has produced as identification.
(SEAL) /s/ Jill R. Street
----------------------------------------
Jill R. Street
--------------
(Print Name of Notary Public)
My Commission Expires: 4/26/2000 Notary Public
"Official Seal:
Jill R. Street
My Commissions Expires 4/26/2000
Commission #CC 550146
STATE OF FLORIDA )
COUNTY OF )
---------------
The foregoing instrument was acknowledged before me this _____ day of
June, 1996, by JAMES E. HARDEN, JR., as the Vice President of NATIONSBANK, N.A.
(SOUTH), f/k/a NATIONSBANK OF FLORIDA, N.A., a national banking association, on
behalf of the association. He / / is personally known to me or / / has produced
_____________________________ as identification.
/s/ Marta E. Schiro
----------------------------------------
Marta E. Schiro
----------------------------------------
(SEAL) (Print Name of Notary Public)
Notary Public
Office Notary Seal
My Commission Expires: Marta E. Schiro
Notary Public State of Florida
My Commission Exp. July 26, 1999
4
<PAGE> 5
EXHIBIT "A"
LEGAL DESCRIPTION
Lots 28, 29, 30, 31 and the Northerly 130 feet of Lot 27, all in Block
C of METROPOINTE COMMERCE PARK PHASE II, according to the map or plat
thereof recorded in Plat Book 103, pages 25 and 26, Public Records of
PINELLAS County, Florida.
5
<PAGE> 6
EXHIBIT 10.42
VIA FACSIMILE
NATIONSBANK
June 17, 1996
Mr. Ronald S. Deferrari, President
Plasma-Therm, Inc.
9509 International Court
St. Petersburg, FL 33716
Re: Extension Agreement Acceptance
NationsBank Construction Loan #2514896-380
Dear Mr. Deferrari:
Please find enclosed an original Extension Agreement ( "agreement") executed by
Jamie Harden of NationsBank , to acknowledge our acceptance. Please be advised
that in addition to the agreement, NationsBank will accommodate this request for
a time period of up to six months . This should allow sufficient amount of time
to complete post-construction items remaining, and process all additional draw
requests from June 14, 1996 to December 14, 1996.
If you are in agreement with the above expiration date, please sign below as
your acknowledgment, and return as soon as possible.
Thank you very much, and if there are any questions, please contact myself or
Jamie Harden.
Sincerely,
/s/ Jodel Doak
Jodel Doak
Real Estate Administration Officer
(813) 224-5549
Acknowledged by:
PLASMA-THERM, INC., a Florida corporation
/s/ Ronald S. Deferrari
By: Ronald S. Deferrari, President
<PAGE> 1
EXHIBIT 10.43
between
Robert Bosch GmbH
Postfach 10 60 50
D-70049 Stuttgart
Federal Republic of Germany
- - hereinafter called "Licensor" -
and
Plasma-Therm, Inc.
9509 International Court
St.-Petersburg, FL 33716
United States of America
- - hereinafter called "Licensee" -
WHEREAS Licensor has developed a new plasma process for the deep anisotropic
etching of structures for micromachining purposes and has obtained a Patent in
Germany and submitted Patent Applications in certain other countries for the
same.
WHEREAS Licensee wishes to commercialise this Process to manufacture and sell
equipment capable of carrying out the Process.
NOW, it is hereby agreed as follows:
1. DEFINITIONS
1.1 "Equipment" means equipment manufactured by or for the Licensee which
incorporates one or more process Chambers;
-2-
<PAGE> 2
1.2 "Know-How" means the body of knowledge, technical experience, skills,
secret processes, technical and confidential information acquired by the
Licensor in the development of the Process;
1.3 "Licensed Patents" means the Patents referred to in Schedule 1, together
with such of the Patent Applications referred to in Schedule 1 which proceed to
grant;
1.4 "Process Chamber" means a vacuum vessel in which the Process is used;
1.5 "Process" means the process invented by the Licensor short details of which
are set out in Schedule 2 and which forms the subject matter of the claim of the
Patents and Patent Applications.
2. LICENSE GRANT
2.1 Licensor hereby grants to Licensee the non-exclusive right to manufacture
and sell by the use of technical data, experiences and findings of Licensor as
well as Licensed Patents together with the r right to sub-license to customers
of the Equipment the right to use the Equipment for the purpose of carrying out
the Process and selling products manufactured using the Equipment.
3. PROCESS DATA
After the entrance fee has been received by Licensor which is payable
pursuant to Article 5.1. hereof Licensor shall transmit to Licensee, at the
request of Licensee, free of charge and in a reproducible form, one copy each of
the written data and drawings required for the use of the Process available to
Licensor's Division FV/FLD.
-3-
<PAGE> 3
4. TECHNICAL ASSISTANCE
4.1 Licensor shall - as far as possible without thereby jeopardizing its own
operations - assist Licensee, if requested, in the starting up of the Licensed
Manufacture up to a total maximum of 10 man-days of Licensor's employees. The
date and the duration of such delgation shall be mutually agreed between the
parties hereto.
4.2 Licensor shall supply on request of Licensee up to 50 wafers with patterns
for the process implementation to Licensee.
5. WARRANTY
5.1 The parties hereto agree that no stipulation of this Agreement obligates
Licensor to grant rights or pass on information the granting or passing on of
which Licensor is not authorized because of other undertakings or government
directives.
5.2 Licensor does not assume any warranty for the technical or economic success
of the Process for the freedom from proprietary rights of third parties, for the
quality of products manufactured using the Process or for their compliance with
government regulations.
5.3 Licensee shall indemnify and hold Licensor harmless from and against any
liability, claims, demands and expenses (including attorney fees) for damages or
injuries (including death) resulting from any actual or alleged defect in any
Equipment manufactured and/or distributed by Licensee or from any failure to
give appropriate instructions or warnings or to make any recall if required.
-4-
<PAGE> 4
5.4 Licensor undertakes to apply the same care in preparing and making available
the process data, which it normally applies to similar matters in its own
organization. In case data to be furnished under the term of this Agreement, are
determined to be faulty or incomplete,
Licensor shall immediately remedy such faults or furnish missing data.
Any further liability of Licensor for direct or indirect damages is excluded.
6. COMPENSATION
Licensee shall pay to Licensor the following compensation for the
rights granted to it:
6.1 A lumpsum payment ("entrance fee") amounting to DM 450.000,-- (Deutsche Mark
four hundred fifty thousand). This amount shall not be credited against
royalties payable according to Article 6.2. The lumpsum payment is payable as
follows:
- DM 112.500,-- after this Agreement is signed, - DM 337.500,-- no
later than September 1, 1996.
6.2 A royalty amounting to DM 35.000,-- of each Process
Chamber manufactured by Licensee under this Agreement
during the first five years after the signature of this
Agreement or the manufacture of the first 50 (fifty)
Process Chambers whichever comes first. Thereafter the
royalty will be reduced to DM 25.000,-- of each Process
Chamber manufactured by Licensee under this Agreement.
6.3 Should Licensor grant a third party after the signature
of this Agreement essentially the same rights as granted
to Licensee hereunder at terms more favourable than
those provided in Articles 6.1 and 6.2 then such more
favourable terms shall automatically replace the
respective terms of this Agreement and Licensor shall
inform Licensee thereof.
-5-
<PAGE> 5
7. ACCOUNTING
7.1 Licensee undertakes to account for royalties payable under Article 5.1
quarterly within six weeks after March 31, June 30, September 30 and December 31
of each calendar year, using as the case may be the royalty accounting forms
furnished by Licensor, and to transfer by cable within the same period the
resultant royalties in Deutsche Mark for all Equipment distributed during the
period reported for into an account specified by Licensor stating in the
remittance the number of the Agreement together with the word "Royalties"; for
periods where no royalties have become payable "nil royalty statements" shall be
made. Costs and charges incurred by payments or their remittance to the Federal
Republic of Germany shall be borne by Licensee.
7.2 Licensee shall do everything that is necessary to ensure that royalties are
transferred when due.
7.3.1 Licensee shall keep separate records on Equipment showing all details
required for the calculation of royalties.
7.3.2 Licensor shall be entitled until 2 years after the due date of the last
royalty statement under this Agreement to audit, or have audited, at its own
expenses subject to the conditions hereunder, the records and all papers of
Licensee that may be expedient for their examination in Licensee's office or
works at all times during normal office hours. In case such audit results in any
understatements by Licensee with the consequence of additional payments to
Licensor, Licensee shall pay such additional moneys to Licensor within four
weeks after the result of such audit has been submitted to Licensee
-6-
<PAGE> 6
plus interest according to Article 7.4. In addition thereto Licensee
shall bear the costs of such audit provided the additional amount to be paid by
Licensee to Licensor exceeds 3 % of the royalties paid by Licensee to Licensor
for the period audited.
7.4 Licensee undertakes to meet its financial obligations when due. Should
payments to be made under this Agreement arrive at a later date than stipulated
Licensee shall pay for the amount due interest at the rate of 3 % p. a. above
the rate of discount of the Deutsche Bundesbank, valid from time to time, or -
in the option of Licensor - 3 % p. a. above the rate of discount, valid from
time to time in the country of Licensee, however, in any case not less than at a
rate of 1 % per month; such interest shall be calculated from the date due to
the date of remittance.
8. TAXES
All payments to be made hereunder by Licensee to Licensor shall be free
from taxes and other dues payable. Insofar as Licensor is the formal debtor of
such taxes and/or other dues Licensee shall present evidence to Licensor in the
form of official receipts showing the amounts of such taxes and/or other dues
paid.
9. SECRECY / COPYRIGHT
9.1 Licensee shall keep secret towards third parties - also after termination of
this Agreement - all data, experiences, findings etc. entrusted to it under this
Agreement as long and insofar as Licensee cannot prove that such data,
experiences, findings etc. have been in the public domain without the fault of
Licensee or until Licensor has waived the secrecy obligations in writing.
-7-
<PAGE> 7
9.2 Nothing in this Article 9 shall prevent Licensee disclosing the Know-How to
its customers providing Licensee takes all reasonable steps to ensure that those
customers are bound to the same obligations of confidentiality to which Licensee
is bound.
9.3 Licensee shall not divulge to third parties without the prior written
consent of Licensor any of the conditions of this Agreement unless this is
required by law or by orders of courts or governments.
9.4 Copyright on and title to the data furnished to Licensee as well as the
copyright on all copies made by Licensee shall remain with Licensor.
9.5 Licensor is obligated to keep confidential all information received from
Licensee regarding improvements of the Process.
10. TERMINATION OF LICENSE FOR INDIVIDUAL LICENSED PATENTS
Should Licensee contest or assist the contesting by third parties of
Licensed Patents or corresponding patents, then Licensor shall be
entitled to terminate without notice period all rights granted under
this Agreement.
11. BEGINNING AND END OF THE AGREEMENT
11.1 This Agreement shall become effective upon signing by the parties hereto.
10.2 Unless terminated earlier in accordance with the following provisions of
this Article 11 this Agreement shall continue in force until the expiration of
the last to expire Licensed Patent.
-8-
<PAGE> 8
11.3 Should any of the parties hereto fail to meet its contractual obligations
hereunder and should a corresponding request or reminder (to be made by
registered letter, receipt requested) of the other party remain fruitless for a
period of 60 days then the requesting party shall, without thereby prejudicing
any other rights, be entitled to terminate this Agreement by registered letter,
receipt requested, without notice period at any time.
11.4 Licensor is furthermore entitled to terminate this Agreement by registered
letter, receipt requested at any time subject to three months notice period if
and when:
11.4.1 essential changes have taken place in the control of the capital of
Licensee or part thereof;
11.4.2 Licensee is prevented permanently for more than one year to a
considerable extent from complying with its obligations under the Agreement due
to Force Majeure (e. g. war, civil commotions, strikes, lock-out, Acts of God,
transport catastrophes, embargoes, government orders) or due to other events
beyond the control of Licensee.
11.5 Licensee shall inform Licensor forthwith in writing if one or several of
the events listed in 11.4.1 and 11.4.2 occur. Licensor shall be entitled to
exercise its right of termination according to Article 11.4.1 and 11.4.2 within
one year after Licensor has received such written information.
11.6 Should this Agreement expire prior to the date of expiration of the last to
expire Licensed Patent then all rights grandet by Licensor to Licensee hereunder
shall terminate at the same time. Any products
-9-
<PAGE> 9
manufactured according to this Agreement and unsold at the date of
termination hereof may be sold by Licensee during the ensuing year in the
Licensed Territory. For such products Licensee shall pay royalties to Licensor
according to Articles 5 to 7 of this Agreement.
12. MISCELLANEOUS
12.1 This Agreement replaces all oral or written agreements entered into between
the parties hereto prior to its signing regarding the manufacture of Licensed
Products or the sale thereof. Modifications or supplements to this Agreement -
including this Article 12.1 - require the written form and signature by both
parties to become legally binding.
12.2 Should any provision of this Agreement be invalid this shall not invalidate
the whole of this Agreement. Any invalid condition shall much rather be replaced
by a reasonable provision which is permissible under the law and which comes
closest to the economical intent of the original provision.
12.3 This Agreement shall be subject to the substantive laws of the Federal
Republic of Germany excluding the conflict of law regulations. The stipulations
of international conventions regarding the international sale of goods shall not
be applicable.
12.4 All disputes arising under this Agreement, including those that may evolve
from the question of its coming into effect as well as those that originate from
the Agreement after its termination, shall be settled in a final manner by a
Court of Arbitration to be convened at Zurich/Switzerland.
- 10 -
<PAGE> 10
12.5 The Court of Arbitration shall consist of three arbitrators. Each party
shall appoint its arbitrator, and the third, who is to act as chairman, is to be
appointed jointly by the two first-mentioned arbitrators. If one party fails to
appoint its arbitrator within four weeks after receipt of the respective written
request of the other party, or if the two first-mentioned arbitrators cannot
come to an agreement on the third arbitrator within four weeks, the respective
arbitrator is to be appointed by the President of the International Chamber of
Commerce at Paris. The chairman of the Court of Arbitration shall be a fully
qualified jurist of Swiss nationality who is experienced in arbitration.
12.6 The Court of Arbitration shall act on the basis of the Rules of Arbitration
and Conciliation (Edition 1988) of the International Chamber of Commerce. The
Code of Civil Procedure of the Canton Bern shall supplement said Rules.
12.7 Claims for payments may be filed in any ordinary court in the option of
Licensor.
Stuttgart, 14/6/1996 St. Petersburg, 6/19/96
ROBERT BOSCH GMBH PLASMA
THERM, INC.
/s/Dr. K. Borchers /S/Ronald S. Deferrari
/s/Dr. G. Holfelder
<PAGE> 11
SCHEDULE 1
Patents
<TABLE>
<CAPTION>
Country Number Date of Application Date of Grant
<S> <C> <C> <C>
Germany DE 4241045 05 .12 . 1992 26 . 05 . 1994
USA US 5501893 27.11.1993 23.03.1996
</TABLE>
Patent Application
<TABLE>
<CAPTION>
Country Number Date of Application Priority Date
<S> <C> <C> <C>
France EP 625285 27.11.1993 05.12.1992
UK EP 625285 27.11.1993 05.12.1992
Japan 513639/93 27.11.1993 05.12.1992
</TABLE>
<PAGE> 12
SCHEDULE 2
The Process
A method of anisotropic etching of structures preferably defined with an etching
mask, particularly laterally exactly defined recesses in silicon, by means of a
plasma, characterised in that the anisotropic etching process is performed
separately in separate respectively alternating sequential etching and
polymersation steps which are controlled independently of one another and that a
polymer applied during the polymerisation step to the lateral definition of the
structures defined by the etching mask is partially re-stripped during the
subsequent etching step.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM CONSOLIDATED
BALANCE SHEETS AS OF MAY 31, 1996 AND CONSOLIDATED STATEMENT OF INCOME FOR THE
SIX MONTHS ENDED MAY 31, 1996 AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO
SUCH FINANCIAL STATEMENTS.
</LEGEND>
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> NOV-30-1996
<PERIOD-START> DEC-01-1995
<PERIOD-END> MAY-31-1996
<CASH> 5,041,812
<SECURITIES> 0
<RECEIVABLES> 7,131,163
<ALLOWANCES> 0
<INVENTORY> 11,499,803
<CURRENT-ASSETS> 24,842,060
<PP&E> 7,046,354
<DEPRECIATION> 1,588,700
<TOTAL-ASSETS> 30,454,227
<CURRENT-LIABILITIES> 6,243,249
<BONDS> 0
0
0
<COMMON> 103,012
<OTHER-SE> 20,468,336
<TOTAL-LIABILITY-AND-EQUITY> 30,454,227
<SALES> 17,781,800
<TOTAL-REVENUES> 17,781,800
<CGS> 11,125,035
<TOTAL-COSTS> 15,250,264
<OTHER-EXPENSES> (110,845)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 108,150
<INCOME-PRETAX> 2,534,231
<INCOME-TAX> 995,806
<INCOME-CONTINUING> 1,538,425
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 1,538,425
<EPS-PRIMARY> .14
<EPS-DILUTED> .14
</TABLE>
