EXHIBIT 10.6
NANOMETRICS INCORPORATED
CONSULTING AGREEMENT
This Consulting Agreement (the "Agreement") is made and entered into as of
the 24th day of August, 1995 by and between Nanometrics Incorporated, a
California corporation ("Nanometrics"), and Kanegi Nagai ("Consultant").
Nanometrics desires to retain Consultant as an independent contractor to perform
consulting services for Nanometrics and Consultant is willing to perform such
services, on terms set forth more fully below. In consideration of the mutual
promises contained herein, the parties agree as follows:
1. SERVICES AND COMPENSATION
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(a) Consultant agrees to perform for Nanometrics the services
described in Exhibit A ("Services").
(b) Nanometrics agrees to pay Consultant the compensation set forth in
Exhibit A for the performance of the Services.
2. CONFIDENTIALITY
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(a) "Confidential Information" means any Nanometrics proprietary
information, technical data, trade secrets or know-how, including, but not
limited to, research, product plans, products, services, customers, customer
lists, markets, software, developments, inventions, processes, formulas,
technology, designs, drawings, engineering, hardware configuration information,
marketing, finances or other business information disclosed by Nanometrics
either directly or indirectly in writing, orally or by drawings or inspection of
parts or equipment.
(b) Consultant will not, during or subsequent to the term of this
Agreement, use Nanometrics' Confidential Information for any purpose whatsoever
other than the performance of the Services on behalf of Nanometrics or disclose
Nanometrics' Confidential Information to any third party, and it is understood
that said Confidential Information shall remain the sole property of
Nanometrics. Consultant further agrees to take all reasonable precautions to
prevent any unauthorized disclosure of such Confidential Information including,
but not limited to, having each employee of Consultant, if any, with access to
any Confidential Information, execute a nondisclosure agreement containing
provisions in Nanometrics' favor substantially similar to Sections 2, 3 and 5 of
this Agreement. Confidential Information does not include information which (1)
is known to Consultant at the time of disclosure to Consultant by Nanometrics as
evidenced by written records of Consultant, (2) has become publicly known and
made generally available through no wrongful act of Consultant, or (3) has been
rightfully received by Consultant from a third party who is authorized to make
such disclosure. Without Nanometrics' prior written approval, Consultant will
not directly or indirectly disclose to anyone the existence of this Agreement or
the fact that Consultant has this arrangement with Nanometrics.
(c) Consultant agrees that Consultant will not, during the term of
this Agreement, improperly use or disclose any proprietary information or trade
secrets of any former or current
employer or other person or entity with which Consultant has an agreement or
duty to keep in confidence information acquired by Consultant in confidence, if
any, and that Consultant will not bring onto the premises of Nanometrics any
unpublished document or proprietary information belonging to such employer,
person or entity unless consented to in writing by such employer, person or
entity. Consultant will indemnify Nanometrics and hold it harmless from and
against all claims, liabilities, damages and expenses, including reasonable
attorneys' fees and costs of suit, arising out of or in connection with any
violation or claimed violation of a third party's rights resulting in whole or
in part from Nanometrics' use of the work product of Consultant under this
Agreement.
(d) Consultant recognizes that Nanometrics has received and in the
future will receive from third parties their confidential or proprietary
information subject to a duty on Nanometrics' part to maintain the
confidentiality of such information and to use it only for certain limited
purposes. Consultant agrees that Consultant owes Nanometrics and such third
parties, during the term of this Agreement and thereafter, a duty to hold all
such confidential or proprietary information in the strictest confidence and not
to disclose it to any person, firm or corporation or to use it except as
necessary in carrying out the Services for Nanometrics consistent with the
Nanometrics' agreement with such third party.
(e) Upon the termination of this Agreement, or upon Nanometrics'
earlier request, Consultant will deliver to Nanometrics all of Nanometrics'
property and Confidential Information in tangible form that Consultant may have
in Consultant's possession or control.
3. OWNERSHIP
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(a) Consultant agrees that all copyrightable material, notes, records,
drawings, designs, inventions, improvements, developments, discoveries and trade
secrets (collectively, "Inventions") conceived, made or discovered by
Consultant, solely or in collaboration with others, during the period of this
Agreement which relate in any manner to the business of Nanometrics that
Consultant may be directed to undertake, investigate or experiment with, or
which Consultant may become associated with in work, investigation or
experimentation in the line of business of Nanometrics in performing the
Services hereunder, are the sole property of Nanometrics. In addition, any
inventions which constitute copyrightable subject matter shall be considered
"works made for hire" as that term is defined in the United States Copyright
Act. Consultant further agrees to assign (or cause to be assigned) and does
hereby assign fully to Nanometrics all such Inventions and any copyrights,
patents, mask work rights or other intellectual property rights relating
thereto.
(b) Consultant agrees to assist Nanometrics, or its designee, at
Nanometrics' expense, in every proper way to secure Nanometrics' rights in the
Inventions and any copyrights, patents, mask work rights or other intellectual
property rights relating thereto in any and all countries, including the
disclosure to Nanometrics of all pertinent information and data with respect
thereto, the execution of all applications, specifications, oaths, assignments
and all other instruments which Nanometrics shall deem necessary in order to
apply for and obtain such rights and in order to assign and convey to
Nanometrics, its successors, assigns and nominees the sole and exclusive rights,
title and interest in and to such Inventions, and any copyrights, patents, mask
work rights or other intellectual property rights relating thereto. Consultant
further agrees that Consultant's
obligation to execute or cause to be executed, when it is in Consultant's power
to do so, any such instrument or papers shall continue after the termination of
this Agreement.
(c) Consultant agrees that if in the course of performing the
Services, Consultant incorporates into any Invention developed hereunder any
invention, improvement, development, concept, discovery or other proprietary
information owned by Consultant or in which Consultant has an interest,
Nanometrics is hereby granted and shall have a nonexclusive, royalty-free,
perpetual, irrevocable, worldwide license to make, have made, modify, use and
sell such item as part of or in connection with such Invention.
(d) Consultant agrees that if Nanometrics is unable because of
Consultant's unavailability, dissolution, mental or physical incapacity, or for
any other reason, to secure Consultant's signature to apply for or to pursue any
application for any United States or foreign patents or mask work or copyright
registrations covering the Inventions assigned to Nanometrics above, then
Consultant hereby irrevocably designates and appoints Nanometrics and its duly
authorized officers and agents as Consultant's agent and attorney in fact, to
act for and in Consultant's behalf and stead to execute and file any such
applications and to do all other lawfully permitted acts to further the
prosecution and issuance of patents, copyright and mask work registrations
thereon with the same legal force and effect as if executed by Consultant.
4. REPORTS
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Consultant agrees that it will from time to time during the term of this
Agreement or any extension thereof keep Nanometrics advised as to Consultant's
progress in performing the Services hereunder and that Consultant will, as
requested by Nanometrics, prepare written reports with respect thereto. It is
understood that the time required in the preparation of such written reports
shall be considered time devoted to the performance of Consultant's Services.
5. CONFLICTING OBLIGATIONS
-----------------------
(a) Consultant certifies that Consultant has no outstanding agreement
or obligation that is in conflict with any of the provisions of this Agreement,
or that would preclude Consultant from complying with the provisions hereof, and
further certifies that Consultant will not enter into any such conflicting
Agreement during the term of this Agreement.
(b) In view of Consultant's access to Nanometrics' trade secrets and
proprietary know-how, Consultant further agrees that Consultant will not,
without Nanometrics' prior written consent, design identical or substantially
similar designs as those developed under this Agreement for any third party
during the term of this Agreement and for a period of twelve (12) months after
the termination of this Agreement.
(c) Consultant agrees not to recruit any Nanometrics employee(s) for
Consultant or for any other employer(s) and not to provide information
concerning any Nanometrics employee(s) to any other employer or recruiter. This
provision shall remain in full force and effect during the term of this
Agreement and for a period of twenty-four (24) months after the term of this
Agreement.
6. TERM AND TERMINATION
--------------------
(a) This Agreement will commence on the date first written above and
will continue until final completion of the Services or termination as provided
below.
(b) Nanometrics may terminate this Agreement upon giving two (2) weeks
prior written notice thereof to Consultant. Any such notice shall be addressed
to Consultant at the address shown below or such other address as either party
may notify the other of and shall be deemed given upon delivery if personally
delivered, or forty-eight (48) hours after deposited in the United States mail,
postage prepaid, registered or certified mail, return receipt requested.
Nanometrics may terminate this Agreement immediately and without prior notice if
Consultant refuses to or is unable to perform the Services or is in breach of
any material provision of this Agreement.
(c) Upon such termination all rights and duties of the parties toward
each other shall cease except:
(i) that Nanometrics shall be obliged to pay, within thirty (30)
days of the effective date of termination, all amounts owing to Consultant for
unpaid Services and related expenses, if any, in accordance with the provisions
of Section 1 (Services and Compensation) hereof; and
(ii) Sections 2 (Confidentiality), 3 (Ownership), 5 (Conflicting
Obligations), and 8 (Independent Contractors) shall survive termination of this
Agreement.
7. ASSIGNMENT
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Neither this Agreement nor any right hereunder or interest herein may be
assigned or transferred by Consultant without the express written consent of
Nanometrics.
8. INDEPENDENT CONTRACTOR
----------------------
Nothing in this Agreement shall in any way be construed to constitute
Consultant as an agent, employee or representative of Nanometrics, but
Consultant shall perform the Services hereunder as an independent contractor.
Consultant agrees to furnish (or reimburse Nanometrics for: all tools and
materials necessary to accomplish this contract, and shall incur all expenses
associated with performance, except as expressly provided on Exhibit A of this
Agreement. Consultant acknowledges and agrees that Consultant is obligated to
report as income all compensation received by Consultant pursuant to this
Agreement, and Consultant agrees to and acknowledges the obligation to pay all
self-employment and other taxes thereon. Consultant further agrees to indemnify
Nanometrics and hold it harmless to the extent of any obligation imposed on
Nanometrics (i) to pay in withholding taxes or similar items or (ii) resulting
from Consultant's being determined not to be an independent contractor.
9. INDEMNITY.
---------
Consultant hereby waives all claims against Nanometrics for damages to
goods, equipment, and all other personal property occurring in the course of
performance of consulting activities and for injury to persons in connection
with performing consulting activities, from any cause arising at any time, and
Consultant will hold Nanometrics exempt and harmless from any damage or injury
to any person, or to the goods, equipment, and all other personal property of
any person, arising from the performance of consulting activities.
10. ARBITRATION AND EQUITABLE RELIEF
--------------------------------
(a) Except as provided in Section 10(b) below, Nanometrics and
Consultant agree that any dispute or controversy arising out of or relating to
any interpretation, construction, performance or breach of this Agreement, shall
be settled by arbitration to be held in Santa Xxxxx County, California, in
accordance with the rules then in effect of the American Arbitration
Association.
The arbitrator may grant injunctions or other relief in such dispute or
controversy. The decision of the arbitrator shall be final, conclusive and
binding on the parties to the arbitration. Judgment may be entered on the
arbitrator's decision in any court of competent jurisdiction. Nanometrics and
Consultant shall each pay one-half of the costs and expenses of such
arbitration, and each shall separately pay its respective counsel fees and
expenses.
(b) Consultant agrees that it would be impossible or inadequate to
measure and calculate Nanometrics' damages from any breach of the covenants set
forth in Sections 2 or 3 herein. Accordingly, Consultant agrees that if
Consultant breaches Sections 2 or 3, Nanometrics will have available, in
addition to any other right or remedy available, the right to obtain from any
court of competent jurisdiction an injunction restraining such breach or
threatened breach and specific performance of any such provision. Consultant
further agrees that no bond or other security shall be required in obtaining
such equitable relief and Consultant hereby consents to the issuances of such
injunction and to the ordering of such specific performance.
11. GOVERNING LAW
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This Agreement shall be governed by the laws of the State of
California.
12. ENTIRE AGREEMENT
----------------
This Agreement is the entire agreement of the parties and supercedes any prior
agreements between them with respect to the subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
CONSULTANT NANOMETRICS INCORPORATED
/s/ X. Xxxxx /s/ Xxxxxxx X. Xxxxxx
By: ________________________ By: _________________________
(Signature) (Signature)
Kanegi Nagai Chairman & CEO
Title:_____________________ Title: ______________________
Address: 000 Xxx Xxxxx Xxx. Address: 000 Xxxxxxxx Xxxxx
Xxx Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
Date: 8/24/95 Date: 8/24/95
EXHIBIT A
SERVICES AND COMPENSATION
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1. Contact. Consultant's principal Nanometrics contact:
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Name: Xxxxxxx X. Xxxxxx
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Title: Chairman and CEO
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2. Services. Consultant will render to Nanometrics the following
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services:
See attached job description.
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This Agreement shall commence on August 24, 1995 and shall remain in force
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through December 15, 1995 unless terminated earlier in accordance with the
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provisions of Paragraph 6 of this Agreement.
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3. Compensation.
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(a) Nanometrics shall pay Consultant on the following basis:
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Four Hundred Dollars ($400.00) per day or portion thereof, plus reasonable
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expenses.
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Consultant's schedule shall be established by Nanometrics' Chairman & CEO
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and generally is expected to average two (2) days per week.
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(b) Consultant shall submit invoices in a form prescribed by Nanometrics
and such statement shall be approved by the contact person listed above or
by his or her supervisor.
1 Attachment: Job Description.
JOB DESCRIPTIONS (PROPOSAL)
---------------------------
1. Job Title
Executive Adviser to Chairman and Chief Executive Officer (CEO).
2. Reporting line
Report directly to Chairman and CEO, Xx. Xxxxxxx X. Xxxxxx.
3. Job descriptions
(1) Identify problems currently facing NanoJapan, propose appropriate
action plans and implement the plans in accordance with CEO's decision.
(2) Based on the above decision, search for a qualified Resident Managing
Director (RMD). Make interviews with candidates and recommend CEO the
most qualified person(s).
(3) Assist CEO in supervising RMD to ensure that RMD can run NanoJapan
successfully in line with the policies set by CEO.
(4) Review the business and budget plans that NanoJapan submits to CEO and
give comments and advices to him. Also, follow closely actual
performance in comparison to the approved budget and give
recommendation on what kind of actions, if any, should be taken to stay
on the budget.
(5) Negotiate and conclude with Japanese semiconductor equipment
manufacturer(s), including Holon Co. Ltd. exclusive distribution and
technical service agreements in USA under the terms and conditions most
favorable to Nanometrics.
(6) Give advices and assistances to CEO and other executive officers of the
Company with regard to its business operations in South Korea, Taiwan
and ASEAN countries.
(7) Under the direction of CEO, participate in and give advices on
important business decision that Nanometrics makes in such areas as
marketing, sales, finance, accounting and human resources.
(8) Take on any other responsibilities according to CEO's instructions to
make Nanometrics a better and more profitable company.
(9) In course of fulfilling the above responsibilities make business trips
from time to time to Asia, particularly to Japan to meet key employees
of NanoJapan, candidates of its RMD and its customers, suppliers,
bankers, CPA and other business partners.
X. Xxxxx
[LETTERHEAD OF NANOMETRICS]
AMENDMENT NUMBER 1
TO
CONSULTING AGREEMENT
BETWEEN
NANOMETRICS INCORPORATED
AND
MR. KANEGI NAGAI
NANOMETRICS INCORPORATED ("NANOMETRICS") and Mr. Kanegi Nagai ("Consultant")
hereby agree to extend the term of the Consulting Agreement (the "Agreement")
between the parties entered into as of August 24, 1995 such that the Agreement
shall remain in full force and effect throughout April 15, 1996 by amending
Exhibit A to the Agreement as follows:
In Exhibit A of the Agreement, Section 2, replace "December 15, 1995" with
"April 15, 1996."
This Amendment Number 1 is effective December 15, 1995.
IN WITNESS WHEREOF, the parties hereunto have affixed their signatures below.
CONSULTANT NANOMETRICS INCORPORATED
KANEGI NAGAI
By: /s/ X. Xxxxx By: /s/ Xxxxxxx X. Xxxxxx
--------------------------- --------------------------
(Signature) (Signature)
Address: 000 Xxx Xxxxx Xxxxxx Address: 000 Xx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
Date: Dec 15, 1995 Date: Dec 15, 1995
------------------------- -------------------------
[LETTERHEAD OF NANOMETRICS]
AMENDMENT NUMBER 2
TO
CONSULTING AGREEMENT
BETWEEN
NANOMETRICS INCORPORATED
AND
MR. KANEGI NAGAI
NANOMETRICS INCORPORATED ("NANOMETRICS") and Mr. Kanegi Nagai ("Consultant")
hereby agree to extend the term of the Consulting Agreement (the "Agreement")
between the parties entered into as of August 24, 1995 such that the Agreement
shall remain in full force and effect throughout August 23, 1996 by amending
Exhibit A to the Agreement as follows:
In Exhibit A of the Agreement, Section 2, replace "December
15, 1995" with "August 23, 1996."
This Amendment Number 2 is effective April 16, 1996.
IN WITNESS WHEREOF, the parties hereunto have affixed their signatures below.
CONSULTANT NANOMETRICS INCORPORATED
KANEGI NAGAI
By: /s/ Kanegi Nagai By: /s/ Xxxxxxx X. Xxxxxx
------------------- ----------------------
(Signature) (Signature)
Xxxxxxx X. Xxxxxx
Chairman and CEO
Address: 000 Xxx Xxxxx Xxxxxx Address: 000 Xx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
Date: April 11, 1996 Date: April 9, 1996
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[LETTERHEAD OF NANOMETRICS]
AMENDMENT NUMBER 3
TO
CONSULTING AGREEMENT
BETWEEN
NANOMETRICS INCORPORATED
AND
MR. KANEGI NAGAI
NANOMETRICS INCORPORATED ("NANOMETRICS") and Mr. Kanegi Nagai ("Consultant")
hereby agree to extend the term of the Consulting Agreement (the "Agreement")
between the parties entered into as of August 24, 1995 such that the agreement
shall remain in full force and effect through November 23, 1996 by amending
Exhibit A to the Agreement as follows:
In Exhibit A of the Agreement, Section 2, replace "December
15, 1995" with "November 31, 1996".
This Amendment Number 3 is effective August 24, 1996.
IN WITNESS WHEREOF, the parties hereunto have affixed their signatures below.
CONSULTANT NANOMETRICS INCORPORATED
KANEGI NAGAI
By: /s/ Kanegi Nagai By: /s/ Xxxxxxx X. Xxxxxx
------------------- ----------------------
(Signature) (Signature)
Xxxxxxx X. Xxxxxx
Chairman and CEO
Address: 000 Xxx Xxxxx Xxxxxx Address: 000 Xx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
Date: August 26, 1996 Date: August 26, 1996
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[LETTERHEAD OF NANOMETRICS]
AMENDMENT NUMBER 4
TO
CONSULTING AGREEMENT
BETWEEN
NANOMETRICS INCORPORATED
AND
MR. KANEGI NAGAI
NANOMETRICS INCORPORATED ("NANOMETRICS") and Mr. Kanegi Nagai ("Consultant")
hereby agree to extend the term of the Consulting Agreement (the "Agreement")
between the parties entered into as of August 24, 1995 such that the agreement
shall remain in full force and effect through March 31, 1997 by amending Exhibit
A to the Agreement as follows:
In Exhibit A of the Agreement, Section 2, replace "December
15, 1995" with "March 31, 1997."
This Amendment Number 4 is effective November 24, 1996.
IN WITNESS WHEREOF, the parties hereunto have affixed their signatures below.
CONSULTANT NANOMETRICS INCORPORATED
KANEGI NAGAI
By: /s/ Kanegi Nagai By: /s/ Xxxxxxx X. Xxxxxx
------------------- ----------------------
(Signature) (Signature)
Xxxxxxx X. Xxxxxx
Chairman and CEO
Address: 000 Xxx Xxxxx Xxxxxx Address: 000 Xx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
Date: Nov. 25, 1996 Date: Nov. 15, 1996
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[LETTERHEAD OF NANOMETRICS]
AMENDMENT NUMBER 5
TO
CONSULTING AGREEMENT
BETWEEN
NANOMETRICS INCORPORATED
AND
MR. KANEGI NAGAI
NANOMETRICS INCORPORATED ("NANOMETRICS") and Mr. Kanegi Nagai ("Consultant")
hereby agree to reduce the Consultant's regular weekly schedule and to extend
the term of the Consulting Agreement (the "Agreement") between the parties
entered into as of August 24, 1995 such that the Agreement shall remain in full
force and effect through August 24, 1997 by amending Exhibit A to the Agreement
as follows:
Section 2: Replace "December 15, 1995" with "August 24, 1997."
Section 3: Replace "two (2) days" with "one (1) day."
Section 3: Add the following sentence;
However, Nanometrics' Chairman and CEO, may increase the number of consulting
days in the event of such occurrences as special projects and travel to Japan.
This Amendment Number 5 is effective April 1, 1997.
IN WITNESS WHEREOF, the parties hereunto have affixed their signatures below.
CONSULTANT NANOMETRICS INCORPORATED
KANEGI NAGAI
By: /s/ Kanegi Nagai By: /s/ Xxxxxxx X. Xxxxxx
------------------- ----------------------
(Signature) (Signature)
Xxxxxxx X. Xxxxxx
Chairman and CEO
Address: 000 Xxx Xxxxx Xxxxxx Address: 000 Xx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
Date: April 7, 1997 Date: April 7, 1997
----------------------- -----------------------
AMENDMENT NUMBER 6
TO
CONSULTING AGREEMENT
BETWEEN
NANOMETRICS INCORPORATED
AND
MR. KANEGI NAGAI
NANOMETRICS INCORPORATED ("NANOMETRICS") and Mr. Kanegi Nagai ("Consultant")
hereby agree to extend the term of the Consulting Agreement (the "Agreement")
between the parties entered into as of August 24, 1995 such that the Amendment
shall remain in full force and effect through December 31, 1997 by amending
Exhibit A to the Agreement as follows:
Section 2: Replace "December 15, 1995) with "December 31, 1997."
Section 3: The modification to Section 3 contained in Amendment Number 5 shall
remain in full force and effect.
This Amendment Number 6 is effective August 25, 1997.
IN WITNESS WHEREOF, the parties hereunto have affixed their signatures below
CONSULTANT NANOMETRICS INCORPORATED
KANEGI NAGAI
/s/ Kanegi Nagai /s/ Xxxxxxx X. Xxxxxx
By:_______________________ By: ________________________
Signature Signature
Xxxxxxx X. Xxxxxx
Chairman and CEO
Address: 000 Xxx Xxxxx Xxxxxx Address: 000 Xx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000 Xxxxxxxxx, XX 00000
Date: September 15, 1997 Date: September 15, 1997
