Exhibit 10.3


 


FINANCING AGREEMENT


 


THIS FINANCING
AGREEMENT (the “Financing Agreement”) is effective as
of May 6, 2002, by and between EXCELERATE TECHNOLOGIES, LLC, a
Massachusetts limited liability company with a principal place of business at
70 Walnut Street, Wellesley, Massachusetts (“Excelerate”), and AUGUST
TECHNOLOGY CORPORATION, a Minnesota corporation with a principal
place of business at 4900 West 78th Street, Bloomington, Minnesota
55435 (“August Technology”).


 


RECITALS


 


A.           August
Technology loaned to Excelerate Five Hundred Thousand U.S. Dollars ($500,000
and hereafter the “Amount”) on or around May 6, 2002 per the terms of the
Convertible Promissory Note of May 6, 2002 (the “Note”).


 


B.             In
conjunction with the Note, Excelerate has agreed to provide collateral for the
loan using certain software defined herein (the “Collateral”) for the benefit
of August Technology should Excelerate default.


 


NOW THEREFORE, based
upon the foregoing premises, and in consideration of the covenants and
agreements herein contained, Excelerate and August Technology hereby agree as
follows:


 


1.                   Creation
and Perfection of License


(a.)       The
Collateral is defined as all of the software deposited in escrow per the Escrow
Agreement between the parties, including but not limited to: Metrology Data
Viewer (also known as MDV), SmartSampler and WaferBrowser.


 


(b.)      As
security for due performance and payment in full by Excelerate of the Note (the
“Obligations”), Excelerate hereby grants to August Technology an irrevocable,
worldwide, non-exclusive license and interest (the “License”) in the Collateral
if and only if Excelerate defaults as described below in Section 6.


 


(c)          Under
the License, August Technology will continue to pay to Excelerate all payments
required by the OEM Software Development Agreement and the Work Orders issued
pursuant thereto (collectively, the “OEM Agreement”), provided, however, that
from and after the date that Excelerate defaults or a Bankruptcy occurs (as
described in Section 6 below), all such payments by August Technology first
shall be set-off against amounts owed by Excelerate under the Note, and second,
after the Note has been paid in full, shall be payable in cash to Excelerate as
provided in the OEM Agreement.  However,
in the event of an Insolvency Event (as defined in Section 6), the License
shall thereupon convert into a royalty free, fully paid up License, and no
other payments will be required from August Technology for its continued use of
the Collateral pursuant to the License.


 


(d.)      The
License created herein shall attach to the Collateral immediately upon a
default.


 

















 


(e)          Although
the License created herein is non-exclusive, to the extent, and for so long as,
any separate agreement between August Technology and Excelerate grants August
Technology an exclusive license, August Technology’s license under such
separate agreement shall continue to be exclusive.  This Financing Agreement is not intended to modify the
exclusivity of any such other license agreement.


 


2.                   No
Transfer, Further Encumbering, Etc.


August Technology agrees that the rights granted to August Technology
hereunder are personal to August Technology, and until a Default occurs (as
defined in Section 6 below), August Technology may not directly or indirectly
sell, assign, transfer, convey or encumber the Collateral, or any part thereof
or interest therein, or any of its rights hereunder, or permit any such action
to be taken, by operation of law or otherwise without the prior written consent
of Excelerate except where at least fifty percent (50%) of August Technology’s
outstanding shares are acquired by a third party whereby Excelerate shall not
unreasonably withhold its written consent of an assignment.


 


3.                   Continuous
Interest


Excelerate agrees that until Excelerate has paid in full all
obligations of Excelerate under the Note, or until termination of this
Financing Agreement by August Technology, all rights, powers and remedies
granted to August Technology hereunder shall continue to exist, may not revoked
by Excelerate at any time, as long as the Financing Agreement is still in
effect.


 


4.                   Taxes,
Charges and Liens


Excelerate agrees to pay any and all taxes, charges, liens and
assessment, if any, against the Collateral, arising from and after the date
hereof and upon the failure of Excelerate to do so, August Technology in its
discretion may pay any of such taxes, charges, liens and assessments.  Amounts so paid, together with interest at
10% per annum, shall be a lien upon the Collateral, and shall be secured by a
security agreement until reimbursed.


 


5.                   Right
to Create License


Excelerate hereby represents and warrants to August Technology that on
and as of the effective date of this Financing Agreement, Excelerate has the
absolute right and authority to enter into this Financing Agreement and hereby
creates in favor of August Technology a valid and binding License in the
Collateral upon Default, subject to no prior liens, charges, encumbrances or
right of any other person or entity that would diminish or otherwise reduce
August Technology’s License.


 


6.                   Remedies
Upon Default


In the event Excelerate enters bankruptcy (either voluntarily or
involuntarily for the purpose of reorganization) (a “Bankruptcy”), or in the
event of any material default by Excelerate regarding Excelerate’s obligations
to August Technology under the Note, or in the event that Excelerate ceases to
conduct business without the occurrence of a Bankruptcy or is declared
insolvent by a court of law, arbitrator, or any governmental agency (other than
through a Bankruptcy for reorganization) (any such event, an “Insolvency
Event”), then the following shall occur.


 


2

















 


August Technology immediately and irrevocably receives the License and
then has the right to use, make, sell, import, offer to sell, improve, and make
derivative works from.  August
Technology may require Excelerate or the Escrow Agent under the Escrow
Agreement between the parties to assemble all or any part of the Collateral
including source and object code and make it available to August Technology at
a place to be designated by August Technology, which is reasonably convenient
to Excelerate and August Technology. 
August Technology and any assign thereof after a Default shall hold the
Collateral absolutely free from any claim or right of whatsoever kind,
including any equity or right of redemption of Excelerate, any infringement
claims by Excelerate, or any other claims by Excelerate.


 


7.                   Termination



This Financing Agreement shall terminate upon the cancellation of the
Note or the payment in full of all of Excelerate’s obligations under the Note,
at which time the Collateral shall be fully released such that any Default
thereafter does not result in the License created hereby under for a Default,
and any and all instruments delivered to August Technology hereunder shall
automatically expire and terminate.  In
such event, August Technology shall promptly execute and deliver to Excelerate
a written release and cancellation hereof, and take any and all additional
action reasonably requested by Excelerate to restore full rights of the
Collateral in Excelerate.


 


8.                   Successors
and Assigns


This Financing Agreement shall inure to the benefit of and be binding
upon the successors and assigns of Excelerate and August Technology.  Any License created hereunder is fully
assignable and/or transferable.


 


9.                   No
Waiver


Any forbearance or failure to exercise any right, power or remedy
hereunder shall not be deemed to be a waiver of such right, power or remedy,
and any single or partial exercise of any right, power or remedy shall not
preclude the further exercise thereof.


 


10.            Entire
Agreement; Termination of Security Agreement


This Financing Agreement constitutes the entire and final agreement of
the parties respecting the subject matter herein, and this Financing Agreement
shall not be modified except by a written instrument signed by the
parties.  This Financing Agreement
supersedes the Security Agreement between Excelerate and August Technology,
which Security Agreement is hereby terminated without further action by the
parties.


 


11.            Governing
Law


This Financing Agreement shall be construed in accordance with and
governed by the laws of the State of Minnesota.


 


3

















 


IN WITNESS WHEREOF, the
parties hereto have executed this Financing Agreement the date and year first
above written.


 


 


	
   

  	
  EXCELERATE
  TECHNOLOGIES, LLC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Baljit Singh

  	
   

  
	
   

  	
   

  	
  Baljit Singh

  
	
   

  	
   

  	
  Its:  President & CEO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AUGUST
  TECHNOLOGY CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John M. Vasuta

  	
   

  
	
   

  	
   

  	
  John M. Vasuta

  
	
   

  	
   

  	
  Its:  VP & General Counsel

  
					



 


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