exv10w3



 





Exhibit 10.3




ASSET PURCHASE AGREEMENT



THIS ASSET PURCHASE AGREEMENT (the “Agreement”) is made and entered into as of this 16th day of
March 2007 (the “Effective Date”), by and among JMAR Technologies, Inc., a company organized and
existing under the laws of the State of Delaware (the “Seller”), and Gatan, Inc., a company
organized and existing under the laws of the State of Pennsylvania (the “Buyer”) (Seller and Buyer
are together referred to herein as the “Parties”).




WITNESSETH:



WHEREAS, Seller owns or is in lawful possession of property, fixed assets, inventories,
work-in-progress, spare parts, records, goodwill, know-how, intellectual property, and other
interests used by Seller in, and associated with, the activities and operations of manufacturing,
sales and services of the x-ray microscopy business (collectively, “Assets”); and



WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, all such Assets
owned by Seller and identified herein in Exhibit A (“Purchased Assets”) and in Exhibit C
(“Patents”); and



WHEREAS, Seller desires to confer to Buyer, and Buyer desires to accept from Seller, all such
Assets loaned to Seller and identified in Exhibit B (“Loaned Assets”);



WHEREAS, Seller desires to sell to Buyer, and Buyer desires to buy from Seller, all patent material
related to the x-ray microscopy (“XRM”), including but not limited to issued patents, patent
applications, and provision applications, as further described in Exhibit C (“Patents”);



NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants, agreements
and other good and valuable consideration of the Parties hereinafter set forth, the Parties hereto,
intending to be legally bound, do hereby agree as follows:




Assets





	 	1.	 	Seller hereby grants to Buyer all of Seller’s right, title, and interest in the Assets.
	 
	 	2.	 	In the event that the consent or approval of a third party is required for such
transfer of Assets, or to complete patent applications for such Assets, Seller agrees to
use its best efforts to obtain the requisite consent or approval.
	 
	 	3.	 	All costs associated with applying for and maintaining patents shall hereinafter be at
Buyer’s expense.
	 
	 	4.	 	Buyer and Seller agree and acknowledge that the Loaned Assets are the property of the
federal government, and were lawfully loaned to Seller. If the Loaned Assets are
required to be returned to the federal government within three (3) years of the Effective
Date, Buyer may deduct the depreciated replacement value from monies owed to Seller. Such
depreciated replacement value shall be calculated by determining the fair market value of a
similar replacement product, and linearly depreciating the product beginning on the
Effective Date and ending five (5) years thereafter.
	 
	 	5.	 	Seller agrees to assist Buyer in obtaining inventor rights and signatures required for
transfer of intellectual property and completing patent applications. For work amounting
to less than four (4) hours per calendar quarter, no compensation will be due Seller.
Seller shall be entitled to reimbursement of reasonable wages and administrative fees for
work in excess of four (4) hours that is commissioned or requested by Buyer.




 









 











Payments





	 	1.	 	Within five (5) business days of execution of the Agreement, Buyer shall pay to Seller
$100,000.00.
	 
	 	2.	 	Buyer agrees to pay to ship the Assets, plus the reasonable cost of Seller’s employees
working on the Assets from the Effective Date until receipt and acceptance of the Assets by
Buyer. The following conditions shall apply:






	 	a.	 	Seller shall submit invoices to Buyer detailing the reasonable costs
associated with the packing and shipment of the Assets, employee wages, and employee
travel expenses. No overhead charges of Seller shall be reimbursed by Buyer. Buyer
will reimburse Seller up to two (2) weeks of employee wages for packing and shipment
work performed prior to the signing of the Agreement.
	 
	 	b.	 	Buyer shall reimburse Seller for such reasonable expenses within
twenty-one (21) days following receipt of invoices from Seller.
	 
	 	c.	 	In no such event shall Buyer be obligated to reimburse Seller or pay any
amount in excess of $50,000.00 for the costs and expenses described herein.
	 
	 	d.	 	Seller shall use its best efforts to deliver the Assets, including all
documentation, drawings, control software and related materials, to Buyer
immediately following the Effective Date.






	 	3.	 	Buyer shall pay to Seller $500,000.00 following the installation and successful
operation of the XRM. The following conditions shall apply:






	 	a.	 	The criteria for “successful operation” shall be deemed to occur when the
microscope acquires an image with at least 80nm resolution for five (5) consecutive
business days.
	 
	 	b.	 	Seller shall be responsible for establishing successful operation of the
XRM at Buyer’s chosen place of business, and Buyer shall cooperate fully in this
regard.
	 
	 	c.	 	Buyer shall make such payment to Seller following successful operation
and within twenty-one (21) days of receipt of Seller’s invoice.






	 	4.	 	Buyer shall pay to Seller $100,000.00 if and when the XRM reaches the flux and
resolution target. The flux and resolution target shall be deemed reached when the XRM can
acquire an image with spatial resolution of at least 40nm, and in a separate experiment,
demonstrate an average flux of 5 detected soft-x-ray photons/s/pixel, assuming 20um pixels,
1000X magnification and no sample present.





Royalties





	 	1.	 	Buyer shall pay to Seller five percent (5%) of the revenue received by Buyer pursuant
to completed sales of x-ray microscopes (“Royalties”) for four (4) years (“Royalty Period”)
following Buyer’s first sale of an x-ray microscope derived from
the Assets to a third-party.
	 
	 	2.	 	Buyer shall have no obligation to pay Royalties upon the conclusion of the Royalty
Period.
	 
	 	3.	 	Buyer shall pay Royalties to Seller annually, in arrears, in January of each year along
with supporting documentation.
	 
	 	4.	 	Buyer and Seller agree and acknowledge that the intent hereunder is for Seller to earn
Royalties for technologies developed to feasibility by Seller. This includes the complete
x-ray microscope (source, room temperature stage, microscope optics, camera,
acquisition software) sufficient to produce single images, a soft x-ray microscope source
based on laser plasma x-ray sources, or a soft x-ray microscope without the source.




 









 












	 	5.	 	Royalties shall not be due on any existing product or product lines of Buyer or its
affiliates. Any revenue derived from the products of Buyer that are sold into or included
in x-ray microscopy or electron microscopes shall not be subject to Royalties. This
includes cryotransfer holders and stages, tomography acquisition software, analysis and
visualization software, x-ray cameras sold separately from the original x-ray microscope
sale, and specimen preparation products.
	 
	 	6.	 	Revenues derived from service, spares, and installations are not subject to Royalties.
	 
	 	7.	 	Seller agrees not to produce x-ray microscopes or sources for x-ray microscopes, nor
enable or assist others to do so, for the duration of the Royalty Period, provided that
Buyer launches or intends to launch a commercial soft-x-ray microscope product within four
(4) years after execution of this Agreement.
	 
	 	8.	 	In the event of any transfer or assignment by Buyer of any technology subject to
Royalties hereunder, Seller shall be entitled to the Royalties that Seller would have
received had the sales been made by Buyer.





Supplier Arrangement





	 	1.	 	Seller shall serve as the exclusive laser supplier for Buyer’s soft x-ray nCT product
line during the Royalty Period.
	 
	 	2.	 	Seller shall supply such lasers to Buyer at a price discounted from that which Seller
routinely offers in the marketplace, and in no such event shall the annual average gross
margin of the laser system on sales to Buyer exceed forty percent (40%).
	 
	 	3.	 	In the event that Seller is not able to match the technical or commercial
specifications required by Buyer within thirty (30) days following notice by Buyer of a
commercial alternative meeting such specifications, then the exclusivity described herein
shall terminate.
	 
	 	4.	 	In the event that Seller is unable to manufacture the laser described herein, Seller
shall provide Buyer with access to the Seller’s design and manufacturing information, and
shall cooperate fully with Buyer’s efforts related to obtaining a replacement. Seller shall
grant to or obtain for Buyer, at no cost to Buyer, any license necessary for the supply of
such laser to Buyer.
	 
	 	5.	 	Buyer shall pay to Seller $318,750.00, or an OEM discount of fifteen percent (15%),
whichever is less, for the first laser system purchased from Seller. Buyer shall place
such order in 2007, and may change the specifications of the required laser while
preserving the discount rate of fifteen percent (15%).
	 
	 	6.	 	Buyer and Seller agree and acknowledge that this laser is not a complete Brightlight 75
system and will not achieve similar performance. This shall be a prototype system capable
of supplying approximately 50W of power. Seller shall not be responsible for upgrading
this system beyond its existing capabilities (i.e., those demonstrated and discussed during
the due-diligence period), but shall remain responsible for servicing the laser to maintain
current capability. Seller shall provide warranty service on the laser supplied with the
prototype provided for a period of two (2) years following the Effective Date. This
warranty service will cover parts and shipping costs.
	 
	 	7.	 	Buyer acknowledges that, following demonstration of successful operation, the Seller
provides the system in “As-Is” condition. No warranty is provided by the Seller on any
parts of the system except the laser.






 










 




Governing Law: This Agreement shall be governed by, construed, and enforced in accordance with the
laws of the State of California. Any legal suit, action or proceeding shall be brought in Alameda
County, California.



Indemnifications: Each party (“Indemnifying Party”) shall indemnify the other (“Indemnified Party”)
against any claim, liability, or loss (including reasonable attorney’s fees and court costs)
resulting from injury to or death of any person, any damage to property, or loss of revenues due to
(i) the acts or omissions of Indemnifying Party, its contractors, subcontractors, agents or
representatives; (ii) any breach of this Agreement by Indemnifying Party, its contractors,
subcontractors, agents or representatives; or (iii) the negligence or willful misconduct of
Indemnifying Party or its contractors, subcontractors, agents, or representatives. In the event
that Indemnified Party seeks indemnification hereunder, Indemnifying Party shall have no obligation
to indemnify as provided herein unless Indemnified Party provides prompt written notice to
Indemnifying Party of any such claims and allows Indemnifying Party the right (but not the
obligation) to control the defense, negotiations, and/or settlement of such claim. Indemnified
Party and its counsel may participate in such proceedings at it own expense but not control such
proceedings, negotiations, or defense as counsel of record if Indemnifying Party chooses to control
the defense. In such event that Indemnifying Party chooses to control the defense, Indemnified
Party shall not admit any liability, settle, compromise, pay, or discharge any such claim, demand,
suit or proceeding without the prior written consent of Indemnifying Party, which will not be
unreasonably delayed, conditioned, or withheld.



Press Releases: Seller will not include direct or indirect references to Buyer in public forums
without written authorization, except for Seller’s disclosure obligations under federal securities
laws which may require disclosure of Buyer’s name.




 









 








Exhibit A




Purchased Assets




The functional x-ray microscope shall include the following materials:




	 	 	 	 	 	 	 	 	 
	Item	 	 	 	 	 	 	 	 
	#	 	Description	 	Model	 	Use	 	Manual / Software
	1

	 	Small chiller
	 	Merlin m33
	 	cools pumps, power

meter
	 	no
	 
	 	 	 	 	 	 	 	 
	2

	 	Small breadboard
	 	Newport 1x4x2”
	 	hold scrolls
	 	no
	 
	 	 	 	 	 	 	 	 
	3

	 	Dustfilter x2
	 	Edwards a4421500
	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	4

	 	XRM vacuum / gas system
	 	 	 	 	 	custom software
	 
	 	 	 	 	 	 	 	 
	5

	 	XRM laser optics spares
	 	 	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	6

	 	XRM laser beam delivery

system
	 	Assorted

optomechanics + CVI

optics
	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	7

	 	YAG Laser
	 	BriteLight 75
	 	Currently only ~50W

output power
	 	manual
	 
	 	 	 	 	 	 	 	 
	8

	 	Laser control computer +

beam viewer
	 	 	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	9

	 	Laser electronics rack
	 	JMAR
	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	10

	 	Laser oscilloscope
	 	Tektronix TDS694C
	 	x-ray diode

monitoring
	 	no
	 
	 	 	 	 	 	 	 	 
	11

	 	Laser optical table
	 	3x4x2” Newport + legs
	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	12

	 	HeNe Laser + mount
	 	Melles Griot 05lhr111
	 	rough alignment tool
	 	no
	 
	 	 	 	 	 	 	 	 
	13

	 	Power meter
	 	Gentec PS-300V3,

serial 153293
	 	main dump
	 	no
	 
	 	 	 	 	 	 	 	 
	14

	 	IR viewer
	 	 	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	15

	 	Monitor + 2 cameras
	 	Wat-137lh, IAE,

AN064pn/pp
	 	alignment tools
	 	no
	 
	 	 	 	 	 	 	 	 
	16

	 	Stage encoder readouts x8
	 	Renishaw
	 	sample chamber
	 	manuals
	 
	 	 	 	 	 	 	 	 
	17

	 	Stage driver box
	 	Nanomotion
	 	sample chamber
	 	manuals, software
	 
	 	 	 	 	 	 	 	 
	18

	 	Fiber light illuminator
	 	X-Cite 120
	 	for integrated VLM
	 	manual
	 
	 	 	 	 	 	 	 	 
	19

	 	VLM camera
	 	Coolsnap ES,

A05K877004
	 	 	 	manual, software
	 
	 	 	 	 	 	 	 	 
	20

	 	Microscope “top”
	 	Nikon, MBE74100
	 	 	 	manual
	 
	 	 	 	 	 	 	 	 
	21

	 	Sample vacuum chamber +

flanges + 2x cube
	 	Lesker
	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	22

	 	Source vacuum chamber
	 	Lesker
	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	23

	 	Vacuum bellows
	 	 	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	24

	 	Nozzle xyz stage
	 	Newfocus 9041
	 	in source chamber
	 	manuals
	 
	 	 	 	 	 	 	 	 
	25

	 	3x pico motors
	 	Serial 1181
	 	in source chamber
	 	manuals






 









 






	 	 	 	 	 	 	 	 	 
	Item	 	 	 	 	 	 	 	 
	#	 	Description	 	Model	 	Use	 	Manual / Software
	26

	 	2x CCD
	 	Prosilica
	 	in source chamber
	 	manuals, software
	 
	 	 	 	 	 	 	 	 
	27

	 	CCD microscope objective
	 	Edmund optics
	 	in source chamber
	 	no
	 
	 	 	 	 	 	 	 	 
	28

	 	Custom in vacuum sample /optics

positioning
	 	8x nanomotion

motors, 4 PI stages
	 	in source chamber
	 	manuals, software
	 
	 	 	 	 	 	 	 	 
	29

	 	Custom x-ray camera

positioning system
	 	 	 	on optical table
	 	no
	 
	 	 	 	 	 	 	 	 
	30

	 	Optical table + feet
	 	4x8x1, Newport,

Melles Legs
	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	31

	 	4x newfocus pico motor

ethernet controllers
	 	Model 8752
	 	 	 	manuals
	 
	 	 	 	 	 	 	 	 
	32

	 	newfocus picomotor joystick x2
	 	Model 8754
	 	 	 	manuals
	 
	 	 	 	 	 	 	 	 
	33

	 	Tektronix scope
	 	TDS1012
	 	shutter

synchronization
	 	no
	 
	 	 	 	 	 	 	 	 
	34

	 	Datalogger
	 	Agilent 34970A
	 	temperature

monitoring
	 	manuals, software
	 
	 	 	 	 	 	 	 	 
	35

	 	Delay generator x4
	 	SRS DG535
	 	synchronization
	 	no
	 
	 	 	 	 	 	 	 	 
	36

	 	XRM control computer
	 	ATC
	 	runs xrm vacuum

system sample

stages
	 	no
	 
	 	 	 	 	 	 	 	 
	37

	 	XRM imaging computer
	 	 	 	runs x-ray ccd +

VLM ccd
	 	no
	 
	 	 	 	 	 	 	 	 
	38

	 	Hp ethernet switch
	 	 	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	39

	 	Jet viewing computer
	 	 	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	40

	 	2x UPS
	 	 	 	 	 	manuals
	 
	 	 	 	 	 	 	 	 
	41

	 	Custom shutter control box
	 	 	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	42

	 	Custom XRM electronics box
	 	 	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	43

	 	Digital laser power readout
	 	Gentec duo, 151161
	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	44

	 	Analog laser power readout
	 	Gentec, TPM-300
	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	45

	 	X-ray objective zone plate x2
	 	Xradia
	 	 	 	specs
	 
	 	 	 	 	 	 	 	 
	46

	 	X-Ray condenser zone plate
	 	Xradia
	 	 	 	specs
	 
	 	 	 	 	 	 	 	 
	47

	 	Partial x-ray condenser zone

plate x2
	 	Xradia
	 	 	 	specs
	 
	 	 	 	 	 	 	 	 
	48

	 	Spare nozzles
	 	 	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	49

	 	Spare x-ray windows
	 	 	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	50

	 	table top mini clean room
	 	 	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	51

	 	Desiccator
	 	 	 	 	 	no
	 
	 	 	 	 	 	 	 	 
	52

	 	Chiller	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	53

	 	X-ray metrology equipment	 	 	 	 	 	 







 









 




Additionally, the following spare optics will be transferred:




Lenses

QTY3 LAP-75 0-15-1064

QTY4 LAPQ-75.0-15-1064

QTY1 PLCX-25.4-3683-UV-1064

QTY1 PLCC-25.4-51.5-C-1064/532

QTY1 PLCC-25.4-360.6-UV-1064

QTY2 PLCC-25.4-77.3-UV-1064

QTY1 PLCX-25.4-77.3-C-1064/532




Windows

QTY 2 W2-PW1-1025-1064-0

QTY 3 PW1-1025UV-1064-0




Mirrors

QTY 4 Y1-2037-60-S

QTY 2 Y1-2037-45-P

QTY 2 Y1-1025-0

QTY 2 Y1-2037-45-UNP

QTY 1 Y1-1064-2025-45-UNP

QTY 4 Y1-1025-45-UNP




Beam Splitter

QTY 1 BS1-1064-70-1025-45UNP

QTY 2 BS1-1064-50-1025-45P




 









 





Exhibit B




Loaned Assets




	 	 	 	 	 	 	 	 	 
	Item #	 	Description	 	Model #	 	Use	 	Manual/ Software
	1

	 	Scroll pump
	 	Varian pts06001univ
	 	pumps source
	 	no
	2

	 	Scroll pump
	 	Varian pts03001univ
	 	pumps sample
	 	manual
	3

	 	Turbo pump
	 	Varian tv1001
	 	pumps source
	 	manual + software
	4

	 	Oscilloscope
	 	Lecroy waverunner 6KAA
	 	 	 	manual
	5

	 	X-Ray camera
	 	Princeton Instruments
	 	 	 	manual
	 

	 	 	 	1300x1340 soft x-ray CCD,	 	 	 	 
	 

	 	 	 	J010022, property of JMAR	 	 	 	 
	 

	 	 	 	stickers + controller +	 	 	 	 
	 

	 	 	 	interface card	 	 	 	 
	6

	 	CCD microscope objective
	 	Melles Griot 59lgn705
	 	 	 	manual
	7

	 	Laser power meter
	 	Gentech, up55N, serial 167563
	 	 	 	manual + software
	8

	 	Laser beam profiler
	 	Photon Inc, USBPro
	 	 	 	manual
	9

	 	Focusing lens xyz stage
	 	Newfocus encoded staged +

picomotors
	 	on optical table	 	 







 









 










 




			
	*	 	Seller grants to Buyer a license to use all intellectual property related to the “Rotating
Shutter for Laser-Produced Plasma Debris Mitigation”, reference #11/161,237, for non-x-ray
microscopy applications.





 









 









IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date indicated below:




Gatan, Inc




	 	 	 	 	 
	By:

	 	/s/ THOMAS G. CONNELLY
 

	 	 
	 	 	Printed Name: THOMAS G. CONNELLY	 	 
	 	 	Title: PRESIDENT	 	 
	 	 	Date: March 16, 2007	 	 






JMAR Technologies, Inc




	 	 	 	 	 
	By:

	 	/s/ C. NEIL BEER
 

	 	 
	 	 	Printed Name: C. NEIL BEER	 	 
	 	 	Title: PRESIDENT & CEO
	 	 
	 	 	Date: 3/16/2007