of the actual state of facts or conditions of Nanometrics, Rudolph or any of their respective affiliates. Moreover, certain of those representations and warranties may not be accurate or complete
as of any specified date, may be subject to a contractual standard of materiality different from those generally applicable to SEC filings or may have been used for purposes of allocating risk among the parties to the Merger Agreement, rather than
establishing matters of fact. The Merger Agreement should not be read alone, but should instead be read in conjunction with the other information regarding Rudolph, Nanometrics or any of their respective affiliates, the Merger Agreement and the
Merger that will be contained in, or incorporated by reference into, the Registration Statement on Form
S-4
that will include a Joint Proxy Statement of Rudolph and Nanometrics and a prospectus of Nanometrics
as well as in the Forms
10-K,
Forms
10-Q
and other filings that each of Rudolph and Nanometrics make with the SEC.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On June 23, 2019, Nanometrics Board of Directors adopted an amendment to Nanometrics Bylaws (the Bylaw Amendment) to add a new
Article XI thereto, which became effective immediately. The Bylaw Amendment provides that the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware does not have jurisdiction, another state court located
within the State of Delaware, or if no such state court located within the state of Delaware has jurisdiction, the federal district court for the District of Delaware) is, to the fullest extent permitted by law, the sole and exclusive forum for
certain actions (Actions), summarized as follows: (i) any derivative action or proceeding brought on behalf of Nanometrics, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, other
employee or agent of Nanometrics to Nanometrics or Nanometrics stockholders, including any claim alleging aiding and abetting of such breach of a fiduciary duty, (iii) any action asserting a claim arising pursuant to any provision of the
Delaware General Corporation Law (the DGCL), Nanometrics certificate of incorporation or Nanometrics Bylaws , (iv) any action asserting a claim against Nanometrics or any director or officer or other employee of Nanometrics
governed by the internal affairs doctrine, or (v) any other action asserting an internal corporate claim as that term is defined in Section 115 of the DGCL. Any person or entity owning, purchasing or otherwise acquiring any
interest in shares of Nanometrics capital stock will be deemed to have notice of and consented to the provisions of the Bylaw Amendment. The Bylaw Amendment also provides that if any Action is filed in a court other than in accordance with the Bylaw
Amendment (a Foreign Action) in the name of any stockholder, that stockholder will be deemed to have consented to (a) the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with
any Action brought in any such court to enforce the forum selection provisions of the Bylaw Amendment, and (b) having service of process made upon such stockholder in any such enforcement action by service upon such stockholders counsel
in the Foreign Action as agent for such stockholder.
The foregoing description of the Bylaw Amendment does not purport to be complete and is qualified in
its entirety by reference to the full text of the Bylaw Amendment, which is filed as Exhibit 3.1 hereto and is incorporated herein by reference.
Item 8.01. Other Events.
On June 24, 2019,
Rudolph and Nanometrics issued a joint press release announcing the execution of the Merger Agreement. A copy of the joint press release is attached to this report as Exhibit 99.1 and is incorporated by reference herein. The information contained on
the websites referenced in the press release is not incorporated herein.
On June 24, 2019, Mr. Lesaicherre sent correspondence by
e-mail
transmission to Nanometrics employees. A copy of the form of email is filed as Exhibit 99.2 hereto and is incorporated herein by reference.
On June 24, 2019, representatives of Nanometrics sent correspondence by
e-mail
transmission to Nanometrics
suppliers. A copy of the form of email is filed as Exhibit 99.3 hereto and is incorporated herein by reference.
On June 24, 2019, representatives of
Nanometrics sent correspondence by
e-mail
transmission to Nanometrics customers. A copy of the form of email is filed as Exhibit 99.4 hereto and is incorporated herein by reference.
On June 24, 2019, Nanometrics and Rudolph expect to hold a joint investor conference call in connection with the announcement of the execution of the
Merger Agreement. The slide presentation to be used by Nanometrics and Rudolph during the joint conference call is attached hereto as Exhibit 99.5 and incorporated herein by reference.