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Exhibit 10.29
AGREEMENT FOR THE SALE AND PURCHASE OF ASSETS
AND THE ASSUMPTION OF CONTRACT OBLIGATIONS
THIS AGREEMENT FOR THE SALE AND PURCHASE OF ASSETS AND THE ASSUMPTION
OF CONTRACT OBLIGATIONS ("AGREEMENT") is entered into as of July _____, 1999 by
and between Xxxxxxxxx Technologies USA, Inc., a Delaware corporation ("SELLER")
and Novellus Systems, Inc., a California corporation ("PURCHASER").
RECITALS
A. Seller desires to sell and transfer certain assets, rights and
intangible property and contracts to Purchaser on the terms and
conditions set forth in this Agreement.
B. Purchaser desires to purchase or assume, certain assets, rights and
intangible property and contract obligations from Seller on the terms
and conditions set forth in this Agreement.
C. List of attached exhibits:
Exhibit A: Equipment
Exhibit B: Inventory
Exhibit C: Intellectual Property
Exhibit D: Intel Purchase Order
Exhibit E: Sublicense For Low-K and Spin-On-Glass
Exhibit F: Sublicense For Patent Number 5,013,586
Exhibit G: Xxxx of Sale
Exhibit H: Assignment of Contract
NOW, THEREFORE, in consideration of the mutual promises set forth in
this Agreement, the parties hereto agree as follows:
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ARTICLE I: DEFINITIONS
The following terms, as used herein, have the following respective
meanings:
"LIEN" means any mortgage, lien, pledge, charge, security interest,
encumbrance of any kind or any right of any third party.
"PERSON" means an individual, a corporation, a partnership, an
association, a trust, or any other entity or organization, including a
government or political subdivision or an agency or instrumentality
thereof.
"TAX" means with respect to any Person any income, gross receipts,
sales, use, ad valorem, franchise, license, withholding, payroll,
employment, excise, severance, stamp, occupation, or property tax,
custom duty or other tax, fee, assessment or charge of any kind
whatsoever, together with any interest and any penalty, addition to tax
or additional amount imposed by any taxing authority on such Person.
ARTICLE II: SALE AND PURCHASE OF ASSETS
AND ASSUMPTION OF CONTRACT OBLIGATIONS
2.01 ACQUIRED ASSETS.
Subject to the terms and conditions of this Agreement and for the
consideration set forth herein, Seller shall, at the Closing, sell,
convey, assign, transfer and deliver to Purchaser, and Purchaser shall
purchase and acquire from Seller, free and clear of any and all liens,
claims and encumbrances, the following assets of Seller as the same
shall exist at the Closing (but excluding from such assets the assets
described in Section 2.01(c) (collectively, the "ACQUIRED ASSETS"):
(a) The equipment identified on Exhibit A hereto, for the purchase
price of One Million Eighty-Three Thousand Dollars
($1,083,000) (as allocated on Exhibit A);
(b) All of Seller's right, title and interest in and to the
intellectual property set forth in Exhibit C hereto (the
"INTELLECTUAL PROPERTY") for the purchase price of Six Million
Dollars ($6,000,000).
(c) Excluded Assets.
Nothing herein shall give Purchaser the right to use the name
"Xxxxxxxxx," "Xxxxxxxxx Technologies," "Falcon," or any other
trade name or trademark.
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Nothing herein shall be deemed to grant to Purchaser any
ownership rights to information, intellectual property,
obligations or liabilities related to IRSET DUV module at
Intel Corporation. Seller specifically retains all liabilities
and rights to use, sell, distribute, license, sublicense or
otherwise exercise ownership rights with respect to any
information or intellectual property related to IRSET DUV
module.
Except as set forth in Section 4.03 (Title), the Acquired
Assets are sold as is. The parties shall share equally in the
costs of delivery and duties for the Acquired Assets.
2.02 ASSUMPTION OF INTEL PURCHASE ORDER.
The Seller sells, conveys, assigns, transfers and delivers to Purchaser
and the Purchaser hereby accepts the assignment of and assumes all
obligations (other than the obligations relating to the IRSET DUV
module) under the Purchase Order with Intel Corporation, attached
hereto as Exhibit D (the "INTEL PURCHASE ORDER").
Other than the obligations relating to the IRSET DUV module, Purchaser
shall assume the ongoing support and warranty obligations (including
spare parts requirements) under the Intel Purchase Order.
Purchaser shall be entitled to receive and retain the final acceptance
payment from Intel Corporation under the Intel Purchase Order (in the
approximate amount of $256,000). Purchaser acknowledges and agrees that
receipt of payments from Intel is subject to Purchaser's compliance and
fulfillment of the terms, conditions and obligations under the purchase
order, and is subject to Intel Corporation's acceptance of the products
delivered under the Intel Purchase Order.
Purchaser shall hold Seller free and harmless from all liability,
judgments, costs, damages, claims or demands, including reasonable
attorneys fees, arising out of Purchaser's failure to comply with or
perform all obligations under the Intel Purchase Order, other than
obligations and liabilities related to IRSET DUV module which shall be
retained by Seller.
Purchaser and Seller acknowledge and agree that the assignment of the
Intel Purchase Order is subject to the written consent of Intel
Corporation. Neither party shall have any obligation to close hereunder
unless such consent is obtained. Seller warrants and represents to
Purchaser that all payments or obligations under the Intel Purchase
Order to be assumed by Purchaser are or will be current as of Closing,
except for having the equipment accepted by Intel Corporation, and
performing such additional work as may be necessary to have the
equipment accepted by Intel Corporation.
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2.03 PAYMENT TERMS.
The aggregate purchase price of Seven Million Eighty-Three Thousand
Dollars ($7,083,000), as set forth in Section 2.01 (the "PURCHASE
PRICE"), shall be paid at the Closing by wire transfer in immediately
available funds.
2.04 NO OTHER ASSUMED OBLIGATIONS.
Except for the specific obligations and liabilities assumed by
Purchaser pursuant to Section 2.02 hereof, Purchaser is not assuming
any obligations or liabilities of Seller, whether relating to Seller's
operations, Seller's employees, warranty obligations to Seller's
customers, Seller's tax obligations, or otherwise.
ARTICLE III: CLOSING; DELIVERIES
3.01 CLOSING.
The closing (the "CLOSING") of the transactions contemplated herein
shall occur on the date hereof (the "CLOSING DATE"), at the offices of
Xxxxxxxx & Xxxxxxxx, LLP, 000 Xxxx Xxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx.
3.02 DELIVERIES BY SELLER AT THE CLOSING.
At the Closing, Seller shall deliver or cause to be delivered to
Purchaser:
(a) An executed Sublicense for Low-K and Spin-On-Glass applications,
substantially in the form of Exhibit E hereof.
(b) An executed Sublicense for Patent Number 5,013,586, substantially
in the form of Exhibit F hereof. (The Sublicenses referenced in
Section 3.02 (a) and (b) are hereafter referred to as the
"SUBLICENSE AGREEMENTS".)
(c) An executed Xxxx of Sale, substantially in the form of Exhibit G
hereto.
(d) An executed Assignment of Contract, substantially in the form of
Exhibit H hereto, including the consent of Intel Corporation to
such assignment.
(e) A Secretary's Certificate certifying the resolutions of the Board
of Directors of Seller authorizing consummation of the
transactions contemplated by this Agreement, together with a good
standing certificate from the Delaware Secretary of State.
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3.03 DELIVERIES BY SELLER AFTER THE CLOSING.
Seller shall use reasonable commercial efforts to cause the Acquired
Assets to be promptly delivered to Purchaser after Closing, but in no
event shall such delivery occur more than 30 days after the Closing.
3.04 DELIVERIES BY PURCHASER AT THE CLOSING.
At the Closing, Purchaser shall deliver or cause to be delivered to
Seller:
(a) The Purchase Price, as provided in Section 2.03.
(b) A Secretary's Certificate certifying the resolutions of the Board
of Directors of Purchaser authorizing consummation of the
transactions contemplated by this Agreement, together with a good
standing certificate from the California Secretary of State.
(c) An executed counterpart of the Sublicense Agreements, the Xxxx of
Sale and the Assignment of Contract referenced in Sections 3.02
(a), (b), (c) and (d).
3.05 CONDITIONS TO OBLIGATIONS OF PURCHASER.
All obligations of Purchaser, at its option, are conditioned upon the
fulfillment, prior to or at the Closing, of all of the following
conditions, any one or more of which may be waived by Purchaser:
(a) All of Seller's warranties and representations shall be true and
accurate as of Closing.
(b) Seller shall have performed all of its obligations hereunder to
be performed prior to or at Closing.
(c) Seller shall have delivered all items referenced in Section 3.02
hereof.
(d) There shall have been no material loss or destruction of the
assets to be transferred hereunder as of Closing.
(e) Seller shall have obtained the written consent of Intel
Corporation to the assignment of the Intel Purchase Order (it
being understood that neither party shall have any further
obligations under this Agreement if such consent is not
obtained).
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(f) Purchaser shall have entered into employment agreements with the
following individuals:
Xxx Xxxxxxxxxx
Xxxxx Xxxxxxxx
Xxxxx Xxx
Xxxx Xxx
(g) Seller shall have provided Purchaser the opportunity to conduct
the due diligence on the assets and transfers contemplated hereby
and all aspects of Seller's business which could affect the
representations and warranties or other obligations of Seller
hereunder and shall be satisfied with the results of such
diligence.
(h) Satisfactory amendments shall have been made to the primary
License Agreements sufficient to support the underlying
Sublicense Agreements, including without limitation, extending
the term of the Sublicense Agreement for Patent Number 5,013,586
from June 13, 2006 until the life of the patent.
(i) Purchaser and Seller shall have entered into a Services Agreement
regarding the employees referenced in clause (f) above, in form
and substance acceptable to the parties.
(j) Purchaser will use all reasonable efforts to satisfy all of the
foregoing conditions.
3.06 CONDITIONS TO OBLIGATIONS OF SELLER.
All obligations of Seller, at its option, are conditioned upon the
fulfillment, prior to or at the Closing, of all of the following
conditions, any one or more of which may be waived by Purchaser:
(a) All of Purchaser's warranties and representations shall be true
and accurate as of Closing.
(b) Purchaser shall have performed all of its obligations hereunder
to be performed prior to or at Closing.
(c) Purchaser shall have delivered all items referenced in Section
3.04 hereof.
(d) Seller shall have obtained the written consent of Intel
Corporation to the assignment of the Intel Purchase Order (it
being understood that neither party shall have any further
obligations under this Agreement if such consent is not
obtained).
3.07 FURTHER ASSURANCES.
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From time to time, each party hereto shall deliver (upon request) such
further assignments, bills of conveyances, assumptions, instruments or
other documents and provide such other cooperation as may be reasonably
required by the other party hereto to further evidence the assignment
of assets (including intellectual property) and assumption of
obligations (including the Intel Purchase Order) intended to be
assigned and/or assumed pursuant to this Agreement and the Exhibits
hereto.
ARTICLE IV: REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants the following as of the time of signing this
Agreement and as of the Closing Date:
4.01 SELLER'S EXISTENCE AND CORPORATE ORGANIZATION.
Seller is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware. The execution,
delivery and performance by Seller of this Agreement are within
Seller's corporate powers and have been duly authorized by all
necessary corporate action.
4.02 CONTRAVENTION; BINDING EFFECT.
The execution, delivery and performance by Seller of this Agreement do
not contravene, or constitute a default under, any provision of
applicable law or regulation or of any agreement, judgment, injunction,
order, decree or other instrument binding upon Seller or result in the
creation of any Lien on any of the Acquired Assets.
This Agreement constitutes a legal, valid and binding obligation of
Seller, enforceable against Seller in accordance with its terms.
4.03 TITLE.
Seller is the owner of, and has good and marketable title to, all of
the Acquired Assets and the Intel Purchase Order to be transferred
under the terms of this Agreement (subject in the case of the Intel
Purchase Order to obtaining consent from Intel Corporation), and will
transfer good title to said assets to Purchaser at Closing free and
clear of all liens, charges, encumbrances and any other rights of third
parties.
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The use of the Intellectual Property by Seller in the Seller's business
prior to Closing does not, and the use of the Intellectual Property by
Purchaser after Closing in compliance with the terms of the Sublicense
Agreements will not violate any license or other agreement between
Seller and any third party.
Except as disclosed in Exhibit C hereof, Seller has received no written
notice of and has no knowledge of any infringement or any alleged
infringement on the rights of any third party, or of any action or
proceeding pending or threatened, contesting the validity, ownership or
right to use, sell, license or dispose of the Intellectual Property.
To Seller's knowledge, the patents relating to the Sublicense
Agreements are valid based on the prior art of which Seller is aware.
Seller has the right to sublicense the patents as contemplated by the
Sublicense Agreements, and has the right to transfer and assign the
other Intellectual Property to Purchaser hereunder.
4.04 CONSENTS.
Other than Intel Corporation's consent for the assignment of the Intel
Purchase Order, no consents or approvals of any public body or
authority and no consents or waivers from other parties are required
for the lawful consummation of the transactions contemplated hereby.
ARTICLE V: PURCHASER'S REPRESENTATIONS AND WARRANTIES
Purchaser represents and warrants the following as of the time of signing this
Agreement and as of the Closing Date:
5.01 PURCHASER'S EXISTENCE AND CORPORATE ORGANIZATION.
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of California. The execution,
delivery and performance by Purchaser of this Agreement are within
Purchaser's corporate powers and have been duly authorized by all
necessary corporate action.
5.02 CONTRAVENTION; BINDING EFFECT.
The execution, delivery and performance by Purchaser of this Agreement
do not contravene, or constitute a default under, any provision of
applicable law or regulation or of any agreement, judgment, injunction,
order, decree or other instrument binding upon Purchaser.
This Agreement constitutes a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its terms.
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5.03 CONSENTS.
No consents or approvals of any public body or authority and no
consents or waivers from other parties are required for the lawful
consummation of the transactions contemplated hereby.
5.04 PURCHASER'S KNOWLEDGE OF THE SELLER AND THE ACQUIRED ASSETS.
Purchaser has had access to, and has examined, all materials it has
requested regarding Seller's business and the Acquired Assets.
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ARTICLE VI: PURCHASER'S COVENANTS
6.01 ASSISTANCE IN CONNECTION WITH THE COLLECTION OF SELLER'S ACCOUNTS
RECEIVABLE.
If any of Seller's accounts receivable are erroneously paid to
Purchaser, Purchaser shall pay over the amounts received to Seller
within 15 days of receipt.
6.02 SELLER'S PRODUCT WARRANTY OBLIGATIONS.
Other than warranty obligations under the Intel Purchase Order (which
are assumed by Purchaser, as provided in Section 2.02 hereof),
Purchaser shall not assume, nor have any obligations to provide
assistance for, any product warranty obligations.
6.03 OBLIGATION TO PURCHASE INVENTORY.
Purchaser shall purchase the inventory identified on Exhibit B hereto
(the "INVENTORY"), which is valued at approximately $29,000. Seller
shall use its best efforts to cause the Inventory to be promptly
delivered to Purchaser after Closing. Seller shall invoice Purchaser
for the Inventory, and Purchaser shall pay such invoice within thirty
(30) days after its receipt. The parties shall share equally in the
costs of delivery and duties for the Inventory.
ARTICLE VII: TAXES
7.01 TRANSFER TAXES.
All transfer and similar taxes or duties, including but not limited to
sales or use tax or stamp duties payable in connection with the
transfer and conveyance of the Acquired Assets, shall be the
responsibility of and shall be paid by the Purchaser.
7.02 TAX INFORMATION.
Each party to this Agreement shall provide the other party with access
to all relevant documents, data and other information that may be
reasonably required by the other party for the purpose of preparing tax
returns and responding to any audit by any governmental agency. Each
party to this Agreement shall cooperate with all reasonable requests of
the other party made in connection with resisting or contesting the
imposition of taxes. Notwithstanding anything to the contrary in this
Agreement, neither party to this Agreement shall be required at any
time to disclose to the other income tax returns or other confidential
tax information.
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ARTICLE VIII: SURVIVAL; INDEMNIFICATION
8.01 SURVIVAL OF REPRESENTATIONS; REMEDY FOR BREACH.
The representations and warranties of the parties contained herein
shall survive until January 1, 2005; provided that: (i) the
representations made in Article VII (Taxes) shall survive until such
time as claims by third parties, including the competent fiscal
authorities, are barred by the relevant statute of limitations; and
(ii) the representations made in Section 4.03 (Title) shall survive for
the life of the patents sublicensed under the Sublicense Agreements.
Seller and Purchaser agree to use reasonable efforts to mitigate any
loss or damage for which they may seek indemnification under this
Article 8.
8.02 INDEMNIFICATION BY SELLER.
Seller shall indemnify Purchaser against and agrees to hold it harmless
from any and all damage, loss, liability and expense (including,
without limitation, reasonable expenses of investigation and attorneys'
fees and expenses in connection with any action, suit or proceeding
brought against Purchaser or its affiliates) incurred or suffered by
Purchaser arising out of any misrepresentation, breach of warranty or
breach of covenant made by Seller pursuant to this Agreement or any of
the agreements entered in connection herewith.
8.03 INDEMNIFICATION BY PURCHASER.
Purchaser shall indemnify Seller against and agrees to hold it harmless
from any and all damage, loss, liability and expense (including,
without limitation, reasonable expenses of investigation and attorneys'
fees and expenses in connection with any action, suit or proceeding
brought against Seller or its affiliates) incurred or suffered by
Seller arising out of any misrepresentation, breach of warranty or
breach of covenant made by Purchaser pursuant to this Agreement or any
of the agreements entered in connection herewith.
8.04 NOTICE AND PROCEDURE FOR INDEMNIFICATION.
A party seeking indemnification pursuant to this Article 8 (an
"INDEMNIFIED PARTY") shall give prompt written notice to the party from
whom such indemnification is sought (the "INDEMNIFYING PARTY") of the
assertion of any claim, or the commencement of any action, suit or
proceeding, in respect of which indemnity may be sought hereunder and
will give the indemnifying party such information with respect thereto
as the indemnifying party may reasonably request, but no failure to
give such notice shall relieve the indemnifying party of any liability
hereunder. The indemnifying party may, at its expense, participate in
or assume the defense of any such action, suit or proceeding involving
a third party. In such case the indemnified party shall have the right
(but not the duty) to participate in the defense thereof, and to employ
counsel, as its own expense,
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separate from counsel employed by the indemnifying party in any such
action and to participate in the defense thereof.
ARTICLE IX: MISCELLANEOUS
9.01 NOTICES.
All notices, consents, requests, instructions, approvals and other
communications required or authorized to be given by either party to
the other under this Agreement shall be made in writing and shall be
deemed to have been given or submitted (i) when delivered by hand, (ii)
on the same day if communicated by fax, and (iii) five (5) days after
the date deposited in the mail in registered form, first class, airmail
postage prepaid, addressed as follows :
if to Purchaser: if to Seller:
Novellus Systems, Inc. Xxxxxxxxx Technologies USA, Inc.
0000 Xxxxx Xxxxx Xxxxxx c/o Fairchild Xxxxx Xxxxxxxxxx
Xxx Xxxx, XX 00000 00000 Xxxxxxxx Xxxxx, Xxxxx 000
Attention: Xx. Xxxxxx X. Xxxxx Xxxxxx, Xxxxxxxx 00000
Executive Vice President and CFO Attention: General Counsel
Fax: 000-000-0000 Fax: 000-000-0000
Telephone: 000-000-0000 Telephone: 000-000-0000
or to such other address as either party hereto may hereafter specify
from time to time by notice to the other party.
9.02 NON-WAIVER OF DEFAULT
Any failure by either party, at any time, or from time to time, to
enforce and require the strict keeping and performance of any of the
terms and conditions of this Agreement shall not constitute a waiver of
any such terms and conditions at any future time and shall not prevent
such party from insisting on the strict keeping and performance of such
terms and conditions at any later time.
9.03 INTERPRETATION.
Should a provision of this Agreement require judicial interpretation,
it is agreed that the judicial body interpreting or construing the same
shall not apply the assumption that the terms hereof shall by more
strictly construed against one party by reason of the rule of
construction that an instrument is to be construed more strictly
against the party who
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itself or through its agents prepared the same, it being agreed that
the agents of both parties have participated in the preparation hereof
equally.
9.04 AMENDMENT OR RESCISSION.
This Agreement shall not be modified or rescinded except by written
instruments signed by authorized representatives of both parties
hereto.
9.05 ENTIRE AGREEMENT.
This Agreement and the related agreements specifically referred to
herein embody the entire agreement of the parties hereto with respect
to the subject matter hereof and supersede all prior agreements with
respect thereto.
9.06 CAPTIONS.
Captions herein are inserted for convenience of reference only and
shall be ignored in the construction or interpretation of this
Agreement. Unless the context requires otherwise, all references herein
to Articles and Sections are to the articles and sections of this
Agreement.
9.07 GOVERNING LAW.
This Agreement shall be construed in accordance with and governed by
the laws of the State of California. Non-exclusive place of
jurisdiction and venue shall be in the State of California.
9.08 ATTORNEY'S FEES.
If any party named herein brings an action or proceeding to enforce the
terms hereof or to declare rights hereunder, the prevailing party in
any such action or proceeding shall be entitled to its reasonable
attorney's fees to be paid by the other party.
9.09 COUNTERPART SIGNATURES / FACSIMILE DELIVERY.
This Agreement may be signed in counterparts and delivered by
facsimile.
9.10 BROKERS.
None of the parties has employed a broker or finder with respect to the
transactions contemplated by this Agreement. Each party holds all
others harmless and agrees to indemnify them against claims made by any
broker or finder resulting from acts or representations of the
indemnifying party.
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9.11 BULK TRANSFER ACT.
The parties hereto acknowledge that they have waived compliance with
the California Bulk Transfers Act. Seller shall indemnify Purchaser for
any action against Purchaser by Seller's creditors (or the creditors of
prior owners of Seller's business and assets) to recover debts of the
Seller (or such prior owners) for any reason whatsoever, including
noncompliance with the California Bulk Transfers Act. This provision
shall survive indefinitely.
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following page.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
effective as of the date first above written.
Seller Purchaser
XXXXXXXXX TECHNOLOGIES USA, INC. NOVELLUS SYSTEMS, INC.
By: __________________________
By: _________________________
Its
Its
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EXHIBIT A
EQUIPMENT
LK 800 low k system (Beta 1) installed in lab in Fremont $ 340,000
LK 800E low k system (Beta 2) (needs some upgrading),
installed in Fremont 625,000
Additional Low Oxygen cure module
(located in Fremont 140,000
Nanospec 4150 (located in Fremont) 122,000
Tencor P10 (located in Fremont) 98,000
Microscope (located in Fremont) 2,500
----------
Total Book Value $1,327,500
Purchase Discount 50%
----------
Purchase Price $ 664,000
========================================================================
LK 800 low k system
(crated and ready to ship, in Germany) $ 419,000
========================================================================
Total: $1,083,000
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EXHIBIT B
INVENTORY
(ATTACHED)
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EXHIBIT C
INTELLECTUAL PROPERTY
1. All of Seller's intellectual property (other than trade names and
trademarks), including any Tangible Embodiments (as defined below)
thereof, related to Low-K Spin-On Dielectrics, including without
limitation the following intellectual property noted in Xxx
Xxxxxxxxxx'x memo to Xxx Xxxxxxxx dated June 1, 1999 (attached):
(a) Open closed/spinning bowl
(b) Environmentally controlled hot plate oven
(c) Vacuum cure/aging module (Nanoporisity module)
(d) Twin spin module
(e) Process proprietary knowledge
and also including:
(f) LK 800 and LK 800E systems
(g) All documentation, drafts, papers, schematics, diagrams,
prototypes, materials, software, databases, designs, works of
authorship, compositions of matter, manufacturing drawings, bills of
materials, books, records, logs, plans, specifications, blueprints,
data, operating manuals, drawings, sketches, marketing materials and
other reports or documents (collectively, the "TANGIBLE EMBODIMENTS")
relating to the foregoing items (a) through (f).
2A. All of Seller's rights under certain patents in accordance with the
terms of the Sublicense for Low-K and Spin-On-Glass applications,
attached hereto as Exhibit E, and
2B. All of Seller's rights under US Patent 5,013,586 in accordance with the
Sublicense for Patent Number 5,013,586, attached hereto as Exhibit F.
3. All of Seller's sales, marketing, product development and technology
plans and information relating exclusively to Seller's Low-K and
Spin-On-Glass business.
4. All of Seller's rights to build, use, distribute, sell, license,
sublicense or otherwise exercise ownership rights to the Falcon
Platform, including all Tangible Embodiments related thereto, for Low-K
and Spin-On-Glass applications only.
The Falcon Platform includes:
1. Wafer handling system, including
a. input/output modules
b. linear robot
c. buffer station
d. main atmospheric robot
2. System mainframe
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3. System mainframe control system, including
a. computer
b. user interface
c. support electronics
d. all interfaces
4. Power distribution and safety system
5. Scheduling Software/GUI
5. Purchaser acknowledges and agrees that Seller has previously
transferred certain drawings, technical data, information and know how
with respect to the Falcon Platform (collectively, the "Falcon
Information") to Suss Micro Tec, AG ("Suss"), that Suss has developed
an independent Low-K and Spin-on-Glass business and may use the Falcon
Information in connection with such business, and that Suss has the
exclusive right to use the Falcon Information in connection with the
photo-resist business that Seller previously sold to Suss. However,
Seller acknowledges, agrees and confirms that Suss may not use any of
the intellectual property acquired by (or licensed to) Purchaser
pursuant to paragraphs 1 or 2A above in connection with its independent
Low-K and Spin-on-Glass business. With respect to the intellectual
property licensed to Purchaser pursuant to paragraph 2B above,
Purchaser acknowledges, agrees and confirms that such license is
non-exclusive, and that Suss retains all rights to use, license,
sublicense, or otherwise exploit such intellectual property.
Nothing herein shall be deemed to grant to Purchaser any rights to the
name "Falcon" or any rights to the Falcon Platform for applications
other than Low-K and Spin-On-Glass.
6. Disclosure of Alleged Infringement:
In the past, Suss MicroTec AG (the Licensor for the patents that are
the subject of the Sublicense Agreements) has claimed that Seller has
infringed on certain Suss MicroTec AG patents. Pursuant to Article 7 of
the License Agreement for Patent No. 5,013,586 between Suss MicroTec AG
and Seller, Suss MicroTec AG waived any such further claims.
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EXHIBIT D
INTEL PURCHASE ORDER
(ATTACHED)
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EXHIBIT E
SUBLICENSE FOR LOW-K AND SPIN-ON-GLASS
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EXHIBIT F
SUBLICENSE FOR PATENT NUMBER 5,013,586
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EXHIBIT G
XXXX OF SALE
This Xxxx of Sale is made as of July ___, 1999 (the "Closing Date"),
by and between Xxxxxxxxx Technologies USA, Inc., a Delaware corporation
("Seller"), and Novellus Systems, Inc., a California corporation ("Purchaser").
Capitalized terms used without definitions herein shall have the same meanings
ascribed to such terms in the Agreement for the Sale and Purchase of Assets and
the Assumption of Contract Obligations by and between Purchaser and Seller dated
____, 1999 (the "Purchase Agreement").
1. SALE OF ASSETS. In accordance with and subject to the terms and
conditions set forth in the Purchase Agreement, for good and valuable
consideration, the receipt of which is hereby acknowledged, Seller does hereby
sell, convey, assign, transfer and deliver (collectively, "sell") to Purchaser
all of Seller's right, title and interest in and to the Acquired Assets.
2. NON-CONTRAVENTION. To the extent that any Acquired Assets may not be
sold to Purchaser without the consent of a third party, this Xxxx of Sale shall
not constitute a sale or attempted sale thereof. Such sale shall occur
immediately after receipt of the applicable consent.
3. EFFECT OF SALE. Nothing in this Xxxx of Sale shall, or shall be
deemed to, modify or otherwise affect any provisions of the Purchase Agreement
or affect the rights of the parties under the Purchase Agreement. In the event
of any conflict between the provisions hereof and the provisions of the Purchase
Agreement, the provisions of the Purchase Agreement shall govern and control.
4. EXECUTION IN COUNTERPARTS; FACSIMILE DELIVERY. For the convenience
of the parties, this Xxxx of Sale may be executed in one or more counterparts
and delivered by facsimile, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
5. AMENDMENT; WAIVER. Any term or provision of this Xxxx of Sale may be
amended only by a writing signed by Seller and Purchaser. The observance of any
term or provision of this Xxxx of Sale may be waived (either generally or in a
particular instance and either retroactively or prospectively) only by a writing
signed by the party to be bound by such waiver. No waiver by a party of any
breach of this Xxxx of Sale will be deemed to constitute a waiver of any other
breach or any succeeding breach.
6. GOVERNING LAW. This Xxxx of Sale shall be governed by and construed
in accordance with the laws of the State of California applicable to contracts
entered into and wholly to be performed in the State of California by California
residents.
24
IN WITNESS WHEREOF, Seller and Purchaser have caused this Xxxx of Sale
to be executed on the date first written above.
XXXXXXXXX TECHNOLOGIES USA, INC.
By: ____________________________
Its
NOVELLUS SYSTEMS, INC.
By: ________________________
Its
25
EXHIBIT H
ASSIGNMENT OF CONTRACT
THIS ASSIGNMENT OF CONTRACT (this "Assignment") is made and entered
into as of July____, 1999, by Xxxxxxxxx Technologies USA, Inc., a Delaware
corporation ("Assignor"), and Novellus Systems, Inc., a California corporation
("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor and Assignee are parties to that certain Agreement
for the Sale and Purchase of Assets and the Assumption of Contract Obligations
dated as of July _____, 1999 (the "Agreement") pursuant to which Assignor has
agreed to sell certain of Assignor's assets to Assignee. Capitalized terms used
but not otherwise defined herein shall have the respective meanings assigned
thereto in the Agreement; and
WHEREAS, Assignor has agreed to execute and deliver this Assignment
pursuant to the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor hereby sells, grants,
conveys, transfers, assigns and delivers to Assignee, and Assignee accepts from
Assignor the interests, rights and benefits accruing to the Seller under the
Intel Purchase Order, attached hereto as Exhibit A, other than the obligations
and liabilities related to IRSET DUV module which shall be retained by Assignor.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Agreement
as of the day and year first above written.
XXXXXXXXX TECHNOLOGIES USA, INC.
By: ____________________________
Its
NOVELLUS SYSTEMS, INC.
By: ________________________
Its
