EXHIBIT 10.33
AGREEMENT FOR TERMINATION OF LITIGATION
AND NULLITY PROCEEDINGS
THIS AGREEMENT is entered into this 27TH day of June, 2000 (the
"Effective Date") by and between CFM Technologies, Inc., having a place of
business at 000 Xxxxxxxx Xxxx., Xxxxx, XX 00000 ("CFM"), CFMT, Inc., having a
place of business at 0000 Xxxxx Xxxx, X.X. Xxx 0000, Xxxxxxxxxx, XX 00000,
hereinafter collectively referred to as "CFM," and STEAG Electronic Systems AG,
a German company having a place of business at Xxxxxxxxxxxxxxx Xxxxxxx 0-0,
00000 Xxxxx, Xxxxxxx, and STEAG Electronic Systems, Inc. (formerly known as
STEAG Microtech, Inc.), a Delaware corporation having a place of business at
0000 Xxxxx Xxxx Xxxxx, Xxxxxx, Xxxxx, 00000, hereinafter collectively referred
to as "STEAG."
WITNESSETH
WHEREAS, CFM and STEAG are the parties in litigation pending on a second
appeal, which has been briefed but not orally argued, in the U.S. Court of
Appeals for the Federal Circuit captioned CFMT, INC. and CFM TECHNOLOGIES, INC.,
Plaintiffs-Appellees v. STEAG MICROTECH, INC., Defendant-Appellant, Appeal No.
00-1086;
WHEREAS, the pending appeal and an earlier appeal were from Judgments of
the U.S. District Court for the District of Delaware in an action captioned
CFMT, INC. and CFM TECHNOLOGIES, INC., Plaintiffs v. STEAG MICROTECH, INC.,
Defendant, C.A. No. 95-442 (RRM);
WHEREAS, STEAG and/or its affiliates have filed nullity actions against CFM
Patents in Germany, France, Ireland, Holland, and Japan;
WHEREAS, CFM and STEAG are parties to an Interim Patent License Agreement
dated June 27, 2000, in which CFM granted certain rights under CFM patents to
STEAG;
WHEREAS, STEAG and Xxxxxxx Technology Inc., having a place of business at
0000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, XX 00000, hereinafter referred to as
"Mattson," are entering into a Strategic Business Combination Agreement,
pursuant to which, among other things, Mattson will acquire certain subsidiaries
of STEAG, including subsidiaries engaged in the semiconductor wet processing
business (the "Combination Agreement");
WHEREAS, CFM and Mattson are entering into an Agreement and Plan of Merger,
intending to result in CFM becoming a wholly-owned subsidiary of Mattson (the
"Merger Agreement" and, together with the Combination Agreement, the
"Transaction Agreements"); and
WHEREAS, the parties desire to terminate the above identified Federal
litigation and nullity actions on the following terms:
NOW, THEREFORE, CFM and STEAG agree as follows:
1. CFM and STEAG shall within three (3) days of the execution of
this Agreement cause the above entitled pending second appeal to be
dismissed by directing their counsel of record to execute and file a
joint motion for dismissal in the form attached as Exhibit A hereto.
CFM and STEAG shall cooperate as necessary under the Rules of the U.S.
Court of Appeals for the Federal Circuit to achieve this dismissal.
2. STEAG consents to entry of final judgment of the District
Court that CFM's United States Patent 4,911,761 is valid, enforceable,
and infringed by STEAG.
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3. In consideration of the mutual promises, representations and
warranties contained in the Interim Patent License Agreement and the
Transaction Agreements, CFM waives and releases STEAG from all damages
awarded in the United States District Court for the District of
Delaware, including all rights to an accounting or award of damages
for infringing sales after September 30, 1997, pre-judgment and
post-judgment interest, attorneys' fees, costs and enhanced damages.
4. Each party is responsible for its own attorneys' fees and
costs in the District Court and in the U.S. Court of Appeals for the
Federal Circuit.
5. The injunction entered against STEAG on June 18, 1998 shall
remain in force, subject to license rights or ownership rights
conferred by the Interim Patent License Agreement and the Transaction
Agreements.
6. When the said pending second appeal has been dismissed,
remanded by the U.S. Court of Appeals for the Federal Circuit and
received by the U.S. District Court for the District of Delaware, the
parties shall within three (3) days from the date of notice that the
case has been returned to the District Court submit a proposed Consent
Judgment to the District Court, in the form attached as Exhibit B
hereto.
7. STEAG shall submit within thirty (30) days of the execution of
this Agreement documents sufficient to cause all nullity actions filed
by STEAG and/or its affiliates against CFM Patents, including those in
Germany, France, Ireland, Holland, and Japan, to be dismissed or
withdrawn so as to maintain the CFM patents in force in each country,
provided, that, in any country where STEAG would not have the legal
right to cause the dismissal or withdrawal of any such nullity action,
STEAG shall only be required to use its best efforts to cause such
nullity action to be dismissed or withdrawn.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year above first written.
CFM TECHNOLOGIES, INC. STEAG ELECTRONIC SYSTEMS AG
/s/ Xxxxx X. Xxxxxxx /s/ Xx. Xxxx Xxxxxx
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President & CEO CFO
CFMT, INC.
/s/ Xxxxx X. Xxxxxxx /s/ Xx. Xxxxx Xxxxxxxxxx
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Secretary General Counsel
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