EXHIBIT 10.27
-------------
MORI(TM) SOURCE TECHNOLOGY
LICENSE AGREEMENT
This LICENSE AGREEMENT ("Agreement") is made and entered into as of
November 12, 1997 by and between Applied Materials, Inc., a Delaware corporation
("Applied") and Trikon Technologies, Inc., a California corporation formerly
known as "Plasma & Materials Technologies, Inc." ("Trikon"), with respect to the
following facts:
A. Trikon represents and warrants to Applied that its rights in and
to the Licensed Technology and the Trademarks (as defined below) are as set
forth in this Agreement; and
B. Trikon desires to grant to Applied, and Applied desires to acquire
from Trikon, subject to the terms and conditions of this Agreement, an
unrestricted license to manufacture, use and sell Applied Licensed Products (as
defined below), and to otherwise develop and use the Licensed Technology and to
use the Trademarks.
THE PARTIES AGREE AS FOLLOWS:
1. CERTAIN DEFINITIONS
As used in this Agreement:
1.1 "Affiliate" means with respect to any person: any company,
partnership, entity or other person that directly controls or is controlled by,
or is under common control with, the specified person; and "Affiliated Entity"
means any Affiliate other than an individual. For purposes of this Agreement,
Applied Komatsu Technology, Inc. shall be deemed an Affiliated Entity of
Applied.
1.2 "Applied Licensed Products" means products and software made by
or for Applied or any of its Affiliated Entities that in whole or in part
incorporate, use or are made using the Licensed Technology.
1.3 "Copyright(s)" means all copyright, unregistered design rights,
semiconductor topography and mask work interests, including, without limitation,
all rights of authorship, use, publication, reproduction, performance,
transformation, moral rights and ownership of copyrightable works, designs
(other than registered designs), semiconductor topography works and mask works,
and all rights to register and obtain renewals and extensions of registrations,
together with all other interests accruing by reason of international copyright,
semiconductor topography and mask work conventions.
1.4 "Improvements" means [ ]
1.5 "Licensed Technology" means: all (a) Patent Rights, (b)
Technical Information, (c) Improvements, and (d) Copyrights, in each case
relating to Plasma Sources, including without limitation, Trikon's entire right,
title and interest in the foregoing, and all hardware, software and processes,
conceived, developed, reduced to practice, discovered, owned, licensed and/or
acquired by Trikon or any of its Affiliates or agents prior to or as of the date
of this Agreement.
1.6 "Patents" means any and all issued patents, reissue or
reexamination patents, patents of importation, revivals of patents, revalidation
patents, utility models, certificates of invention, registrations of patents, or
extensions thereof, regardless of country or formal name.
1.7 "Patent Rights" means all United States and foreign utility and
design Patents, and published or unpublished regular patent and provisional
applications (including without limitation any and all applications of addition,
divisionals, continuations, continuations-in-part ("CIPs"), reexaminations,
substitutions, extensions, renewals, utility models, certificates of invention
or reissues thereof or therefor, invention disclosures and records of invention,
and any license to practice any of the foregoing, including without limitation
the Patents and patent applications listed on Exhibit 1.7.
1.8 "Plasma Sources" means [ ]
1.9 "Proprietary Rights" means Copyrights, Patent Rights, Technical
Information and trademarks (including, without limitation, the Trademarks).
1.10 "Technical Information" means any and all ideas, inventions,
disclosures, design rights, unpublished research and development information,
manufacturing and operating information, know-how, trade secrets and technical
data.
1.11 "Trademarks" means the trademarks listed on the attached Exhibit
1.11.
1.12 "Forcefill(TM) Agreements" means the respective Forcefill(TM)
License Agreements and Forcefill(TM) Technology Transfer Agreements between
Applied and Trikon Equipments Limited and Applied and Trikon Technologies
Limited, all of even date with this Agreement.
2. LICENSE GRANT
2.1 LICENSED TECHNOLOGY. Subject to the terms and conditions of this
Agreement, Trikon hereby grants to Applied and its Affiliated Entities (a) a
non-exclusive, worldwide, perpetual, fully paid, unrestricted, irrevocable
license (the "License") to use, develop, reproduce, publish, display, perform,
distribute, modify and transform the Licensed Technology and otherwise exercise
all rights therein, and to make, have made, use, dispose of, offer to dispose
of, sell, offer for sale, service, repair, reconstruct, have sold, import and
have imported Applied Licensed Products, together with (b) the rights to
sublicense others to use the Licensed Technology in connection with Applied
Licensed Products and the Purchased Units (as such term is defined in Section 4
below).
2.2 TRADEMARKS. Trikon hereby grants to Applied and its Affiliated
Entities a nonexclusive, worldwide, perpetual, fully paid, irrevocable license
to use the Trademarks, at Applied's election, in connection with sales of
Applied Licensed Products.
2.3 TERM. The term of this Agreement is from the date hereof to the
date of expiration of the last of the Patents to expire, or the date that the
last of the Technical Information enters the public domain, whichever is later.
3. COMPENSATION
3.1 CONSIDERATION. Applied shall pay Trikon non-refundable
consideration in the amount of U.S. $17,500,000 (the "License Fee") for all
licenses and rights granted hereunder and as full payment for the Purchased
Units, exclusive of all sales and use taxes (which shall be the responsibility
of
2
Applied). The License Fee shall be payable by wire transfer in immediately
available funds upon receipt by Applied of counterparts of this Agreement and
the Technology Transfer Agreement executed by Trikon.
3.2 CERTAIN DELIVERIES. Prior to or concurrently with the execution
of this Agreement, Trikon is delivering to Applied (a) evidence reasonably
satisfactory to Applied that Trikon has obtained (i) all appropriate consents
and waivers of lenders, other contract parties and governmental entities and
(ii) waivers of all contractual provisions that would restrict or prohibit
enforceability of this Agreement or the Technology Transfer Agreement, including
without limitation with clauses (i) and (ii) all consents and waivers listed on
Schedule 7.4 and (b) an opinion of counsel to the effect set forth in Exhibit
3.2 and in a form acceptable to Applied in its sole discretion.
4. PURCHASED UNITS
Applied shall purchase four Trikon MORI(TM) sources (the "Purchased
Units") as further identified in an Applied purchase order substantially in the
form attached hereto as Exhibit 4 (the "Purchase Order"), subject to the
delivery and other terms and conditions specified in the Purchase Order.
5. TECHNOLOGY TRANSFER AGREEMENT
Concurrently with their entering into this Agreement, the parties
hereto will enter into a MORI(TM) Source Technology Transfer Agreement in the
form attached hereto as Exhibit 5 (the "Technology Transfer Agreement"), and for
the separate consideration stated therein, Trikon will effect transfer to
Applied of Technical Information included in the Licensed Technology on the
terms and conditions stated therein.
6. THIRD PARTY CLAIMS
6.1 INDEMNITY. Trikon agrees to indemnify, defend and hold Applied
and its Affiliates harmless from and against any and all liabilities, losses,
costs, fines, demands, actions, claims, suits, proceedings, investigations,
damages, judgments and settlements including without limitation reasonable
attorneys' fees, resulting from or arising out of: (a) any alleged, threatened
or actual infringement, misappropriation, or violation of any proprietary rights
of a third party in connection with the exercise by Applied and/or its
Affiliates of its rights hereunder, or (b) breach by Trikon of any of its
obligations, covenants, representations or warranties (collectively, "Claims").
Notwithstanding the above, Trikon shall have no liability for any claim of
infringement, misappropriation or violation of any proprietary right of a third
party based on modification of the Licensed Technology by Applied, if the
infringement would have been avoided without such modification.
6.2 TRIKON'S OBLIGATIONS. Trikon shall have control of the defense,
litigation and, subject to the conditions set forth below, settlement of any
Claim. Applied shall have the right (subject to the conditions set forth
below), but not the obligation, to select counsel of its choice, at its expense,
to participate in the defense. Trikon shall not accept a settlement of any
Claim without the prior written consent of Applied, which consent shall not be
unreasonably withheld. In the event that any claim of infringement,
misappropriation or violation of any proprietary rights of a third party is
substantiated, or in Trikon's judgment is likely to be substantiated, Trikon
shall have the right, in its sole discretion and at its own expense, to either:
(a) procure for Applied such fully paid rights as are coextensive with the
rights granted Applied hereunder; or (b) replace or modify the Licensed
Technology in a manner
3
reasonably satisfactory to Applied to make it non-infringing without materially
impairing performance of the Licensed Technology.
6.3 APPLIED COOPERATION. In the event any third party Claim is made
against Applied or its Affiliates within the scope of the indemnity set forth in
Section 6.1, Applied shall (a) provide prompt written notice of such third party
Claim to Trikon, (b) provide Trikon with such assistance as Trikon may
reasonably request in connection with the defense and/or settlement of such
third-party claim, provided that all costs and expenses incurred by either party
shall be borne by Trikon, and (c) promptly comply with all terms of any
resolution or settlement of such third-party Claim at Trikon's expense.
7. TRIKON REPRESENTATIONS AND WARRANTIES
Trikon represents and warrants to Applied and its Affiliates as follows:
7.1 ORGANIZATION. Trikon: (a) is a corporation duly organized,
validly existing and in good standing under the laws of the state of California;
and (b) has all necessary corporate power to own, license and transfer the
Purchased Units and the Licensed Technology without restriction or encumbrance,
to carry on its business as now being conducted, and to enter into and deliver
this Agreement, the Technology Transfer Agreement and the Purchase Order and to
consummate the transactions contemplated by each of them.
7.2 AUTHORITY. The execution and delivery of this Agreement, the
Technology Transfer Agreement and the Purchase Order, and the performance of
each of them by Trikon, have been duly authorized by all necessary corporate
action on the part of Trikon. Each of this Agreement, the Technology Transfer
Agreement and the Purchase Order constitutes a legal, valid and binding
obligation of Trikon, enforceable against Trikon in accordance with its terms,
subject as to enforcement: (a) to bankruptcy, insolvency, reorganization,
arrangement, moratorium and other laws of general applicability relating to or
affecting creditors' rights; and (b) to general principles of equity, whether
such enforcement is considered in a proceeding in equity or at law.
7.3 NO CONFLICTS. Neither the execution and delivery of this
Agreement, the Technology Transfer Agreement or the Purchase Order, nor the
performance of any of them by Trikon will: (a) conflict with or result in any
breach or violation of the terms of any decree, judgment, order, law or
regulation of any court or other governmental body now in effect applicable to
Trikon, any of its Affiliates, the Licensed Technology, the Purchased Units, or
the Trademarks; (b) conflict with, or result in, with or without the passage of
time or the giving of notice, any breach of any of the terms, conditions and
provisions of, or constitute a default under, or result in the creation of any
lien, charge, easement, security interest, mortgage, conditional sale contract,
equity, right of way, covenant, restriction, title defect, objection, claim or
other encumbrances upon any of the Licensed Technology, Purchased Units or
Trademarks pursuant to, any indenture, mortgage, lease, agreement or other
instrument to which Trikon or any of its Affiliates is a party or by which
Trikon, any of its Affiliates, the Licensed Technology, Purchased Units or
Trademarks are bound; (c) permit the acceleration of the maturity of any
indebtedness of Trikon or of any other person secured by the Licensed
Technology, Purchased Units or Trademarks; or (d) violate or conflict with any
provision of Trikon's charter documents.
7.4 CONSENTS. Except as set forth on Schedule 7.4, no consent,
approval or waiver from any third party, and no consent, approval or
authorization of, or declaration, filing or registration with, any government or
regulatory authority, is required to be obtained or made by Trikon or any of its
4
Affiliates in order to permit the execution and delivery of this Agreement, the
Technology Transfer Agreement, and the Purchase Order by Trikon, and the
consummation of the transactions contemplated by each of them. All consents,
waivers and approvals identified on Schedule 7.4 have been obtained in writing
and copies thereof have been provided to Applied.
7.5 LICENSED TECHNOLOGY. Trikon represents and warrants that: (a)
the Licensed Technology includes all of its technology and Proprietary Rights
relating to Plasma Sources, and no technology or Proprietary Rights relating to
Plasma Sources are owned or otherwise held by any Affiliate of Trikon; (b)
except as set forth on Schedule 7.5 as to Improvements only, the Licensed
Technology does not infringe upon or violate any Proprietary Rights of any other
person; (c) except as set forth on Schedule 7.5 as to Improvements only, no
claim has been asserted or threatened by any other person that the use of the
Licensed Technology constitutes an infringement or misappropriation of any
Proprietary Rights of another or constitutes unfair competition; (d) Trikon is
the true, lawful and sole legal and beneficial owner of the Licensed Technology,
free and clear of any claims, liens or encumbrances and Trikon's ownership is
more than a shop right; (e) except as set forth on Schedule 7.5 as to
Improvements only, all Patents, Copyrights and Trademarks included in the
Licensed Technology are valid and in full force and effect, and all maintenance
and annuity fees have been fully paid and all fees paid during prosecution and
after issuance of the Patents have been paid in the correct entity status
amounts; (f) the License granted by Trikon does not and will not conflict with
any rights granted to other persons or violate any previous agreement between
Trikon or any of its Affiliates and any other person; (g) except as set forth on
Schedule 7.5 with respect to prosecution of Improvements only, no fraud or
misrepresentation has been made during the prosecution of the Patent Rights,
Copyrights or Trademarks, or has been included in the documentation for or other
disclosure of the Licensed Technology; and (h) Trikon has or can obtain all
consents to exclusion of all inventors deleted from or not included in all
applications of the Patent Rights.
7.6 TRADEMARKS. Trikon represents and warrants that it is the true,
lawful and sole owner of the Trademarks, and has the exclusive right to use such
Trademarks, and has the right to permit Applied to use such Trademarks as
contemplated by this Agreement, in each case, free of infringement of or unfair
competition with any trademark or service xxxx rights of any other person, and
free of any other claims, liens or encumbrances.
7.7 WARRANTY. Except as set forth in this Section 7, Trikon makes no
warranties, express or implied, regarding the Licensed Technology, the
Proprietary Rights, the Purchased Units or the Trademarks, their performance, or
the results which can be achieved with them. EXCEPT AS SET FORTH IN THIS
SECTION 7, THE LICENSED TECHNOLOGY, THE PROPRIETARY RIGHTS, THE PURCHASED UNITS
AND THE TRADEMARKS ARE LICENSED OR PROVIDED TO APPLIED, AS THE CASE MAY BE, ON
AN "AS IS" BASIS AND TRIKON HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
8. APPLIED REPRESENTATIONS AND WARRANTIES
Applied represents and warrants to Trikon and its Affiliates as follows:
8.1 ORGANIZATION. Applied: (a) is a corporation duly organized,
validly existing and in good standing under the laws of the state of Delaware;
and (b) has all necessary corporate power to enter into and deliver this
Agreement, the Technology Transfer Agreement and the Purchase Order, and to
consummate the transactions contemplated by each of them.
5
8.2 AUTHORITY. The execution and delivery of this Agreement, the
Technology Transfer Agreement and the Purchase Order, and the performance by
Applied of each of them, have been duly authorized by all necessary corporate
action on the part of Applied. Each of this Agreement, the Technology Transfer
Agreement and the Purchase Order constitutes a legal, valid and binding
obligation of Applied, enforceable against Applied in accordance with its terms,
subject as to enforcement: (a) to bankruptcy, insolvency, reorganization,
arrangement, moratorium and other laws of general applicability relating to or
affecting creditors' rights; and (b) to general principles of equity, whether
such enforcement is considered in a proceeding in equity or at law.
8.3 NO CONFLICTS. Neither the execution and delivery of this
Agreement, the Technology Transfer Agreement or the Purchase Order, nor
performance of any of them by Applied, will: (a) conflict with or result in any
breach or violation of the terms of any decree, judgment, order, law or
regulation of any court or other governmental body now in effect applicable to
Applied or any of its Affiliates; or (b) violate or conflict with any provision
of Applied's charter documents or of any agreement or instrument to which
Applied or any of its Affiliates is a party.
8.4 CONSENTS. No consent, approval or waiver from any third party,
and no consent, approval or authorization of, or declaration, filing or
registration with, any government or regulatory authority, is required to be
made or obtained by Applied or any of its Affiliates in order to permit the
execution, delivery or performance of this Agreement by Applied, or the
consummation of the transactions contemplated by this Agreement.
9. COVENANTS OF TRIKON
Trikon covenants and agrees with Applied as follows:
9.1 NOTICE OF INFRINGEMENT. If, during the term of this Agreement,
Trikon receives written notice expressly stating that a third party (a
"Potential Infringer") has directly or contributorily infringed, has induced
another to infringe, or has engaged in unfair competition with respect to, any
of the Licensed Technology, Trikon shall promptly identify the affected
aspect(s) or item(s) of the Licensed Technology and the Potential Infringer in a
written notice to Applied.
9.2 PATENT PROSECUTION AND MAINTENANCE FEES. To the extent it has
not done so, Trikon through patent attorneys of its choosing and at its own
expense and cost shall cause to be filed and/or prosecuted the patent
applications listed in Exhibit 1.7, and all patent application(s), if any,
relating to Improvements included in the Licensed Technology. Trikon agrees to
exercise all commercially reasonable efforts to cause all patent applications to
be prosecuted in such manner that the best possible patent protection may be
obtained thereon. Trikon shall have no liability to Applied respecting the
results of such prosecution. Trikon agrees, from time to time and on a
reasonable and prompt basis, to inform Applied about the status of the
prosecution of said patent applications. During the life of any patents, Trikon
shall timely pay all applicable fees, including but not limited to issue and
maintenance fees related to Patent Rights included in the Licensed Technology at
the appropriate entity status rates.
9.3 PROTECTION OF TRADEMARKS. Trikon shall take all reasonable steps
to maintain, and shall take no steps that derogate from, the force or validity
of, the Trademarks; shall pay such fees in a timely manner as are necessary to
maintain the registrations of the Trademarks in all countries of such
registration; and shall have the exclusive right to institute and prosecute in
its sole discretion with all reasonable effort actions against any suspected
infringers or misusers of the Trademarks.
6
9.4 REGISTERED USER AGREEMENTS. Trikon, at its sole election, may
undertake recordation of a registered user agreement or trademark license with
respect to Applied in any country where Applied uses the Trademarks and where
such recordation is required or permitted.
10. COVENANTS OF APPLIED
Applied covenants and agrees with Trikon as follows:
10.1 TECHNOLOGY. Applied understands and agrees that, with the
exception of the rights expressly licensed or otherwise granted under this
Agreement, Applied shall not acquire any right, title, or interest in the
Licensed Technology or the Trademarks, which right, title and interest is and
shall remain with Trikon.
10.2 TRADEMARKS. Applied is familiar with the quality standards of
Trikon. In the event Applied elects to use the Trademarks, Applied shall use
the Trademarks only in accordance with those same reasonable standards of
quality currently used by Applied, which standards shall at least be equal to,
but which shall not be required to exceed, the standards of quality currently
used by Trikon. Trikon shall have the right once per year, upon reasonable
advance written notice (at least 10 business days in advance), to receive from
Applied a reasonably representative selection of specimens of Applied's use of
the Trademarks, as may be reasonably necessary in order to confirm that such
quality control standards are being observed. Applied hereby consents to being
named as a registered user of the Trademarks where the recordation of a
registered user agreement or trademark license is required or permitted, and
Applied agrees to execute any documents reasonably necessary or desirable to
enable and assist Trikon in the exclusive registration and protection of the
Trademarks, all at no expense to Applied.
10.3 PROPRIETARY NOTICES. Applied agrees to use reasonable efforts
to include reproductions of the patent and trademark notices of Trikon as Trikon
may reasonably designate on each Applied Licensed Product and all packaging and
documentation used for or with its distribution. Applied shall not remove,
efface or obscure any patent or trademark notices from any Trikon materials
provided hereunder.
10.4 NOTICE OF INFRINGEMENT. If, during the term of this Agreement,
Applied receives written notice expressly stating that a Potential Infringer has
directly or contributorily infringed, has induced another to infringe, or has
engaged in unfair competition with respect to, any of the Licensed Technology,
Applied shall promptly identify the affected aspect(s) or item(s) of the
Licensed Technology and the Potential Infringer in a written notice to Trikon.
11. LIMITATIONS OF LIABILITY; CERTAIN DISCLAIMERS
11.1 LIMITATIONS OF LIABILITY. THE AGGREGATE LIABILITY OF TRIKON AND
ITS AFFILIATES ARISING OUT OF THIS AGREEMENT, THE TECHNOLOGY TRANSFER AGREEMENT
AND THE FORCEFILL(TM) AGREEMENTS SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID TO
TRIKON AND ITS AFFILIATES BY APPLIED PURSUANT TO THIS AGREEMENT, THE TECHNOLOGY
TRANSFER AGREEMENT AND THE FORCEFILL(TM) AGREEMENTS. TRIKON SHALL NOT HAVE ANY
LIABILITY TO APPLIED FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL
DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS
AGREEMENT AND THE TECHNOLOGY TRANSFER AGREEMENT, INCLUDING BUT NOT LIMITED TO
LOSS OF ANTICIPATED PROFITS, EVEN IF TRIKON HAS BEEN ADVISED OF THE POSSIBILITY
OF
7
SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THESE LIMITATIONS OF LIABILITY SHALL
NOT APPLY IN THE EVENT OF FRAUD.
11.2 CERTAIN DISCLAIMERS. Nothing in this Agreement shall (a)
obligate Applied to use the Licensed Technology or Trademarks, or (b) to
restrict or prohibit Applied from developing, making, using, marketing or
otherwise distributing or promoting products and/or processes using, embodying,
or competing with the Licensed Technology. No rights are granted to Trikon by
this Agreement in any Applied technology or in any Applied tangible, intangible
or intellectual property, whether now in existence or hereafter conceived,
developed, reduced to practice, discovered, owned, licensed, leased, sold and/or
acquired by or for Applied relative to any products or property of Applied,
regardless of nature or technical subject.
12. BANKRUPTCY
All rights and licenses granted under or pursuant to this Agreement by
each party are, and shall otherwise be deemed to be, for purposes of Section
365(n) of Title 11, U.S. Code (the "Bankruptcy Code"), licenses of rights to
"intellectual property" as defined under Section 101(35A) of the Bankruptcy
Code. The parties agree that Applied shall retain and may fully exercise all of
its rights and elections under the Bankruptcy Code. Trikon agrees, during the
term of this Agreement, to create and maintain current copies or, if not
amenable to copying, detailed descriptions or other appropriate embodiments, of
all such intellectual property, all to ISO 9000 et seq. and other applicable
standards. Trikon further agrees that in the event of the commencement of a
bankruptcy proceeding by or against it under the Bankruptcy Code, Applied shall
be entitled to a complete duplicate of or complete non-exclusive access to, as
appropriate solely for the purposes contemplated by this Agreement and the
Technology Transfer Agreement, any such intellectual property and all
embodiments of such intellectual property, and same, if not already in its
possession, shall be promptly delivered to Applied or made available to Applied
for reproduction (i) upon such commencement of a bankruptcy proceeding upon
written request therefor by Applied, unless Trikon elects to continue to perform
all of its obligations under this Agreement or (ii) if not delivered under (i)
above, upon the rejection of this Agreement by or on behalf of Trikon upon
written request therefor by Applied.
13. RELEASE
Each party, for itself and for its Affiliates, representatives,
successors and assigns, hereby releases the other party and its Affiliates,
representatives, successors and assigns, from any and all claims, actions and
liabilities of every kind and nature arising from matters, acts, omissions or
dealings prior to the date of this Agreement, whether or not asserted, and
whether known or unknown. Notwithstanding the foregoing, this release does not
extend to claims of infringement of (a) the Patents listed in Exhibit 13, part
1, relating to Flowfill(TM) technology, or (b) Patents that issue (if, as and
when any such shall issue) under the patent applications relating to
Flowfill(TM) technology listed on Exhibit 13, part 2, provided that such
applications are pending as of the date hereof and have been previously
disclosed to Applied. Except to the extent expressly set forth above, this
release is a full and final release covering all known and unknown, suspected
and unsuspected, claims, actions and liabilities. Each party expressly waives
any and all rights or benefits which it may have under Section 1542 of the
California Civil Code and any similar law of any other jurisdiction. Said
section provides as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES
NOT KNOW OR SUSPECT TO EXIST IN HIS
8
FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST
HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
Each party represents and warrants that it has been advised by
competent counsel of its own choosing as to the meaning and effect of the
release granted in this Section 13.
14. NO PUBLICITY
Except as required by court order, Trikon agrees not to disclose the
existence or terms of this Agreement without the prior written consent of
Applied, which consent shall not be unreasonably withheld. Applied agrees to
review any disclosure proposed by Trikon on a prompt basis, provided Applied is
given at least two business days' advance written notice.
15. MISCELLANEOUS
15.1 GOVERNING LAW. This Agreement shall be governed by the laws of
the State of California without reference to principles of conflicts of laws and
without regard to the UN Convention on the International Sale of Goods.
15.2 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
15.3 HEADINGS. The headings of the Sections of this Agreement are
for convenience and shall not by themselves determine the interpretation of this
Agreement.
15.4 NOTICES. All notices and other communications hereunder shall
be in writing and shall be delivered personally by overnight courier or similar
means or sent by facsimile with written confirmation of receipt, to the parties
at the addresses specified below (or at such other address for a party as shall
be specified by like notice). Any such notice shall be effective upon receipt,
if personally delivered, or on the next business day following transmittal if
sent by facsimile. Notices shall be delivered as follows:
To Applied: Applied Materials, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Vice President, Legal Affairs
and Intellectual Property
with a copy to: Applied Materials, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxx
Director, New
Business Development
9
To Trikon: Trikon Technologies, Inc.
Xxxxxxxx Xxx
Xxxxxxx, Xxxxx XX0 0XX
Attention: Xxxxx Xxxxxxx
with a copy to: Xxxxxxx, Phleger & Xxxxxxxx LLP
Xxx Xxxxxx
Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
15.5 AMENDMENT OF AGREEMENT. Any provision of this Agreement may be
amended only by a written instrument signed by Trikon and Applied.
15.6 SEVERABILITY. In case any one or more of the provisions
contained in this Agreement should be finally determined to be invalid, illegal
or unenforceable in any respect against either party hereto, it shall be
adjusted if possible to effect the intent of the parties. In any event, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby, and such
invalidity, illegality or unenforceability shall only apply as to such party in
the specific jurisdiction where such final determination shall have been made.
15.7 ENTIRE AGREEMENT. This Agreement, together with its Exhibits,
constitute the entire agreement between Trikon and Applied regarding the subject
matter hereof, and supersedes any and all prior negotiations, correspondence,
understandings and agreements regarding such subject matter.
15.8 IMPORT/EXPORT. Each party shall comply with all applicable
import and export control laws and regulations.
15.9 TAXES. Applied will not withhold taxes for the transactions
contemplated hereunder except as required by law.
15.10 RULES OF CONSTRUCTION. Each party to this Agreement has been
represented by counsel during the preparation and execution of this Agreement,
and therefore waives any rule of construction that would construe ambiguities
against the party drafting the agreement.
15.11 FURTHER ASSURANCES. Each party agrees to cooperate with the
other in executing, delivering, and filing such further documentation and taking
any such other further actions as may be necessary or appropriate to effectuate
the transfer of rights granted in this Agreement, or to evidence the
satisfaction or accuracy of any condition, representation or warranty of this
Agreement.
15.12 INDEPENDENT CONTRACTORS. The parties to this Agreement are and
shall remain independent contractors, and nothing herein shall be construed to
create a partnership or joint venture between Trikon and Applied. Each party
shall be responsible for wages, hours, and condition of employment of its
personnel during the term of and under this Agreement. Nothing herein shall be
construed as implying that employees of either party are employees of the other
party.
IN WITNESS WHEREOF, the parties, by their duly authorized officers,
have executed this Agreement as of the date first above written.
10
Applied Materials, Inc. Trikon Technologies, Inc.
By:/s/Xxxxxx Xxxxxxx By:/s/Xxxxxx Xxxxxxxx
-------------------------------- ---------------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxxx
------------------------------ -------------------------------
Title: Corporate Vice President Title: Chief Executive Officer
----------------------------- ------------------------------
11
