EXHIBIT 10.29
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FORCEFILL/TM/ 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 Limited, a company incorporated under the
laws of England and Wales under registered number 1373344 and formerly known as
"Electrotech Limited" ("Technologies Limited"), with respect to the following
facts:
A. Technologies Limited 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. Technologies Limited desires to grant to Applied, and Applied
desires to acquire from Technologies Limited, 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 "Forcefill Technology" means [ ]
1.5 "Improvements" means [ ]
1.6 "Licensed Technology" means: all (a) Patent Rights, (b)
Technical Information, (c) Improvements, and (d) Copyrights, in each case
relating to Forcefill Technology, including without limitation, Technologies
Limited'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 Technologies Limited or any of its Affiliates
or agents prior to or as of the date of this Agreement.
1.7 "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.
1.8 "Patent Rights" means all United Kingdom, United States and other
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 1.8.
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 "Related Agreements" means the MORI/TM/ Source License Agreement
and MORI/TM/ Source Technology Transfer Agreement between Applied and Trikon
Technologies, Inc. and the Forcefill/TM/ License Agreement and Forcefill/TM/
Technology Transfer Agreement between Applied and Trikon Equipments Limited, all
of even date with this Agreement.
2. LICENSE GRANT
2.1 LICENSED TECHNOLOGY. Subject to the terms and conditions of this
Agreement, Technologies Limited 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. Technologies Limited 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.
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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 Technologies Limited non-
refundable consideration in the amount of U.S. $4,250,000 (the "License Fee")
for all licenses and rights granted hereunder. 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
Technologies Limited.
3.2 CERTAIN DELIVERIES. Prior to or concurrently with the execution
of this Agreement, Technologies Limited is delivering to Applied (a) evidence
reasonably satisfactory to Applied that Technologies Limited 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 6.4 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. TECHNOLOGY TRANSFER AGREEMENT
Concurrently with their entering into this Agreement, the parties
hereto will enter into a Forcefill Technology Transfer Agreement in the form
attached hereto as Exhibit 4 (the "Technology Transfer Agreement"), and for the
separate consideration stated therein, Technologies Limited will effect the
transfer to Applied of Technical Information included in the Licensed Technology
on the terms and conditions stated therein.
5. THIRD PARTY CLAIMS
5.1 INDEMNITY. Technologies Limited 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 Technologies
Limited of any of its obligations, covenants, representations or warranties
(collectively, "Claims"). Notwithstanding the above, Technologies Limited 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.
5.2 TECHNOLOGIES LIMITED'S OBLIGATIONS. Technologies Limited 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. Technologies Limited
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 Technologies Limited's judgment
is likely to be
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substantiated, Technologies Limited 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 reasonably satisfactory to
Applied to make it non-infringing without materially impairing performance of
the Licensed Technology.
5.3 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 5.1, Applied shall (a) provide prompt written notice of such third party
Claim to Technologies Limited, (b) provide Technologies Limited with such
assistance as Technologies Limited 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 Technologies Limited, and
(c) promptly comply with all terms of any resolution or settlement of such
third-party Claim at Technologies Limited's expense.
6. TECHNOLOGIES LIMITED REPRESENTATIONS AND WARRANTIES
Technologies Limited represents and warrants to Applied and its
Affiliates as follows:
6.1 ORGANIZATION. Technologies Limited: (a) is a corporation duly
organized, validly existing and in good standing under the laws of England and
Wales; and (b) has all necessary corporate power to own, license and transfer
the Licensed Technology without restriction or encumbrance, to carry on its
business as now being conducted, and to enter into and deliver this Agreement
and the Technology Transfer Agreement and to consummate the transactions
contemplated by each of them.
6.2 AUTHORITY. The execution and delivery of this Agreement and the
Technology Transfer Agreement, and the performance of each of them by
Technologies Limited, have been duly authorized by all necessary corporate
action on the part of Technologies Limited. Each of this Agreement and the
Technology Transfer Agreement constitutes a legal, valid and binding obligation
of Technologies Limited, enforceable against Technologies Limited 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.
6.3 NO CONFLICTS. Neither the execution and delivery of this
Agreement or the Technology Transfer Agreement, nor the performance of either of
them by Technologies Limited, 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 Technologies
Limited, any of its Affiliates, the Licensed Technology 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 or the Trademarks pursuant to,
any indenture, mortgage, lease, agreement or other instrument to which
Technologies Limited or any of its Affiliates is a party or by which
Technologies Limited, any of its Affiliates, the Licensed Technology or the
Trademarks are bound; (c) permit the acceleration of the maturity of any
indebtedness of Technologies Limited or of any other person secured by the
Licensed Technology or the Trademarks; or (d) violate or conflict with any
provision of Technologies Limited's charter documents.
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6.4 CONSENTS. Except as set forth on Schedule 6.4, 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 Technologies Limited
or any of its Affiliates in order to permit the execution and delivery of this
Agreement and the Technology Transfer Agreement by Technologies Limited and the
consummation of the transactions contemplated by each of them. All consents,
waivers and approvals identified on Schedule 6.4 have been obtained in writing
and copies thereof have been provided to Applied.
6.5 LICENSED TECHNOLOGY. Technologies Limited represents and
warrants that: (a) the Licensed Technology includes all of its technology and
Proprietary Rights relating to Forcefill Technology, and no technology or
Proprietary Rights relating to Forcefill Technology are owned or otherwise held
by any Affiliate of Technologies Limited other than Trikon Equipments Limited;
(b) except as set forth on Schedule 6.5, the Licensed Technology does not
infringe upon or violate any Proprietary Rights of any other person; (c) except
as set forth on Schedule 6.5, 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) Technologies Limited is the true, lawful and sole legal and
beneficial owner of the Licensed Technology, free and clear of any claims, liens
or encumbrances and Technologies Limited's ownership is more than a shop right;
(e) except as set forth on Schedule 6.5 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
Technologies Limited does not and will not conflict with any rights granted to
other persons or violate any previous agreement between Technologies Limited or
any of its Affiliates and any other person; (g) except as set forth on Schedule
6.5 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) Technologies Limited has or can
obtain all consents to exclusion of all inventors deleted from or not included
in all applications of the Patent Rights.
6.6 TRADEMARKS. Technologies Limited 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.
6.7 WARRANTY. Except as set forth in this Section 6, Technologies
Limited 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 6, 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 LIMITED HEREBY DISCLAIMS ANY AND ALL
IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
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7. APPLIED REPRESENTATIONS AND WARRANTIES
Applied represents and warrants to Technologies Limited and its
Affiliates as follows:
7.1 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 and the Technology Transfer Agreement, and to consummate the
transactions contemplated by each of them.
7.2 AUTHORITY. The execution and delivery of this Agreement and the
Technology Transfer Agreement, 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 and the Technology Transfer Agreement
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.
7.3 NO CONFLICTS. Neither the execution and delivery of this
Agreement or the Technology Transfer Agreement, nor the performance of either 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.
7.4 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 and delivery of this Agreement and the Technology Transfer Agreement
by Applied, and the consummation of the transactions contemplated by each of
them.
8. COVENANTS OF TRIKON LIMITED
Technologies Limited covenants and agrees with Applied as follows:
8.1 NOTICE OF INFRINGEMENT. If, during the term of this Agreement,
Technologies Limited 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, Technologies Limited shall promptly identify
the affected aspect(s) or item(s) of the Licensed Technology and the Potential
Infringer in a written notice to Applied.
8.2 PATENT PROSECUTION AND MAINTENANCE FEES. To the extent it has
not done so, Technologies Limited 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. Technologies
Limited 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. Technologies Limited shall have no
liability to Applied respecting the results of such prosecution. Technologies
Limited agrees, from time to time and on a reasonable and prompt basis, to
inform Applied
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about the status of the prosecution of said patent applications. During the life
of any patents, Technologies Limited 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.
8.3 PROTECTION OF TRADEMARKS. Technologies Limited 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.
8.4 REGISTERED USER AGREEMENTS. Technologies Limited, 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.
9. COVENANTS OF APPLIED
Applied covenants and agrees with Technologies Limited as follows:
9.1 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 Technologies Limited.
9.2 TRADEMARKS. Applied is familiar with the quality standards of
Technologies Limited. 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 Technologies Limited. Technologies Limited 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 Technologies Limited in
the exclusive registration and protection of the Trademarks, all at no expense
to Applied.
9.3 PROPRIETARY NOTICES. Applied agrees to use reasonable efforts to
include reproductions of the patent and trademark notices of Technologies
Limited as Technologies Limited 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 Technologies Limited materials provided hereunder.
9.4 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
Technologies Limited.
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10. LIMITATIONS OF LIABILITY; CERTAIN DISCLAIMERS
10.1 LIMITATIONS OF LIABILITY. THE AGGREGATE LIABILITY OF TRIKON
LIMITED AND ITS AFFILIATES ARISING OUT OF THIS AGREEMENT, THE TECHNOLOGY
AGREEMENT AND THE RELATED AGREEMENTS SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID
TO TRIKON LIMITED AND ITS AFFILIATES BY APPLIED PURSUANT TO THIS AGREEMENT, THE
TECHNOLOGY TRANSFER AGREEMENT AND THE RELATED AGREEMENTS. TRIKON LIMITED 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 LIMITED HAS BEEN ADVISED
OF THE POSSIBILITY OF 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.
10.2 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
Technologies Limited 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.
11. 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 to the extent that the
Bankruptcy Code applies to Technologies Limited. Technologies Limited 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. Technologies Limited further agrees that in the event of the
commencement of a bankruptcy proceeding by or against it, Applied shall be
entitled to a complete non-exclusive duplicate of or complete 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 Technologies Limited 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 Technologies Limited upon written request therefor by Applied.
12. NO PUBLICITY
Except as required by court order, Technologies Limited agrees not to
disclose the existence or terms of this Agreement without the prior written
consent of Applied, which consent shall
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not be unreasonably withheld. Applied agrees to review any disclosure proposed
by Technologies Limited on a prompt basis, provided Applied is given at least
two business days' advance written notice.
13. MISCELLANEOUS
13.1 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.
13.2 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.
13.3 HEADINGS. The headings of the Sections of this Agreement are for
convenience and shall not by themselves determine the interpretation of this
Agreement.
13.4 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
To Technologies Limited: Trikon Technologies Limited
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.
13.5 AMENDMENT OF AGREEMENT. Any provision of this Agreement may be
amended only by a written instrument signed by Technologies Limited and Applied.
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13.6 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.
13.7 ENTIRE AGREEMENT. This Agreement, together with its Exhibits,
constitute the entire agreement between Technologies Limited and Applied
regarding the subject matter hereof, and supersedes any and all prior
negotiations, correspondence, understandings and agreements regarding such
subject matter.
13.8 IMPORT/EXPORT. Each party shall comply with all applicable import
and export control laws and regulations.
13.9 TAXES. Applied will not withhold taxes for the transactions
contemplated hereunder except as required by law.
13.10 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.
13.11 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.
13.12 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 Technologies Limited 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.
APPLIED MATERIALS, INC. TRIKON TECHNOLOGIES LIMITED
/s/ Xxxxxx Xxxxxxx /s/ Xxxxxx Xxxxxxxx
By: _____________________________ By: _______________________________
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxxx
Title: Corporate Vice President Title: Director
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