Exhibit 10.2
*** TEXT OMMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
PATENT LICENSE
AGREEMENT
THIS PATENT LICENSE AGREEMENT ("Agreement"), made as of this 14th
day of May, 2001 (the "Effective Date"), by and between Xxxxx X. Xxxxx with
residence at [...***...] and Xxxxxx X. Xxxxxxx with residence at [...***...]
(each referred to as an "Assignee," collectively referred to as the
"Assignees"), SCIENCE RESEARCH LABORATORY, INC., a Massachusetts corporation
with principal offices at 00 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
("SRL") and CYMER, INC., a Nevada corporation, with principal offices at
00000 Xxx Xxx Xxxxx Xxxxx, Xxx Xxxxx Xxxxxxxxxx 00000 ("Cymer").
WHEREAS, SRL has developed and is the original assignee of certain
patents and patent applications which have been assigned to the Assignees who
also hold the trade secrets, confidential information and know-how with
respect to (i) [...***...] power devices with specialized circuits useful in
powering certain lasers and [...***...] (defined below), and (ii) [...***...]
light sources useful in Lithography and Metrology (defined below); and
WHEREAS, SRL and its affiliate, Applied Pulsed Power Technologies,
Inc. ("APPT"), have granted certain rights to Cymer to use, sell and
manufacture products covered by SRL U.S. Patent No. [...***...] in or in
conjunction with certain Cymer laser light sources, according to the terms of
a [...***...]License and Manufacturing Agreement, dated as of January 26,
1995 (the "January 1995 Agreement") a copy of which is annexed hereto as
Exhibit "A"; and
WHEREAS, Cymer now wishes to expand the scope of the rights granted
under the January 1995 Agreement and obtain additional exclusive worldwide
rights to certain of Assignees' other patents, patent applications, trade
secrets and know-how; and
WHEREAS, Assignees are willing to grant to Cymer rights to such
patents, patent applications, trade secrets and know-how, subject to the
terms and conditions set forth below.
NOW, THEREFORE, for and in consideration of the premises, covenants,
conditions, and undertakings hereinafter set forth, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
1.1 [...***...]
1.2 DUV shall mean the deep ultraviolet region of the
electromagnetic spectrum with wavelengths, referenced to vacuum, ranging from
150 nanometers ("nm") up to but not exceeding 250nm.
1.3 EUV shall mean the extreme ultraviolet region of the
electromagnetic spectrum with wavelengths, referenced to vacuum, ranging from
10nm up to but not exceeding 50nm.
1.4 FIELD OF USE shall mean Light Sources operating in the DUV,
EUV, VUV and Soft X-ray wavelengths of the spectrum for Lithography,
Metrology and [...***...] applications.
1.5 [...***...]
***CONFIDENTIAL TREATMENT REQUESTED
1.6 GROSS SELLING PRICE shall mean the gross amount actually
received by Cymer and/or any Sublicensees from third-parties for the sale,
lease, rental, financing or other transfer of Royalty-Bearing Products
(defined below).
1.7 INVENTION shall mean (i) any and all future inventions,
developments, discoveries, improvements, know-how, trade secrets, processes,
uses, formulations, compositions, machines or manufactures, whether
patentable or not, made or discovered by SRL and/or the Assignees, directly
related to Light Sources operating in the DUV, VUV, EUV and Soft X-ray
wavelengths of the spectrum for Lithography, Metrology or [...***...]
applications ("SRL Inventions"), and (ii) any and all future inventions,
developments, discoveries, improvements, know-how, trade secrets, processes,
uses, formulations, compositions, machines or manufactures, whether
patentable or not, made or discovered by Cymer arising directly from the
Technology ("Cymer Inventions").
1.8 LASER-DRIVEN LIGHT SOURCE shall mean any light source in which
more that 95% of the power and energy needed to produce the light comes from
a pulsed laser.
1.9 LICENSED PATENTS shall mean the patents or patent applications
(i) which have been assigned to the Assignees and are listed on Schedule 1.9
attached hereto and made a part hereof; and (ii) which, in the absence of the
rights being granted under this Agreement by the Assignees to Cymer, would be
infringed by the manufacture, sale or use of the Product(s) (as defined
herein) at any time during the Term of this Agreement. Licensed Patents shall
also include any other patent applications (including any foreign counterpart
of such applications) which may be filed by the Assignees or on behalf of the
Assignees by SRL relating to Light Sources operating in the DUV, EUV, VUV and
Soft X-ray wavelengths and any patent or patents issued thereon as well as
any continuations, divisionals, continuations-in-part, substitutions,
re-examinations, reissues or extensions of any patents or patent application
described in this Section 1.9.
1.10 LIGHT SOURCE shall mean any source of electromagnetic
radiation whether coherent or incoherent, whether a laser or a lamp.
1.11 LITHOGRAPHY shall mean the art of transferring a spatial
pattern from a reference mask to the surface of a wafer and/or to the surface
of membranes to be made into masks and reticles.
1.12 METROLOGY shall mean the art of measuring distances or
surface topology.
1.13 PRODUCTION TOOL shall mean a Royalty Bearing Product that is
used in manufacturing for commercial sale (as opposed to process development
or research purposes).
1.14 PRODUCTS shall mean both the Royalty-Free and Royalty-Bearing
Products defined below.
1.15 ROYALTY-FREE PRODUCT(S) shall mean any Cymer product other
than the Royalty-Bearing Products.
1.16 ROYALTY-BEARING PRODUCTS shall mean Cymer's Light Source
products which operate in the VUV, EUV, or Soft X-ray region of the spectrum
(other than Laser-Driven Light Source products). Royalty-Bearing Products
shall also include, but not be limited to, replacement components and
replacement parts for Light Sources, covered by the Licensed Patents or
Technology, which operate in the VUV, EUV, or Soft X-ray region of the
spectrum (other than Laser-Driven Light Source products).
1.17 SOFT X-RAY shall mean that region of the electromagnetic
spectrum ranging from 0.5 nm up to but not exceeding 3.0 nm.
1.18 SUBLICENSEE shall mean any unrelated third-party to whom
Cymer grants or has granted, directly or indirectly, a right to manufacture,
have manufactured, use and/or market, distribute or sell Royalty-Bearing
Product(s).
***CONFIDENTIAL TREATMENT REQUESTED
2.
1.19 TECHNOLOGY shall mean the Licensed Patents (defined above) as
well as all confidential information, trade secrets, know-how, methods or
processes and other materials, tangible and non-tangible, including, but not
limited to: technical and non-technical data and information, drawings,
sketches, plans, diagrams, specifications and/or other documents or materials
containing said information and data; in each case that is possessed by, or
the property of, the Assignees or SRL as of the Effective Date directly
related to the Licensed Patents; as well as any SRL Invention, or SRL's
interest in any Joint Invention, discovered, developed or acquired by any
Assignee or SRL during the Term of this Agreement directly related to Light
Sources operating in the DUV, VUV, EUV or Soft X-ray wavelengths of the
spectrum for Lithography, Metrology or [...***...]applications.
1.20 VUV shall mean vacuum ultraviolet wavelengths in the region
of the electromagnetic spectrum ranging from 120nm up to but not exceeding
150nm.
1.21 TERM shall have the meaning as set forth in Section 8.1 below.
ARTICLE II
GRANT OF LICENSE
2.1 Subject to Section 2.4, each Assignee hereby grants to Cymer
an exclusive (even as to each Assignee), irrevocable (except in accordance
with Sections 8.2, 8.3, 8.4 and 8.6), worldwide license, with right to grant
sublicenses in accordance with Section 2.3: (i) to use the Technology and
incorporate the Technology into Products; (ii) under U.S. Patent No.
[...***...]to use, make, have made, sell, have sold and import Products,
including, but not limited to, Products operating in the DUV, VUV, EUV and
Soft X-ray wavelengths; and (iii) under the Licensed Patents to use, make,
have made, sell, have sold and import Product(s).
2.2 All Licensed Patents and Technology shall be and remain the
exclusive property of the Assignees and Cymer shall obtain or retain only
those rights specifically set forth in this Agreement.
2.3 Cymer shall have the right to sublicense the Technology and
Licensed Patents. Cymer shall provide SRL with a significantly completed
draft of each sublicense agreement just prior to its execution; provided,
however, that SRL shall have no right to object to any term or condition of
such sublicense. Cymer agrees to require its Sublicensees to maintain the
same confidentiality obligations as required of Cymer pursuant to Article 10
below.
2.4 In the event Cymer has not either (i) delivered a total of
ten Production Tools to one or more third parties by January 1, 2007 and
during each year thereafter, or (ii) paid the Assignees a total aggregate of
[...***...] for each Production Tool under [...***...] not delivered by Cymer
by January 1, 2007 or during each year thereafter, then the license set forth
in Section 2.1 shall terminate.
2.5 In the event that SRL obtains any rights in any Licensed
Patents (including, without limitation, U.S. Patent No. [...***...]) or
Technology (in each case other than through that certain Sublicense Agreement
dated as of even date herewith between Cymer and SRL),then SRL, subject to
Section 2.4, and as applicable, hereby grants to Cymer an exclusive (even as
to SRL), irrevocable (except in accordance with Sections 8.2, 8.3, 8.4 and
8.6), worldwide license, with right to grant sublicenses in accordance with
Section 2.3: (i) to use the Technology and incorporate the Technology into
Products; (ii) under U.S. Patent No. [...***...] to use, make, have made,
sell, have sold and import Products, including, but not limited to, Products
operating in the DUV, VUV, EUV and Soft X-ray wavelengths; and (iii) under
the Licensed Patents to use, make, have made, sell, have sold and import
Product(s).
ARTICLE III
IMPROVEMENTS AND INVENTIONS
3.1 SRL shall promptly disclose to Cymer any SRL Invention, and
Cymer shall promptly disclose to SRL any Cymer Invention which either party
may discover, develop or acquire, from time to time, during the Term
***CONFIDENTIAL TREATMENT REQUESTED
3.
of this Agreement; provided, however, that in any event, each party shall
disclose to the other party at the end of each calendar quarter during the
Term any SRL Invention or Cymer Invention, as the case may be, discovered or
developed during such calendar quarter. Cymer Inventions made and conceived
solely by Cymer shall be the sole property of Cymer. SRL Inventions made and
conceived solely by SRL or the Assignees shall be the sole property of SRL.
Any and all inventions made and conceived jointly by Cymer and SRL shall be
owned jointly ("Joint Inventions"). SRL Inventions and SRL's interest in any
Joint Invention shall be deemed Technology, and, if patentable, Licensed
Patents, for purposes of this Agreement and shall be included in the license
hereunder for no additional consideration. Cymer Inventions and Cymer's
interests in Joint Inventions shall be deemed Sublicensed Technology, and if
patentable, Sublicensed Patents, under that certain Patent Sublicense
Agreement of even date herewith between Cymer and SRL.
3.2 Each party shall cooperate with the other in order to assign
all right, title, and interest in any Inventions to the proper owner. This
obligation to assign shall relate to all pending applications for patent
claiming any Inventions and continuations, divisions, continuations-in-part,
reissues, extensions, reexaminations, and other derivatives thereof, whenever
filed.
ARTICLE IV
ROYALTIES
4.1 In consideration of the rights and licenses granted
hereunder, Cymer agrees to pay (in accordance with Section 4.3) to the
Assignees the following:
4.1.1 A total up-front payment of [...***...] to be paid
as follows: (i) [...***...] due on the signing of this Agreement, receipt of
which is hereby acknowledged, and (ii) [...***...] to be placed in an
interest bearing account to be held by an escrow agent mutually acceptable to
the parties, which amount shall be released from such escrow account as
follows: (a) [...***...]shall be released to the Assignees in accordance with
Section 4.3 below upon issuance of a patent by the United States Patent and
Trademark Office pursuant to patent application no. [...***...]; (b)
[...***...] shall be released to the Assignees in accordance with Section 4.3
below upon the issuance in Japan of a patent pursuant to PCT application no.
[...***...]; (c) if a patent does not issue from patent application no.
[...***...], then [...***...] shall be released to Cymer; (d) if a Japanese
patent does not issue from PCT application no. [...***...], then [...***...]
shall be released to Cymer; and e) if Cymer requests SRL to cease prosecuting
either, or both, of these applications,then [...***...] shall be released to
the Assignees for each request.
4.1.2 Beginning on the date Cymer delivers the first
Production Tool to any third-party and for the duration of the Term
thereafter, a royalty of [...***...] of the Gross Selling Price of all
Royalty-Bearing Products sold, leased or otherwise disposed of by Cymer
and/or any Sublicensees to end-users after such date.
4.1.3 The parties hereby acknowledge that [...***...] of
the payments made by Cymer to the Assignees hereunder shall be allocable to
the license of U.S. Patent No. [...***...].
4.1.4 Cymer shall issue at Closing, to each Assignee, a
warrant to purchase One Hundred Thousand (100,000) shares of its common at an
exercise price per share equal to the closing price of Cymer's common stock
as quoted on the Nasdaq National Market on the trading day prior to the
issuance of such warrant. Each warrant shall be in the form attached hereto
and made a part hereof as Exhibit B.
4.2 In the event that Cymer receives any up-front, lump-sum or
similar cash payments from a Sublicensee in connection with the granting of
any sublicense to such Sublicensee or other marketing or distribution
arrangement, such payments shall be included for purposes of royalties to be
paid as part of the Gross Selling Price of Royalty-Bearing Products and Cymer
shall pay [...***...] of such payments to the Assignees within thirty (30)
days of receipt of such payments by Cymer. Such payments shall be in addition
to the payments made pursuant to Section 4.1, above.
***CONFIDENTIAL TREATMENT REQUESTED
4.
4.3 Royalties shall be paid to the Assignees monthly on the 15th
day of each month based on the Gross Selling Price actually received by Cymer
for Royalty-Bearing Products during the previous calendar month. All payments
hereunder shall be split and paid on a [...***...] basis to each Assignee at
their respective addresses stated above. Cymer shall provide the Assignees
with written reports made no later than the 15th day of each month showing
the Gross Selling Price actually received by Cymer for Royalty-Bearing
Products during the preceding month. If no Gross Selling Price for
Royalty-Bearing Products was received during the preceding month, a statement
to that effect shall be required.
ARTICLE V
BOOKS AND RECORDS
5.1 Cymer shall keep complete, true and accurate books and
records for the purpose of accurately determining the compensation due to the
Assignees hereunder including, but not limited to, records of all
Royalty-Bearing Products sold, leased, rented, financed or otherwise
transferred during a particular month and for each calendar year or portion
thereof by Licensee and Sublicensees, if any, under this Agreement during the
Term. Such books and records shall be kept at the principal place of business
of Cymer for at least three (3) years following the end of the calendar year
to which they pertain. Such records will be open for inspection during such
three (3) year period by a representative of the Assignees for the purpose of
verifying the compensation due under Article 4 of this Agreement. Such
inspections may be made no more than once each calendar year, at reasonable
times and on reasonable notice.
5.2 The fees and expenses of the representatives performing such
an examination shall be borne by the Assignees unless a variation or error
producing an underpayment of royalties in an amount exceeding [...***...] of
the amount actually paid for any period covered by the inspection is
established in the course of the inspection. If such an underpayment is
established, all the costs relating to the inspection for such period, and
any unpaid amounts that are discovered, shall be paid by Cymer within sixty
(60) days following notification of the discrepancy.
ARTICLE VI
PATENT PROSECUTION AND INFRINGEMENT
6.1 Cymer agrees that it shall, at its own expense and in the
name of the Assignees and/or SRL, if applicable, prepare, file, prosecute
(except that SRL shall prosecute PCT application no. [...***...] in Japan)
and maintain the Licensed Patents in such countries as Cymer deems
appropriate, and shall be responsible for conducting any interferences,
re-examinations, reissues, oppositions or requests for patent term extensions
relating to the Licensed Patents, except that SRL and the Assignees shall, at
their own expense prosecute the patent applications stated above in Section
4.1.1 in the United States. Each Assignee and SRL shall cooperate fully in
the preparation, filing and prosecution of any Licensed Patents under this
Agreement. Notwithstanding the foregoing, Cymer shall not take any such
action that could adversely affect a patent or application owned by the
Assignees, unless such action is mutually agreed by the parties. Cymer shall
provide Assignees with sufficient written notice of any decision not to
prepare, file, prosecute and maintain any Licensed Patent so that Assignee
may take such action on its own.
6.2 Each party will promptly notify the other party of any
written claim received by it alleging infringement by a Product of the
proprietary rights or patents of a third party. Cymer shall assume the
defense of any action relating to any such allegation of infringement. Each
Assignee and SRL shall cooperate fully, at Cymer's expense, in any such
defense of such action.
6.3 Each party will promptly notify the other party hereto of the
possible infringement by a third-party of a Product or any of the Technology
comprising a Product. Cymer shall have the sole right to take any action it
deems necessary, at its sole cost and expense, with respect to any
infringement of a Product or the Licensed Patents. SRL and each Assignee
shall cooperate fully, at Cymer's expense, in any such action.
***CONFIDENTIAL TREATMENT REQUESTED
5.
6.3.1 If Cymer fails to bring an infringement action as
provided in Section 6.3 above within sixty (60) days after notice of alleged
infringement, SRL shall be permitted to take any action it deems necessary,
at its sole cost and expense, with respect to any infringement of a Product
or the Licensed Patents.
6.3.2 If either party brings an infringement action under
this Agreement, the other party shall cooperate fully, including if required
to bring such action, the furnishing of a power of attorney.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.1 ASSIGNEES AND SRL. Each Assignee and SRL, jointly and
severally, represent and warrant that: (i) it has full power and authority to
enter into this Agreement; (ii) the Assignees have obtained all right, title
and interest in and to the Technology and have obtained all rights necessary
to grant the licenses they grant herein, except as otherwise stated in
Section 7.1 (v) of this Agreement; (iii) there have been no requests for
reexamination or motions for summary judgment alleging the invalidity of any
of the Licensed Patents; (iv) no patent included in the Licensed Patents is
the subject of any pending interference, opposition, cancellation or other
protest proceeding; (v) there are no outstanding liens, encumbrances,
agreements or understandings of any kind, either written, oral or implied
potentially bearing upon the Assignees' title to, or ownership of, the
Licensed Patents, other than certain disputed allegations of co-inventorship
by Cymer employees; (vi) it has not previously granted and will not grant any
rights in conflict with the rights and licenses granted herein; (vii) it has
obtained all necessary corporate approvals to enter and execute into this
Agreement; and (viii) it shall fully comply with the requirements of any and
all applicable federal, state, local and foreign laws, regulations, rules and
orders of any governmental body having jurisdiction over the activities
contemplated by this Agreement.
7.2 CYMER. Cymer represents and warrants that: (i) it has full
power and authority to enter into the Agreement; (ii) it has obtained all
necessary corporate approvals to enter and execute into this Agreement; and
(iii) it shall fully comply with the requirements of any and all applicable
federal, state, local and foreign laws, regulations, rules and orders of any
governmental body having jurisdiction over the activities contemplated by
this Agreement.
7.3 DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
AGREEMENT, NO PARTY MAKES ANY REPRESENTATION OR EXTENDS ANY WARRANTIES OF ANY
KIND EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR
VALIDITY OF ANY PATENTS ISSUED OR PENDING.
ARTICLE VIII
TERM AND TERMINATION
8.1 TERM. This Agreement shall become effective as of the
Effective Date and, unless earlier terminated pursuant to the other
provisions of this Article 8, shall expire upon the expiration of the last to
expire of the patents included in the Licensed Patents (the "Term").
8.2 TERMINATION FOR CAUSE. Notwithstanding the language contained
in Section 8.1, this Agreement may be terminated by Cymer if, at any time
during the Term, an Assignee or SRL is in breach of any term or condition of
this Agreement and fails to remedy the breach within sixty (60) days after
being given written notice thereof by Cymer. Notwithstanding the language in
Section 8.1, this Agreement may be terminated by an Assignee or SRL if, at
any time during the Term, Cymer is in breach of any term or condition of this
Agreement and fails to remedy the breach within sixty (60) days after being
giving written notice thereof by such Assignee or SRL.
8.3 TERMINATION FOR INSOLVENCY. This Agreement may also be
terminated immediately upon written notice by Cymer if an Assignee or SRL (i)
becomes the subject of a voluntary or involuntary petition in bankruptcy or
any proceeding relating to insolvency, receivership, liquidation, or
composition for the benefit of creditors, if that
***CONFIDENTIAL TREATMENT REQUESTED
6.
petition or proceeding is not dismissed with prejudice within sixty (60) days
after filing; or (ii) makes a general assignment for the benefit of
creditors. This Agreement may also be terminated immediately upon written
notice by Assignee or SRL if Cymer (i) becomes the subject of a voluntary or
involuntary petition in bankruptcy or any proceeding relating to insolvency,
receivership, liquidation, or composition for the benefit of creditors, if
that petition or proceeding is not dismissed with prejudice within sixty (60)
days after filing; or (ii) makes a general assignment for the benefit of
creditors.
8.4 TERMINATION BY CYMER. If Cymer, in its sole discretion,
elects not to use the Technology, it may immediately terminate this Agreement
upon written notice to SRL and the Assignees.
8.5 CONTINUING OBLIGATIONS; SURVIVAL. It is understood that
termination or expiration of this Agreement shall not relieve a party from
any obligation or liability which, at the time of such termination or
expiration, has already accrued to the other party. The provisions of
Sections 2.2, 2.5, 3.2, 6.2, 6.3, 8.5, 8.6 and Articles 1, 5, 7, 9, 10, 12
and 13 shall survive the termination of this Agreement for any reason. Except
as otherwise expressly provided in this Article 8, all other rights and
obligations of the parties shall terminate upon termination of this
Agreement; provided, however, that if this Agreement is terminated by Cymer
in accordance with Section 8.2 above, Sections 2.1, 2.3 and 2.5 shall also
survive such termination; provided, further, however that if this Agreement
is terminated by Cymer in accordance with Section 8.4 above, the license of
Patent No. [...***...] stated in Section 2.1(ii) shall also survive such
termination or expiration but only with respect to Products operating in the
DUV wavelength of the spectrum.
8.6 TECHNOLOGY. Upon termination of this Agreement by the
Assignees or SRL, all Technology including any improvements, designs,
drawings, formulas or other data, photographs, samples, literature, and sales
and promotional aids of every kind relating to the Products and received from
or owned by Assignees shall remain the property of the Assignees. Within
fifteen (15) days after such termination, Cymer shall destroy all tangible
items bearing, containing, or contained in, any of the foregoing, in its
possession or control and provide a written certification of such
destruction, or prepare such tangible items for shipment to the Assignees, as
the Assignees may direct, at the Assignees' expense. Cymer shall not make or
retain any copies of any Confidential Information (defined below) of the
Assignees or SRL which may have been entrusted to it. Effective upon such
termination of this Agreement, Cymer shall immediately cease (i) promoting,
selling and/or distributing the Royalty-Bearing Products; and (ii) use of all
the Technology.
8.7 POST-TERMINATION DISTRIBUTION RIGHT. Notwithstanding anything
to the contrary herein, if this Agreement is terminated by SRL or an Assignee
for Cymer's breach in accordance with Section 8.2, then Cymer shall have six
(6) months after the date of such termination to fulfill any contractual
obligations in existence at the time of such termination. Cymer may retain
such Technology as is necessary to fulfill such contractual obligations and
Cymer may distribute Products during such six (6) months, subject to the
royalty obligations set forth herein.
ARTICLE IX
INDEMNIFICATION
9.1 INDEMNIFICATION BY SRL. SRL shall indemnify, defend and hold
harmless Cymer, its directors, officers, employees, agents, successors and
assigns from and against all liabilities, expenses or costs (including
reasonable attorneys' fees and court costs) arising out of any claim,
complaint, suit, proceeding or cause of action against any of them by a
third-party alleging (i) the negligent or intentionally wrongful acts or
omissions of SRL or any Assignee; or (ii) any breach by any Assignee or SRL
of any of its representations or warranties set forth in Article VII of this
Agreement.
9.2 INDEMNIFICATION BY CYMER. Cymer shall indemnify, defend and
hold harmless Assignees and SRL, their directors, officers, employees,
agents, successors and assigns from and against all liabilities, expenses,
and costs (including reasonable attorneys' fees and court costs) arising out
of any claim, complaint, suit, proceeding or cause of action against any of
them by a third-party alleging (i) the negligent or intentionally wrongful
acts or omissions of Cymer; (ii) any breach by Cymer of any of its
representations or warranties set forth in Article VII of this Agreement;
(iii) infringement with respect to the manufacture or use of any Product
(excluding any claim for
***CONFIDENTIAL TREATMENT REQUESTED
7.
infringement based on the Technology); or (iv) breach of any warranty
relating to the Products including, but not limited to defects in design,
manufacturing or claims under any theory of product liability.
9.3 INDEMNIFICATION PROCEDURE. A party that intends to claim
indemnification (the "Indemnitee") under this Article 9 shall promptly notify
the indemnifying party(ies) (the "Indemnitor") in writing of any third party
claim, suit or proceeding or cause of action included within the
indemnification described in this Article 9, above (each a "Claim") with
respect to which the Indemnitee intends to claim such indemnification, and
the Indemnitor shall have sole control of the defense and/or settlement
thereof; provided that the Indemnitee shall have the right to participate, at
its own expense, with counsel of its own choosing in the defense and/or
settlement of such Claim. The indemnification under this Article 9 shall not
apply to amounts paid in settlement of any Claim if such settlement is
effected without the consent of the Indemnitor. The Indemnitee under this
Article 9, and its employees, at the Indemnitor's request and expense,
provide full information and reasonable assistance to Indemnitor and its
legal representatives with respect to such Claims.
9.4 INSURANCE. SRL and each Assignee shall cooperate with Cymer
in Cymer's efforts to obtain patent infringement insurance, including without
limitation, providing relevant documentation pertaining to the Licensed
Patents to potential insurers identified by Cymer.
ARTICLE X
CONFIDENTIALITY
10.1 CONFIDENTIAL INFORMATION. The parties may from time to time
disclose to each other Confidential Information in connection with this
Agreement. "Confidential Information" shall mean any information disclosed by
one party to the other party which information is not generally known to the
public and may include by way of example, but without limitation (a)
information concerning the disclosing party's management, financial
condition, financial operations, purchasing activities, costs of products,
sales activities, marketing activities and business plans, (b) information
concerning or resulting from the disclosing party's research and development
work, including, but not limited to, improvements, discoveries, inventions
and new product ideas, (c) information of the disclosing party concerning
actual or potential vendors or customers, (d) the disclosing party's computer
programs, including source code, object code, algorithms, methods, structure
and related information including diagrams, flow charts, designs,
specifications, manuals, descriptions, instructions, explanations and
improvements, and (e) information concerning the disclosing party's products,
including plans, blueprints, parts and assembly drawings, specifications,
descriptions, designs, diagrams, dimensions, tolerances, parts and
components, in each case, whether disclosed orally, in writing,
electronically or through any other media. Notwithstanding the foregoing or
anything herein to the contrary, Confidential Information shall not include
any information that, in each case, the receiving party can prove by written
documentation: (i) was already known to the receiving party, other than under
an obligation of confidentiality, at the time of disclosure; (ii) was
generally available to the public or otherwise part of the public domain at
the time of its disclosure to the receiving party; (iii) became generally
available to the public or otherwise part of the public domain after its
disclosure and other than through any act or omission of the receiving party
in breach of this Agreement; (iv) was subsequently disclosed to the receiving
party by a person other than the disclosing party who was not bound by any
confidentiality obligation; or (v) was developed entirely independently by
the receiving party without use of, reliance on or reference to the
Confidential Information of the other party.
10.2 CONFIDENTIALITY. Each party agrees to protect, hold and
maintain in strict confidence all Confidential Information of the other party
for a period of ten (10) years from the date of disclosure. Without limiting
the foregoing, neither party shall use or disclose the Confidential
Information of the other party, except as otherwise permitted by this
Agreement or as may be necessary or useful to exercise its rights or perform
its obligations under this Agreement provided that employees, agents, and
representatives of the receiving party shall be given access to Confidential
Information only on a need-to-know basis and only if they are bound by
obligations of confidentiality comparable to those contained herein. Nothing
contained in this Article 10 shall prevent either party from disclosing any
Confidential Information of the other party to (a) accountants, lawyers or
other professional advisors or in connection with a merger, acquisition or
securities offering, subject in each case to the recipient entering into an
agreement to protect such Confidential Information from disclosure; or (b) is
required by law or regulation to be disclosed; provided, however, that the
party subject to such disclosure requirement has
***CONFIDENTIAL TREATMENT REQUESTED
8.
provided written notice to the other party promptly upon receiving notice of
such requirement in order to enable the other party to seek a protective
order or otherwise prevent disclosure of such Confidential Information.
ARTICLE XI
NON-SOLICITATION
11.1 During the Term of this Agreement, neither party shall
contact, divert, or influence, or attempt to divert or influence any
personnel of the other for purposes of providing employment to such personnel
without the prior written consent of the current employer. In the event that
either party breaches this non-solicitation covenant and hires (the "New
Employer") an employee or consultant who, within the six (6) months
immediately preceding the date of hire by the New Employer, was employed by
the other party (the "Prior Employer"), the New Employer shall pay to the
Prior Employer as compensation for the loss of the employee/consultant, three
(3) times the first year's total compensation being paid by the New Employer
to the employee/consultant.
11.2 All payments due hereunder shall be made, in-full, within
thirty (30) days of the first day the employee/consultant provides services
to the New Employer.
ARTICLE XII
LIMITATION OF LIABILITY
EXCEPT FOR BREACH OF SECTION 10, NEITHER PARTY, TO THE MAXIMUM
EXTENT PERMITTED BY APPLICABLE LAW, SHALL HAVE ANY LIABILITY TO THE OTHER
PARTY FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), FOR ANY INDIRECT,
CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUES, SAVINGS, BUSINESS
INTERRUPTION AND THE LIKE) UNDER OR RELATING TO THIS AGREEMENT, EVEN IF SUCH
OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE XIII
MISCELLANEOUS
13.1 NOTICES. All notices required or permitted hereunder shall be
given in writing and sent by facsimile transmission (with confirmation of
receipt), or mailed postage prepaid, certified or registered mail, return
receipt requested, or sent by a nationally recognized express courier
service, or hand-delivered at the following address:
To SRL: Science Research Laboratory, Inc.
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn.: Xx. Xxxxx Xxxxx, President
Facsimile:
To Assignees: Xx. Xxxxxx X. Xxxxxxx
[...***...]
Xx. Xxxxx X. Xxxxx
[...***...]
***CONFIDENTIAL TREATMENT REQUESTED
9.
To Cymer: Cymer, Inc.
00000 Xxx Xxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn.: Xx. Xxxxxx X. Xxxxx, CEO
Facsimile:
All notices shall be deemed made upon receipt by the addressee as evidenced
by the applicable written receipt or, in the case of a facsimile, as
evidenced by the confirmation of transmission.
13.2 PUBLIC ANNOUNCEMENTS.
13.2.1 Subject to Section 13.2.2, all publicity, press
releases and other announcements relating to this Agreement or the
transaction contemplated hereby shall be reviewed in advance by, and be
subject to the approval of, both parties; provided, however, that either
party may, without the consent of the other, (i) disclose the existence and
general subject matter of this Agreement without the other party's approval
and (ii) subject to Article 10 disclose the terms of this Agreement as
required to comply with applicable securities laws. Any party that determines
applicable securities laws require it to file this Agreement shall first
provide the other party a copy of the redacted version it intends to file and
shall provide the other party the opportunity to comment thereon.
Notwithstanding the foregoing, the filing party will make the final decisions
regarding the version hereof to file.
13.2.2 Subject to Article 10, any party that determines
applicable securities laws require it to disclose publicly (i) non-financial
information with respect to its relationship to the other party or (ii) any
aspect of the other party's business, shall first provide the other party a
copy of the disclosure it intends to disclose and shall provide the other
party the opportunity to comment thereon. Notwithstanding the foregoing, the
disclosing party will have final decision-making authority with respect to
its disclosures.
13.3 CAPTIONS AND SECTION REFERENCES. The titles, headings or
captions in this Agreement do not define, limit, extend, explain or describe
the scope or extent of this Agreement or any of its terms or conditions and
therefore shall not be considered in the interpretations, construction or
application of this Agreement.
13.4 SEVERABILITY. Whenever possible, each clause, subclause,
provision or condition of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any clause,
subclause, provision or condition of this Agreement should be prohibited or
invalid under applicable law, such clause, subclause, provision or condition
shall be considered separate and severable from this Agreement to the extent
of such prohibition or invalidity without invalidating the remaining clauses,
subclauses, provisions and conditions of this Agreement, so long as the
remaining Agreement reflects the economic intentions of the parties as
evidenced by this Agreement as a whole.
13.5 ENTIRE AGREEMENT. Except for the January 1995 Agreement and
the Sublicense Agreement, this Agreement (including Exhibits, Schedules and
documents attached or delivered pursuant hereto) embodies the entire
agreement and understanding of the parties hereto in relation to the subject
matter hereof and supersedes any and all prior understandings and agreements,
whether written or oral in regard to such matters. The January 1995 Agreement
shall remain in full force and effect, except to the extent, if any, that it
is superseded and/or amended by the provisions of this Agreement. If there is
any conflict between this Agreement and the January 1995 Agreement, the
provisions of this Agreement will control.
13.6 AMENDMENT. No amendment, change or modification of any of the
terms, provisions or conditions of this Agreement shall be effective unless
made in writing and signed on behalf of the parties hereto by their duly
authorized representatives.
***CONFIDENTIAL TREATMENT REQUESTED
10.
13.7 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, by facsimile, or both, each of which shall be deemed to be an
original document, but all such separate counterparts shall constitute only
one and the same Agreement.
13.8 WAIVER. No waiver of any term, provision or condition of this
Agreement, whether by conduct or otherwise, in any one or more instances,
shall be deemed to be or construed as a further or continuing waiver of any
such or other term, provision or condition of this Agreement.
13.9 BINDING AGREEMENT; SUCCESSION. This Agreement shall be
binding upon and shall inure to the benefit of the parties and their
respective successors and permitted assigns. No party may assign this
Agreement without the prior written approval of the other parties which
approval shall not be unreasonably withheld or delayed; provided, however,
that any party may assign this Agreement without the prior written approval
of any other party in connection with the acquisition of such party by, or
merger of such party with or into, a third party or the sale of substantially
all of such party's assets; provided, however, that each Assignee may assign
its interest herein to SRL without the prior written consent of Cymer.
13.10 INDEPENDENT CONTRACTORS. The relationship of SRL, the
Assignees and Cymer established by this Agreement is that of independent
contractors. Nothing in this Agreement shall be construed to create any other
relationship between the Assignees, SRL and Cymer. No party shall have any
right, power or authority to assume, create or incur any expense, liability
or obligation, express or implied, on behalf of any other.
13.11 GOVERNING LAW. This Agreement shall be interpreted under and
enforced in accordance with the laws of the State of Massachusetts.
***CONFIDENTIAL TREATMENT REQUESTED
11.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the day and year first above written.
SCIENCE RESEARCH LABORATORY, INC. CYMER, INC.
By: /s/ XXXXX XXXXX By: /s/ XXXXXX X. XXXXX
------------------------------- -------------------------------
Xxxxx Xxxxx, Ph.D., President Xxxxxx X. Xxxxx, Ph.D., CEO
By: /s/ XXXXXX X. XXXXXXX
-------------------------------
Xxxxxx X. Xxxxxxx
ASSIGNEES:
By: /s/ XXXXX X. XXXXX
-------------------------------
Xxxxx X. Xxxxx
By: /s/ XXXXXX X. XXXXXXX
-------------------------------
Xxxxxx X. Xxxxxxx
***CONFIDENTIAL TREATMENT REQUESTED
[SIGNATURE PAGE TO PATENT LICENSE AGREEMENT]
EXHIBIT "A"
[...***...] LICENSE AND MANUFACTURING AGREEMENT
DATED AS OF JANUARY 26, 1995
***CONFIDENTIAL TREATMENT REQUESTED
APPT / SRL / CYMER
[...***...] LICENSE
AND MANUFACTURING AGREEMENT
This Agreement is effective January 26, 1995 and is made by and
between APPT Inc., a California corporation ("APPT") having its principle
office at 0000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx 00000, Science Research
Laboratory, Inc., a Massachusetts corporation ("SRL") having its principal
office at 00 Xxxx Xx., Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (APPT and SRL
sometimes being collectively referred to hereinafter as "APPT/SRL", and Cymer
Laser Technologies, a California corporation ("Cymer") having its principal
office at 00000 Xxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000.
RECITALS
A. Cymer is a manufacturer of excimer lasers for various
industrial applications including most importantly the photolithography light
source for deep UV lithography for the semiconductor industry.
B. APPT/SRL is a developer and manufacturer of, among other
products, [...***...] products of the type described in U.S. Patent No.
[...***...] (the "Products") for the production of pulsed electrical energy.
C. In the past Cymer and APPT/SRL have worked cooperatively on
various development contracts which have resulted in the integration of
APPT/SRL's [...***...] on Cymer's excimer laser.
D. APPT/SRL wishes to ensure that its developed [...***...]
technology is introduced and utilized on a commercial basis.
Accordingly, in consideration of the premises and the promises set
forth in this Agreement, APPT/SRL and Cymer agree as follows:
1. LICENSE TO USE AND MANUFACTURE. APPT/SRL hereby grants an exclusive
irrevocable worldwide license to Cymer to use, sell and except for
APPT/SRL, manufacture the Product in or in conjunction with excimer
lasers. Should APPT/SRL grant another license of its [...***...]
technology to another manufacturer, APPT/SRL will restrict that
manufacturer from selling the Product or using that technology in any
way that would be competitive with Cymer's use for excimer lasers.
Nothing herein shall prevent APPT/SRL from making, using or selling the
Product or from licensing others to make, use or sell the Product for
any application which does not integrate or use the Product with
excimer lasers.
2. INITIAL SUPPLY OF PRODUCT. APPT/SRL agrees to supply Cymer's
requirements for the Products. The initial prices of the Products will
be mutually agreed prior to 12/31/95, but are generally targeted to be
[...***...] for the smaller modulator and [...***...] for the larger
modulator. Prices for the Products will be reviewed on an annual basis
thereafter and otherwise as new Products are introduced. The parties
will in each instance use their best efforts to negotiate a price for
the Products which is fair and reasonable and mutually agreeable to the
parties. APPT/SRL's commitment to meet Cymer's requirements shall be
conditional on Cymer providing APPT/SRL with estimates of its
requirements for Products at reasonable intervals, and in particular of
any significant increase or decrease in requirements which is
anticipated, and of
***CONFIDENTIAL TREATMENT REQUESTED
orders from Cymer being placed at least two (2) months in advance of
any delivery date. Additionally, Cymer shall have the right to use the
technical support provided in Section 3 below to manufacture or have
manufactured sufficient Products to, in conjunction with or in place
of those provided by APPT/SRL, fill Cymer's requirements. APPT/SRL
shall promptly advise Cymer as soon as it becomes aware that it will
be unable to meet any requirements for Products by Cymer.
3. TECHNICAL SUPPORT. Prior to 12/31/95 APPT/SRL will provide to Cymer on
a confidential basis a complete set of plans, specifications, and
assembly instructions that would enable Cymer to manufacture or have
manufactured the Products. Cymer agrees to maintain the material
provided above as confidential, not to disclose such information to any
third party or any employee of Cymer not having a need to know, and to
not use such information for any purpose other than to manufacture or
have manufactured the Products for its own use or sale in excimer
lasers. APPT/SRL will be reasonably available to provide technical
support and understanding of the documentation and materials provided.
4. USE PATENT. APPT/SRL and Cymer will jointly file for appropriate use
patents for [...***...] for excimer lasers. Cymer will absorb all costs
of these patent applications. Ownership of any patents granted as a
result of this effort will be shared jointly, as will any income which
is derived from the licensing or other granting of rights under such
patent or the application relating thereto.
5. CONSIDERATION. In return for the exclusive license granted to Cymer,
Cymer will deliver to APPT 10,000 shares of its common stock within
thirty days of the execution of this contract. At the date of this
Agreement, the total number of shares of Cymer stock outstanding is not
greater than 10,000,000. See attached investment representations.
6. LOSS OF EXCLUSIVITY. Should Cymer fail to utilize at least 12 APPT/SRL
designed Products during calendar year 1996, or during any calendar
year thereafter, then Cymer's exclusive license becomes non-exclusive
at the end of such year and APPT/SRL is free to license or sell to
other excimer laser manufacturers.
7. BREACH. As long as Cymer maintains its exclusivity as defined in
paragraph 6 above, should APPT/SRL sell its [...***...] to another
manufacturer of excimer lasers or to a supplier for resale to
manufacturers of excimer lasers then both parties agree that Cymer will
have been irreparably damaged and will be entitled to injunctive relief
as well as any monetary damages that might be awarded in a court of
law. Either party shall have the right to terminate this Agreement in
the event of a breach by the other party, which breach is not cured
within thirty (30) days of written notice of the breach from the
nonbreaching party; provided, however, that in the event the nature of
the breach is such that it cannot be reasonably cured within thirty
(30) days, the breaching party shall have such additional time to
correct the default as is reasonably required, provided it is
diligently engaged in curing the default during such additional period.
APPT/SRL shall also have the right to terminate this Agreement in the
event of the bankruptcy or insolvency of Cymer. Except as indicated
above, the Agreement shall remain in effect unless terminated by mutual
agreement of the parties.
8. WARRANTIES. APPT/SRL warrants that, APPT/SRL has full power and
authority to convey all rights and licenses granted to Cymer under this
Agreement. APPT/SRL further warrants that, to the best of its
knowledge, Cymer's use of the Product will not infringe any patent,
copyright, or trade secret right of any third party worldwide. However,
APPT/SRL makes no representation that it has made any infringement
search in any country relating to the Products.
***CONFIDENTIAL TREATMENT REQUESTED
9. INDEMNITIES. Except for any liability arising as a result of a breach
of warranty by APPT/SRL, APPT/SRL shall have no liability to Cymer or
any customer of Cymer with respect to any matter relating to the sale
or use of Products, either by APPT/SRL to Cymer or by Cymer to its
customers, and Cymer agrees to fully indemnify and defend APPT/SRL
against any such claim arising as a result of a sale or other
disposition of a Product by Cymer.
10. GOVERNING LAW. The validity, construction and performance of this
Agreement and the legal relations among the parties to this Agreement
shall be governed by and construed in accordance with the laws of the
State of California.
11. MISCELLANEOUS. Any notices required to be provided under this Agreement
shall be provided in writing with notices to APPT/SRL being provided to
APPT and SRL separately at the addresses provided in the preamble,
attention its President in each instances, and notices to Cymer being
sent to the address indicated in the preamble, attention its President.
This document represents the complete agreement of the parties on the
subject matter hereof and may not be altered or amended except by a
document in writing, signed by authorized representatives of all three
parties. To the extent any dispute should develop between the parties
concerning this Agreement, the parties will use their best efforts to
resolve such dispute. In the event they are unable to resolve the
dispute, the dispute shall be resolved by binding arbitration before a
single arbitrator mutually agreeable to the parties. Such arbitration
will be conducted in Los Angeles, California, with each party
submitting to the arbitrator a proposed resolution of the dispute and
the arbitrator selecting one of such proposed solutions, the
arbitration otherwise being conducted in accordance with the rules of
the American Arbitration Association.
IN WITNESS WHEREOF, the parties hereto have caused this PRODUCT LICENSE
AND MANUFACTURING AGREEMENT to be executed by their authorized representatives.
APPT INC.: CYMER LASER TECHNOLOGIES:
a California Corporation a California Corporation
By: /S/ XXXXXX XXXX By: /S/ XXXXXX X. XXXXX
------------------------------- ---------------------------
Xxxxxx Xxxx, President Xxxxxx X. Xxxxx, President
SCIENCE RESEARCH LABORATORY, INC.
a Massachusetts Corporation
By: /S/ XXXXX XXXXX
--------------------------------
Xxxxx Xxxxx, President
***CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT "B"
WARRANT
***CONFIDENTIAL TREATMENT REQUESTED
THIS WARRANT AND THE UNDERLYING SECURITIES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THEY MAY NOT BE
SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN
EFFECTIVE REGISTRATION STATEMENT AS TO SUCH SECURITIES UNDER THE SECURITIES
ACT OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
CYMER, INC.
WARRANT TO PURCHASE COMMON STOCK
NO. CW-__ MAY ___, 2001
VOID AFTER MAY ___, 2006
THIS CERTIFIES THAT, for value received, _________________________,
or assigns (the "HOLDER"), is entitled to subscribe for and purchase at the
Exercise Price (defined below) from CYMER, INC., a Nevada corporation, with
its principal office at 00000 Xxx Xxx Xxxxx Xxxxx Xxx Xxxxx, Xxxxxxxxxx
00000-0000 (the "COMPANY"), up to one hundred thousand (100,000) shares of
the Common Stock of the Company ("COMMON STOCK").
1. DEFINITIONS. As used herein, the following terms shall have the
following respective meanings:
(A) "EXERCISE PERIOD" shall mean the period commencing on May
___, 2001 and ending May ___, 2006, unless sooner terminated as provided
below.
(B) "EXERCISE PRICE" shall mean $___________.
(C) "EXERCISE SHARES" shall mean the shares of the Company's
Common Stock issuable upon exercise of this Warrant.
2. EXERCISE OF WARRANT. The rights represented by this Warrant may
be exercised in whole or in part at any time during the Exercise Period, by
delivery of the following to the Company at its address set forth above (or
at such other address as it may designate by notice in writing to the Holder):
(A) An executed Notice of Exercise in the form attached
hereto;
(B) Payment of the Exercise Price either (i) in cash or by
check, or (ii) by cancellation of indebtedness; and
(C) This Warrant.
Upon the exercise of the rights represented by this Warrant, a
certificate or certificates for the Exercise Shares so purchased, registered
in the name of the Holder or persons affiliated
***CONFIDENTIAL TREATMENT REQUESTED
with the Holder, if the Holder so designates under Section 10 hereof, shall
be issued and delivered to the Holder within a reasonable time after the
rights represented by this Warrant shall have been so exercised.
The person in whose name any certificate or certificates for
Exercise Shares are to be issued upon exercise of this Warrant shall be
deemed to have become the holder of record of such shares on the date on
which this Warrant was surrendered and payment of the Exercise Price was
made, irrespective of the date of delivery of such certificate or
certificates, except that, if the date of such surrender and payment is a
date when the stock transfer books of the Company are closed, such person
shall be deemed to have become the holder of such shares at the close of
business on the next succeeding date on which the stock transfer books are
open.
2.1 NET EXERCISE. Notwithstanding any provisions herein to the
contrary, if the fair market value of one share of the Company's Common Stock
is greater than the Exercise Price (at the date of calculation as set forth
below), in lieu of exercising this Warrant by payment of cash, the Holder may
elect to receive shares equal to the value (as determined below) of this
Warrant (or the portion thereof being canceled) by surrender of this Warrant
at the principal office of the Company together with the properly endorsed
Notice of Exercise in which event the Company shall issue to the Holder a
number of shares of Common Stock computed using the following formula:
X = Y (A-B)
-------
A
Where X = the number of shares of Common Stock to be issued to
the Holder
Y = the number of shares of Common Stock purchasable
under the Warrant or, if only a portion of the
Warrant is being exercised, the portion of the
Warrant being canceled (at the date of such
calculation)
A = the closing sales price of one share of Common Stock
as quoted on the Nasdaq on the
date of such calculation
B = Exercise Price (as adjusted to the date of such
calculation)
3. COVENANTS OF THE COMPANY.
3.1 COVENANTS AS TO EXERCISE SHARES. The Company covenants and
agrees that all Exercise Shares that may be issued upon the exercise of the
rights represented by this Warrant will, upon issuance, be validly issued and
outstanding, fully paid and nonassessable, and free from all taxes, liens and
charges with respect to the issuance thereof. The Company further covenants
and agrees that the Company will at all times during the Exercise Period,
have authorized and reserved, free from preemptive rights, a sufficient
number of shares of its Common Stock to provide for the exercise of the
rights represented by this Warrant. If at any time during the Exercise Period
the number of authorized but unissued shares of Common Stock shall not be
sufficient to permit exercise of this Warrant, the Company will take such
corporate
***CONFIDENTIAL TREATMENT REQUESTED
action as may, in the opinion of its counsel, be necessary to increase its
authorized but unissued shares of Common Stock to such number of shares as
shall be sufficient for such purposes.
3.2 NO IMPAIRMENT. Except and to the extent as waived or
consented to by the Holder, the Company will not, by amendment of its
Articles of Incorporation or through any reorganization, transfer of assets,
consolidation, merger, dissolution, issue or sale of securities or any other
voluntary action, avoid or seek to avoid the observance or performance of any
of the terms to be observed or performed hereunder by the Company, but will
at all times in good faith assist in the carrying out of all the provisions
of this Warrant and in the taking of all such action as may be necessary or
appropriate in order to protect the exercise rights of the Holder against
impairment.
3.3 NOTICES OF RECORD DATE. In the event of any taking by the
Company of a record of the holders of any class of securities for the purpose
of determining the holders thereof who are entitled to receive any dividend
(other than a cash dividend which is the same as cash dividends paid in
previous quarters) or other distribution, the Company shall mail to the
Holder, at least ten (10) days prior to the date specified herein, a notice
specifying the date on which any such record is to be taken for the purpose
of such dividend or distribution.
4. REPRESENTATIONS OF HOLDER.
4.1 ACQUISITION OF WARRANT FOR PERSONAL ACCOUNT. The Holder
hereby represents and warrants that it is acquiring the Warrant solely for
its account for investment and not with a view to or for sale or distribution
of said Warrant or any part thereof. The Holder further represents and
warrants that the entire legal and beneficial interests of the Warrant and
Exercise Shares the Holder is acquiring is being acquired for, and will be
held for, its account only, and that the Holder has no present intention of
distributing or reselling any such interests of the Warrant or Exercise
Shares.
4.2 PROTECTION OF OWN INTEREST. The Holder hereby represents and
warrants that it is aware of the Company's business affairs and financial
condition and has acquired sufficient information about the Company to reach
an informed and knowledgeable decision regarding its investment in the
Company. The Holder represents that it is experienced in making investments
of this type and has such knowledge and background in financial and business
matters that the Holder is capable of evaluating the merits and risks of this
investment and protecting the Holder's own interests.
4.3 SECURITIES ARE NOT REGISTERED.
(A) The Holder understands that the Warrant and the
Exercise Shares have not been registered under the Securities Act of 1933, as
amended (the "SECURITIES ACT"). The Holder realizes that the basis for an
exemption may not be present if, notwithstanding its representations, the
Holder has a present intention of acquiring the securities for a fixed or
determinable period in the future, selling (in connection with a distribution
or otherwise), granting any participation in, or otherwise distributing the
securities. The Holder represents that it has no such present intention.
***CONFIDENTIAL TREATMENT REQUESTED
(B) The Holder recognizes that the Warrant and the Exercise
Shares must be held indefinitely unless they are subsequently registered
under the Securities Act or an exemption from such registration is available.
The Holder recognizes that the Company has no obligation to register the
Warrant or the Exercise Shares of the Company, or to comply with any
exemption from such registration.
(C) The Holder is aware that neither the Warrant nor the
Exercise Shares may be sold pursuant to Rule 144 adopted under the Securities
Act unless certain conditions are met, including, among other things, the
existence of a public market for the shares, the availability of certain
current public information about the Company, the resale following the
required holding period under Rule 144 and the number of shares being sold
during any three month period not exceeding specified limitations.
4.4 ACCREDITED INVESTOR. The Holder hereby represents and
warrants that it is an accredited investor within the meaning of Regulation
D under the Securities Act.
4.5 DISPOSITION OF WARRANT AND EXERCISE SHARES.
(A) The Holder further agrees not to make any disposition
of all or any part of the Warrant or Exercise Shares in any event unless and
until:
(I) The Company shall have received a letter
secured by the Holder from the Securities and Exchange Commission stating
that no action will be recommended to the Commission with respect to the
proposed disposition; or
(II) There is then in effect a registration
statement under the Securities Act covering such proposed disposition and
such disposition is made in accordance with said registration statement; or
(III) The Holder shall have notified the Company of
the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and if
such proposed disposition is to be made under Rule 144 under the Securities
Act, a broker's representation letter and a Form 144, if applicable, such
that an opinion of the Company's counsel can be provided to the Company or
the Company's transfer agent; or if pursuant to any other exemption, the
Holder shall have furnished the Company with an opinion of counsel,
reasonably satisfactory to the Company, to the effect that such disposition
will not require registration of such Warrant or Exercise Shares under the
Securities Act or any applicable state securities laws.
(B) The Holder understands and agrees that all
certificates evidencing the shares to be issued to the Holder may bear the
following legend:
THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THEY MAY NOT
BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE
SECURITIES UNDER THE SECURITIES ACT OR
***CONFIDENTIAL TREATMENT REQUESTED
AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED.
5. ADJUSTMENT OF EXERCISE PRICE. In the event of changes in the
outstanding Common Stock of the Company by reason of stock dividends,
split-ups, recapitalizations, reclassifications, combinations or exchanges of
shares, separations, reorganizations, liquidations, or the like, the number
and class of shares available under the Warrant in the aggregate and the
Exercise Price shall be correspondingly adjusted to give the Holder of the
Warrant, on exercise for the same aggregate Exercise Price, the total number,
class, and kind of shares as the Holder would have owned had the Warrant been
exercised prior to the event and had the Holder continued to hold such shares
until after the event requiring adjustment; provided, however, that
notwithstanding this Section 5, the events described in Section 7, shall be
governed by Section 7. The form of this Warrant need not be changed because
of any adjustment in the number of Exercise Shares subject to this Warrant.
6. FRACTIONAL SHARES. No fractional shares shall be issued upon
the exercise of this Warrant as a consequence of any adjustment pursuant
hereto. All Exercise Shares (including fractions) issuable upon exercise of
this Warrant may be aggregated for purposes of determining whether the
exercise would result in the issuance of any fractional share. If, after
aggregation, the exercise would result in the issuance of a fractional share,
the Company shall, in lieu of issuance of any fractional share, pay the
Holder otherwise entitled to such fraction a sum in cash equal to the product
resulting from multiplying the then current fair market value of an Exercise
Share by such fraction.
7. MERGER OR ASSET SALE. In the event of a merger of the Company
with or into another corporation during the Exercise Period, or the sale of
substantially all of the assets of the Company during the Exercise Period,
this Warrant shall be assumed or an equivalent warrant substituted by the
successor corporation or a parent or subsidiary of the successor corporation.
In the event that the successor corporation refuses to assume or substitute
for the Warrant, the Company shall notify the Holder in writing or
electronically that the Warrant shall be exercisable for a period of fifteen
(15) days from the date of such notice, and the Warrant shall terminate upon
the expiration of such period. For the purposes of this paragraph, the
Warrant shall be considered assumed if, following such merger or sale of
assets, the warrant confers the right to purchase or receive, for each
Exercise Share subject to the Warrant immediately prior to the merger or sale
of assets, the consideration (whether stock, cash, or other securities or
property) received in the merger or sale of assets by holders of common stock
of the Company for each share of common stock of the Company held on the
effective date of the transaction (and if holders were offered a choice of
consideration, the type of consideration chosen by the holders of a majority
of the outstanding common stock of the Company); provided, however, that if
such consideration received in the merger or sale of assets is not solely
common stock of the successor corporation or its parent, the Company may,
with the consent of the successor corporation, provide for the consideration
to be received upon the exercise of the Warrant, for each Exercise Share
subject to the Warrant, to be solely common stock of the successor
corporation or its parent equal in fair market value to the per share
consideration received by holders of common stock of the Company in the
merger or sale of assets.
***CONFIDENTIAL TREATMENT REQUESTED
8. NO STOCKHOLDER RIGHTS. This Warrant in and of itself shall
not entitle the Holder to any voting rights or other rights as a stockholder
of the Company.
9. TRANSFER OF WARRANT. Subject to applicable laws, the
restriction on transfer set forth on the first page of this Warrant, this
Warrant and all rights hereunder are transferable, by the Holder to any
stockholder or officer of Holder or immediate family member of Holder, upon
delivery of this Warrant and the form of assignment attached hereto of the
transferee designated by Holder. THE TRANSFEREE SHALL SIGN AN INVESTMENT
LETTER IN FORM AND SUBSTANCE SATISFACTORY TO THE COMPANY.
10. LOST, STOLEN, MUTILATED OR DESTROYED WARRANT. If this Warrant
is lost, stolen, mutilated or destroyed, the Company may, on such terms as to
indemnity or otherwise as it may reasonably impose (which shall, in the case
of a mutilated Warrant, include the surrender thereof), issue a new Warrant
of like denomination and tenor as the Warrant so lost, stolen, mutilated or
destroyed. Any such new Warrant shall constitute an original contractual
obligation of the Company, whether or not the allegedly lost, stolen,
mutilated or destroyed Warrant shall be at any time enforceable by anyone.
11. NOTICES, ETC. All notices and other communications required
or permitted hereunder shall be in writing and shall be sent by telex,
telegram, express mail or other form of rapid communications, if possible,
and if not then such notice or communication shall be mailed by first-class
mail, postage prepaid, addressed in each case to the party entitled thereto
at the following addresses: (a) if to the Company, to Cymer, Inc. Attention:
Chief Executive Officer, 00000 Xxx Xxx Xxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx
00000-0000, and (b) if to the Holder, at
_____________________________________________, or at such other address as
one party may furnish to the other in writing. Notice shall be deemed
effective on the date dispatched if by personal delivery, telecopy, telex or
telegram, two days after mailing if by express mail, or three days after
mailing if by first-class mail.
12. ACCEPTANCE. Receipt of this Warrant by the Holder shall
constitute acceptance of and agreement to all of the terms and conditions
contained herein.
13. GOVERNING LAW. This Warrant and all rights, obligations and
liabilities hereunder shall be governed by the laws of the State of
California.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
***CONFIDENTIAL TREATMENT REQUESTED
IN WITNESS WHEREOF, the Company has caused this WARRANT to be
executed by its duly authorized officer as of May ___, 2001.
CYMER, INC.
By:
------------------------------------
Xxxxxx X. Xxxxx
Chief Executive Officer
AGREED AND ACCEPTED BY:
[-----------------------------]
By:
------------------------------
Name:
----------------------------
Title:
----------------------------
***CONFIDENTIAL TREATMENT REQUESTED
NOTICE OF EXERCISE
TO: CYMER, INC.
(1) |_| The undersigned hereby elects to purchase ________ shares of
the Common Stock of Cymer, Inc. (the "COMPANY") pursuant to the terms of the
attached Warrant, and tenders herewith payment of the exercise price in full,
together with all applicable transfer taxes, if any.
|_| The undersigned hereby elects to purchase ________ shares of
the Common Stock of Cymer, Inc. (the "COMPANY") pursuant to the terms of the
net exercise provisions set forth in Section 2.1 of the attached Warrant, and
shall tender payment of all applicable transfer taxes, if any.
(2) Please issue a certificate or certificates representing said
shares of Common Stock of the Company in the name of the undersigned or in
such other name as is specified below:
------------------------
(Name)
========================
(Address)
(3) The undersigned represents that (i) the aforesaid shares of
Common Stock are being acquired for the account of the undersigned for
investment and not with a view to, or for resale in connection with, the
distribution thereof and that the undersigned has no present intention of
distributing or reselling such shares; (ii) the undersigned is aware of the
Company's business affairs and financial condition and has acquired
sufficient information about the Company to reach an informed and
knowledgeable decision regarding its investment in the Company; (iii) the
undersigned is experienced in making investments of this type and has such
knowledge and background in financial and business matters that the
undersigned is capable of evaluating the merits and risks of this investment
and protecting the undersigned's own interests; (iv) the undersigned
understands that the shares of Common Stock issuable upon exercise of this
Warrant have not been registered under the Securities Act of 1933, as amended
(the "Securities Act"), by reason of a specific exemption from the
registration provisions of the Securities Act, which exemption depends upon,
among other things, the bona fide nature of the investment intent as
expressed herein, and, because such securities have not been registered under
the Securities Act, they must be held indefinitely unless subsequently
registered under the Securities Act or an exemption from such registration is
available; (v) the undersigned is aware that the aforesaid shares of Common
Stock may not be sold pursuant to Rule 144 adopted under the Securities Act
unless certain conditions are met and until the undersigned has held the
shares for the number of years prescribed by Rule 144, that among the
conditions for use of the Rule is the availability of current information to
the public about the Company and the Company has not made such information
available and has no present plans to do so; and (vi) the undersigned agrees
not to make any disposition of all or any part of the aforesaid shares of
Common Stock unless and until there is then in effect a registration
statement under the Securities Act covering such proposed disposition and
such disposition is made in accordance with said registration statement, or
the undersigned has provided the Company with an opinion of counsel
satisfactory to the Company, stating that such registration is not required.
---------------------------- -------------------------
(Date) (Signature)
-------------------------
(Print name)
***CONFIDENTIAL TREATMENT REQUESTED
ASSIGNMENT FORM
(TO ASSIGN THE FOREGOING WARRANT, EXECUTE THIS FORM
AND SUPPLY REQUIRED INFORMATION, AND A DULY EXECUTED
INVESTMENT REPRESENTATION LETTER IN THE FORM PROVIDED
BY CYMER, INC. DO NOT USE THIS FORM TO PURCHASE
SHARES.)
FOR VALUE RECEIVED, the foregoing Warrant and all rights evidenced
thereby are hereby assigned to
Name:
-------------------------------------------------------------------------
(Please Print)
Address:
----------------------------------------------------------------------
(Please Print)
Dated: _________, 20__
Holder's
Signature:
-----------------------------------------------------------
Holder's
Address:
-------------------------------------------------------------
NOTE: The signature to this Assignment Form must correspond with the name as
it appears on the face of the Warrant, without alteration or enlargement or
any change whatever. Officers of corporations and those acting in a fiduciary
or other representative capacity should file proper evidence of authority to
assign the foregoing Warrant.
***CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE 1.9
LICENSED PATENTS
***CONFIDENTIAL TREATMENT REQUESTED
--------------------------------------------- ------------------------------- --------------------- ------------------
NAME/INVENTOR FILING DATE PATENT NUMBER ISSUE DATE
--------------------------------------------- ------------------------------- --------------------- ------------------
[...***...] [...***...] [...***...] [...***...]
--------------------------------------------- ------------------------------- --------------------- ------------------
[...***...] [...***...] [...***...] [...***...]
--------------------------------------------- ------------------------------- --------------------- ------------------
[...***...] [...***...] [...***...] [...***...]
--------------------------------------------- ------------------------------- --------------------- ------------------
[...***...] [...***...] [...***...] [...***...]
--------------------------------------------- ------------------------------- --------------------- ------------------
[...***...] [...***...] [...***...] [...***...]
--------------------------------------------- ------------------------------- --------------------- ------------------
[...***...] [...***...] [...***...]
--------------------------------------------- ------------------------------- --------------------- ------------------
[...***...] [...***...] [...***...]
--------------------------------------------- ------------------------------- --------------------- ------------------
[...***...] [...***...] [...***...] [...***...]
--------------------------------------------- ------------------------------- --------------------- ------------------
***CONFIDENTIAL TREATMENT REQUESTED
Exhibit 10.2 Continued
*** TEXT OMMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
Under 17 C.F.R. Sections 200.80(b)(4),
200.83 and 240.24b-2
PATENT SUBLICENSE
AGREEMENT
THIS PATENT SUBLICENSE AGREEMENT ("Sublicense Agreement"), made as
of this 14th day of May, 2001 (the "Effective Date"), by and between SCIENCE
RESEARCH LABORATORY, INC., a
Massachusetts corporation with principal offices
at 00 Xxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 ("SRL") and CYMER, INC., a
Nevada corporation, with principal offices at 00000 Xxx Xxx Xxxxx Xxxxx, Xxx
Xxxxx Xxxxxxxxxx 00000 ("Cymer").
WHEREAS, Cymer has exclusively licensed by separate agreement dated
May 8, 2001 (the "
Patent License Agreement") the rights to certain issued
patents, patent applications, trade secrets, confidential information and
know-how with respect to (i) [...***...] power devices with specialized
circuits useful in powering certain lasers and [...***...] (defined below),
and (ii) [...***...]light sources useful in Lithography and Metrology
(defined below) which have been exclusively licensed to Cymer; and
WHEREAS, Cymer is willing to sublicense to SRL certain rights in
order for SRL to develop certain technologies in the Field of Use and to
provide certain rights of first negotiation to Cymer subject to the terms and
conditions set forth below.
NOW, THEREFORE, for and in consideration of the premises, covenants,
conditions, and undertakings hereinafter set forth, the parties hereto agree
as follows:
ARTICLE I
DEFINITIONS
1.1 [...***...]
1.2 DUV shall mean the deep ultraviolet region of the
electromagnetic spectrum with wavelengths, referenced to vacuum, ranging from
150 nanometers ("nm") up to but not exceeding 250nm.
1.3 EUV shall mean the extreme ultraviolet region of the
electromagnetic spectrum with wavelengths, referenced to vacuum, ranging from
10nm up to but not exceeding 50nm.
1.4 FIELD OF USE shall mean all applications of the Sublicensed
Technology except applications for use as Light Sources operating in the DUV,
EUV, VUV, and Soft X-ray wavelengths of the spectrum for Lithography (defined
below), Metrology (defined below) and/or [...***...] applications (defined
below).
1.5 [...***...]
1.6 FURTHER SUBLICENSEE shall mean any unrelated third-party to
whom SRL grants or has granted, directly or indirectly, a right to
manufacture, have manufactured, use and/or market, distribute or sell the
Product(s).
1.7 LASER-DRIVEN LIGHT SOURCE shall mean any light source in
which more that 95% of the power and energy needed to produce the light comes
from a pulsed laser.
1.8 LIGHT SOURCE shall mean any source of electromagnetic
radiation whether coherent or incoherent, whether a laser or a lamp.
1.9 LITHOGRAPHY shall mean the art of transferring a spatial
pattern from a reference mask to the surface of a wafer and/or to the surface
of membranes to be made into masks and reticles.
***CONFIDENTIAL TREATMENT REQUESTED
1.10 METROLOGY shall mean the art of measuring distances or
surface topology.
1.11 PRODUCT(S) shall mean any product in the Field of Use.
1.12 SOFT X-RAY shall mean that region of the electromagnetic
spectrum ranging from 0.5 nm up to but not exceeding 3.0 nm.
1.13 SUBLICENSED TECHNOLOGY shall mean all confidential
information, trade secrets, know-how, methods or processes and other
materials, tangible and non-tangible, including, but not limited to:
technical and non-technical data and information, drawings, sketches, plans,
diagrams, specifications and/or other documents or materials containing said
information and data licensed by Cymer under the
Patent License Agreement in
the Field of Use as well as any Cymer Invention (as defined in the Patent
License) or Cymer's rights under any Joint Invention (as defined in the
Patent License).
1.14 SUBLICENSED PATENTS shall mean the patents or patent
applications (i) which have been licensed to Cymer under the
Patent License
Agreement; and (ii) which, in the absence of the rights being granted under
this Sublicense Agreement by Cymer to SRL would be infringed by the
manufacture, sale or use of the Product(s) (as defined herein) at any time
during the Term of this Sublicense Agreement. Specifically excluded from this
definition of Sublicensed Patents are claims relating to light sources
operating at Soft X-ray wavelengths, in which the energy put into the light
source on each pulse is less than 200 Joules per pulse.
1.15 VUV shall mean vacuum ultraviolet wavelengths in the region
of the electromagnetic spectrum ranging from 120nm up to but not exceeding
150nm.
1.16 TERM shall have the meaning as set forth in Section 6.1 below.
ARTICLE II
GRANT OF SUBLICENSE
2.1 Cymer hereby grants to SRL (i) an irrevocable (except in
accordance with Section 6.1.3 and 6.2) exclusive, worldwide, royalty-free
sublicense, with right to further sublicense pursuant to Section 2.3: (x) to
use the Sublicensed Technology for the purpose of making, having made,
selling or having sold Products in the Field of Use; and (y) under the
Sublicensed Patents to make, have made, use and sell the Product(s) in the
Field of Use.
2.2 SRL shall obtain or retain no rights of any kind in the
Sublicensed Patents or the Sublicensed Technology except as specifically set
forth in this Sublicense Agreement, or as specifically stated in the
Patent
License Agreement.
2.3 Upon the consent of Cymer, which shall not be unreasonably
withheld, SRL shall have the right to further sublicense the Sublicensed
Technology and Sublicensed Patents. SRL shall provide Cymer with a
significantly completed draft of each further sublicense agreement just prior
to its execution; provided, however, that Cymer shall have no right to object
to any term or condition of such sublicense. SRL agrees to require its
Further Sublicensees to maintain the same confidentiality obligations as
required of SRL pursuant to Article 8, below.
2.4 In consideration of the rights and licenses granted
hereunder, SRL agrees to pay to Cymer a sublicense fee in the amount of
[...***...] due on the signing of this Sublicense Agreement, receipt of which
is hereby acknowledged.
ARTICLE III
IMPROVEMENTS, INVENTIONS AND RIGHT OF FIRST NEGOTIATION
3.1 The parties' respective rights of ownership with respect to
improvements and inventions shall be as set forth in Article III of the
Patent License.
***CONFIDENTIAL TREATMENT REQUESTED
3.2 At least sixty (60) days prior to SRL entering into material
and substantial negotiations to grant to a third party a license or
sublicense in the Field of Use, SRL agrees to notify Cymer in writing,
together with a summary description of the technology and field of use to be
proposed that would be the subject of such negotiations ("Initial Notice").
Upon request by Cymer following its receipt of such Initial Notice, SRL and
Cymer shall discuss the terms and conditions under which SRL would grant such
rights to Cymer. In the event that the parties have not agreed upon such
terms and conditions pursuant to which such rights and license would be
granted to Cymer within sixty (60) days after the date SRL provided the
Initial Notice to Cymer, SRL shall be free to grant to any third party the
right to make, have made, use and sell any products covered by such
technology in the Field of Use, without further obligations to Cymer, and on
any terms that SRL considers appropriate. It is understood that, because SRL
will be providing the Initial Notice to Cymer prior to the commencement of
material and substantial negotiations with a third party, SRL may not be able
to define the entire or exact scope of the rights or field to be granted, and
accordingly, so long as the Initial Notice describes a field or rights that
overlap with the field or rights actually negotiated with, or granted to, a
third party, SRL shall be deemed to have satisfied its obligations, under
this Section 3.2. In addition, it is understood that SRL need only provide
one such Initial Notice hereunder before engaging in such material and
substantial negotiations with the first third party, and that SRL is not
obligated to provide any further notice if SRL subsequently engages in
discussions with more than one third party with respect to the subject matter
described in the Initial Notice.
ARTICLE IV
PATENT PROSECUTION AND INFRINGEMENT
4.1 Cymer agrees that it shall, at its own expense, prepare,
file, prosecute and maintain the Sublicensed Patents, in such countries as
Cymer deems appropriate, and shall be responsible for conducting any
interferences, re-examinations, reissues, oppositions or requests for patent
term extensions relating to the Sublicensed Patents. SRL shall cooperate
fully in the preparation, filing and prosecution of any Sublicensed Patents
under this Agreement. Notwithstanding the foregoing, Cymer shall not take any
such action that could adversely affect a patent or application owned by SRL,
unless such action is mutually agreed by the parties. Cymer shall provide SRL
with sufficient written notice of any decision not to prepare, file,
prosecute and maintain any Sublicensed Patent so that SRL may take such
action on its own.
4.2 Each party will promptly notify the other party of any
written claim received by it alleging infringement by a Product of the
proprietary rights or patents of a third-party. Cymer shall assume the
defense of any action relating to any such allegation of patent infringement.
4.3 Each party will promptly notify the other party hereto of the
possible infringement by a third-party of a Product or any of the Sublicensed
Technology or Sublicensed Patents comprising a Product. Cymer shall have the
sole right to take any action it deems necessary, at its sole cost and
expense, with respect to any infringement of a Product or the Sublicensed
Patents.
4.4 Within the Field of Use, if Cymer fails to bring an
infringement action as provided in Section 4.3 above within sixty (60) days
after notice of alleged infringement, SRL shall be permitted to take any
action it deems necessary, at its sole cost and expense, with respect to any
infringement of a Product or the Sublicensed Patents or the Sublicensed
Technology.
4.5 If either party brings an infringement action under this
Agreement, the other party shall cooperate fully, including if required to
bring such action, the furnishing of a power of attorney.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
5.1 CYMER. Cymer represents and warrants that: (i) it has full
power to enter into this Sublicense Agreement; (ii) it has not previously
granted and will not grant any rights in conflict with the rights and
licenses granted herein; (iii) it has obtained all necessary corporate
approvals to enter and execute into this Sublicense
***CONFIDENTIAL TREATMENT REQUESTED
Agreement; and (iv) it shall fully comply with the requirements of any and
all applicable federal, state, local and foreign laws, regulations, rules and
orders of any governmental body having jurisdiction over the activities
contemplated by this Sublicense Agreement.
5.2 SRL. SRL represents and warrants that: (i) it has full power
to enter into this Sublicense Agreement; (ii) it has obtained all necessary
corporate approvals to enter and execute into this Sublicense Agreement; and
(iii) it shall fully comply with the requirements of any and all applicable
federal, state, local and foreign laws, regulations, rules and orders of any
governmental body having jurisdiction over the activities contemplated by
this Sublicense Agreement.
5.3 DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
SUBLICENSE AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR EXTENDS ANY
WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED
TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT, OR VALIDITY OF ANY PATENTS ISSUED OR PENDING.
ARTICLE VI
TERM AND TERMINATION
6.1 TERM. This Sublicense Agreement shall become effective as of
the Effective Date and, unless earlier terminated pursuant to the other
provisions of this Article 6, shall continue until it expires as follows (the
"Term):
6.1.1 PRODUCTS. As to each Product, in each country,
worldwide, unless earlier terminated in accordance with this Article 6, on
the date that neither the manufacture, sale nor use of such Product would be
covered by a Sublicensed Patent in such country.
6.1.2 ENTIRE AGREEMENT. This Sublicense Agreement shall
expire in its entirety upon the expiration of this Sublicense Agreement with
respect to all Products in all countries, worldwide.
6.1.3 TERMINATION OF PATENT SUBLICENSE. This Sublicense
Agreement shall expire in its entirety upon the termination for any reason,
or expiration of the
Patent License Agreement with respect to all Products,
in all countries, worldwide.
6.2 TERMINATION FOR CAUSE. Notwithstanding the language contained
in Section 6.1, this Sublicense Agreement may be terminated by a party if, at
any time during the Term, the other party is in breach of any term or
condition of this Sublicense Agreement and fails to remedy the breach within
sixty (60) days after being given written notice thereof.
6.3 CONTINUING OBLIGATIONS; SURVIVAL. It is understood that
termination or expiration of this Sublicense Agreement shall not relieve a
party from any obligation or liability which, at the time of such termination
or expiration, has already accrued to the other party. The provisions of
Sections 2.2, 3.2, 6.3, 6.4 and Articles 1, 4, 5, 7, 8, 10 and 11 shall
survive the termination of this Sublicense Agreement for any reason. Except
as otherwise expressly provided in this Article 6, all other rights and
obligations of the parties shall terminate upon termination of this
Sublicense Agreement.
6.4 SUBLICENSED TECHNOLOGY. Upon termination of this Sublicense
Agreement for any reason, all Sublicensed Technology including any
improvements, designs, drawings, formulas or other data, photographs,
samples, literature, and sales and promotional aids of every kind relating to
the Products and received from or owned by Cymer shall remain the property of
Cymer subject to the terms of the
Patent License Agreement. Within fifteen
(15) days of the termination of this Sublicense Agreement, SRL shall return
all tangible items bearing, containing, or contained in, any of the
foregoing, in its possession or control, as Cymer may direct, at Cymer's
expense. Effective upon termination of this Sublicense Agreement, SRL shall
immediately cease (i) promoting, selling and/or distributing the Products;
and (ii) use of all Sublicensed Technology and the Sublicensed Patents.
***CONFIDENTIAL TREATMENT REQUESTED
ARTICLE VII
INDEMNIFICATION
7.1 INDEMNIFICATION BY SRL. SRL shall indemnify, defend and hold
harmless Cymer, its directors, officers, employees, agents, successors and
assigns from and against all liabilities, expenses or costs (including
reasonable attorneys' fees and court costs) arising out of any claim,
complaint, suit, proceeding or cause of action against any of them by a
third-party alleging (i) the negligent or intentionally wrongful acts or
omissions of SRL; (ii) any breach by SRL of any of its representations or
warranties set forth in Article V of this Sublicense Agreement; or (iii)
breach of any warranty relating to the Products including, but not limited to
defects in design, manufacturing or claims under any theory of product
liability.
7.2 INDEMNIFICATION BY CYMER. Cymer shall indemnify, defend and
hold harmless SRL, its directors, officers, employees, agents, successors and
assigns from and against all liabilities, expenses, and costs (including
reasonable attorneys' fees and court costs) arising out of any claim,
complaint, suit, proceeding or cause of action against any of them by a
third-party alleging (i) the negligent or intentionally wrongful acts or
omissions of Cymer; or (ii) any breach by Cymer of any of its representations
or warranties set forth in Article V of this Sublicense Agreement.
7.3 INDEMNIFICATION PROCEDURE. A party that intends to claim
indemnification (the "Indemnitee") under this Article 7 shall promptly notify
the indemnifying party (the "Indemnitor") in writing of any third party
claim, suit or proceeding or cause of action included within the
indemnification described in this Article 7, above (each a "Claim") with
respect to which the Indemnitee intends to claim such indemnification, and
the Indemnitor shall have sole control of the defense and/or settlement
thereof; provided that the Indemnitee shall have the right to participate, at
its own expense, with counsel of its own choosing in the defense and/or
settlement of such Claim. The indemnification under this Article 7 shall not
apply to amounts paid in settlement of any Claim if such settlement is
effected without the consent of the Indemnitor. The Indemnitee under this
Article 7, and its employees, at the Indemnitor's request and expense,
provide full information and reasonable assistance to Indemnitor and its
legal representatives with respect to such Claims.
ARTICLE VIII
CONFIDENTIALITY
8.1 CONFIDENTIAL INFORMATION. The parties may from time to time
disclose to each other Confidential Information in connection with this
Agreement. "Confidential Information" shall mean any information disclosed by
one party to the other party which information is not generally known to the
public and may include by way of example, but without limitation (a)
information concerning the disclosing party's management, financial
condition, financial operations, purchasing activities, costs of products,
sales activities, marketing activities and business plans, (b) information
concerning or resulting from the disclosing party's research and development
work, including, but not limited to, improvements, discoveries, inventions
and new product ideas, (c) information of the disclosing party concerning
actual or potential vendors or customers, (d) the disclosing party's computer
programs, including source code, object code, algorithms, methods, structure
and related information including diagrams, flow charts, designs,
specifications, manuals, descriptions, instructions, explanations and
improvements, and (e) information concerning the disclosing party's products,
including plans, blueprints, parts and assembly drawings, specifications,
descriptions, designs, diagrams, dimensions, tolerances, parts and
components, in each case, whether delivered orally, in writing,
electronically or through any other media. Notwithstanding the foregoing or
anything herein to the contrary, Confidential Information shall not include
any information that, in each case the receiving party can prove by written
documentation: (i) was already known to the receiving party, other than under
an obligation of confidentiality, at the time of disclosure; (ii) was
generally available to the public or otherwise part of the public domain at
the time of its disclosure to the receiving party; (iii) became generally
available to the public or otherwise part of the public domain after its
disclosure and other than through any act or omission of the receiving party
in breach of this Sublicense Agreement; (iv) was subsequently disclosed to
the receiving party by a person other than the disclosing party who was not
bound by any confidentiality obligation; or (v) was developed entirely
***CONFIDENTIAL TREATMENT REQUESTED
independently by the receiving party without use of, reliance on, or
reference to the Confidential Information of the other party.
8.2 CONFIDENTIALITY. Each party agrees to protect, hold and
maintain in strict confidence all Confidential Information of the other party
for a period of ten (10) years from the date of disclosure. Without limiting
the foregoing, neither party shall use or disclose the Confidential
Information of the other party, except as otherwise permitted by this
Sublicense Agreement or as may be necessary or useful to exercise its rights
or perform its obligations under this Sublicense Agreement provided that
employees, agents, and representatives of the receiving party shall be given
access to Confidential Information only on a need-to-know basis and only if
they are bound by obligations of confidentiality comparable to those
contained herein. Nothing contained in this Article 8 shall prevent either
party from disclosing any Confidential Information of the other party to (a)
accountants, lawyers or other professional advisors or in connection with a
merger, acquisition or securities offering, subject in each case to the
recipient entering into an agreement to protect such Confidential Information
from disclosure; or (b) is required by law or regulation to be disclosed;
provided, however, that the party subject to such disclosure requirement has
provided written notice to the other party promptly upon receiving notice of
such requirement in order to enable the other party to seek a protective
order or otherwise prevent disclosure of such Confidential Information.
ARTICLE IX
NON-SOLICITATION
9.1 During the Term of this Sublicense Agreement, neither party
shall contact, divert, or influence, or attempt to divert or influence any
personnel of the other for purposes of providing employment to such personnel
without the prior written consent of the current employer. In the event that
either party breaches this non-solicitation covenant and hires (the "New
Employer") an employee or consultant who, within the six (6) months
immediately preceding the date of hire by the New Employer, was employed by
the other party (the "Prior Employer"), the New Employer shall pay to the
Prior Employer as compensation for the loss of the employee/consultant, three
(3) times the first year's total compensation being paid by the New Employer
to the employee/consultant.
9.2 All payments due hereunder shall be made, in-full, within
thirty(30) days of the first day the employee/consultant provides services to
the New Employer.
ARTICLE X
LIMITATION OF LIABILITY
EXCEPT FOR BREACH OF SECTION 8, NEITHER PARTY, TO THE MAXIMUM EXTENT
PERMITTED BY APPLICABLE LAW, SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FROM
ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), FOR ANY INDIRECT, CONSEQUENTIAL,
INCIDENTAL, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION,
DAMAGES FOR LOSS OF PROFITS, REVENUES, SAVINGS, BUSINESS INTERRUPTION AND THE
LIKE) UNDER OR RELATING TO THIS AGREEMENT, EVEN IF SUCH OTHER PARTY HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE XI
MISCELLANEOUS
11.1 NOTICES. All notices required or permitted hereunder shall be
given in writing and sent by facsimile transmission (with confirmation of
receipt), or mailed postage prepaid, certified or registered mail, return
receipt requested, or sent by a nationally recognized express courier
service, or hand-delivered at the following address:
***CONFIDENTIAL TREATMENT REQUESTED
To SRL: Science Research Laboratory, Inc.
00 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn.: Xx. Xxxxx Xxxxx, President
Facsimile: (000) 000 0000
To Cymer: Cymer, Inc.
00000 Xxx Xxx Xxxxx Xxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Attn.: Xx. Xxxxxx X. Xxxxx, CEO
Facsimile:
All notices shall be deemed made upon receipt by the addressee as evidenced
by the applicable written receipt or, in the case of a facsimile, as
evidenced by the confirmation of transmission.
11.2 PUBLIC ANNOUNCEMENTS.
11.2.1 Subject to Section 11.2.2, all publicity, press
releases and other announcements relating to this Sublicense Agreement or the
transaction contemplated hereby shall be reviewed in advance by, and be
subject to the approval of, both parties; provided, however, that either
party may, without the consent of the other, (i) disclose the existence and
general subject matter of this Sublicense Agreement without the other party's
approval and (ii) subject to Article 8 disclose the terms of this Sublicense
Agreement as required to comply with applicable securities laws. Any party
that determines applicable securities laws require it to file this Sublicense
Agreement shall first provide the other party a copy of the redacted version
it intends to file and shall provide the other party the opportunity to
comment thereon. Notwithstanding the foregoing, the filing party will make
the final decisions regarding the version hereof to file.
11.2.2 Subject to Article 8, any party that determines
applicable securities laws require it to disclose publicly (i) non-financial
information with respect to its relationship to the other party or (ii) any
aspect of the other party's business, shall first provide the other party a
copy of the disclosure it intends to disclose and shall provide the other
party the opportunity to comment thereon. Notwithstanding the foregoing, the
disclosing party will have final decision-making authority with respect to
its disclosures.
11.3 CAPTIONS AND SECTION REFERENCES. The titles, headings or
captions in this Sublicense Agreement do not define, limit, extend, explain
or describe the scope or extent of this Sublicense Agreement or any of its
terms or conditions and therefore shall not be considered in the
interpretations, construction or application of this Sublicense Agreement.
11.4 SEVERABILITY. Whenever possible, each clause, subclause,
provision or condition of this Sublicense Agreement shall be interpreted in
such manner as to be effective and valid under applicable law, but if any
clause, subclause, provision or condition of this Sublicense Agreement should
be prohibited or invalid under applicable law, such clause, subclause,
provision or condition shall be considered separate and severable from this
Sublicense Agreement to the extent of such prohibition or invalidity without
invalidating the remaining clauses, subclauses, provisions and conditions of
this Sublicense Agreement, so long as the remaining Sublicense Agreement
reflects the economic intentions of the parties as evidenced by this
Sublicense Agreement as a whole.
11.5 ENTIRE AGREEMENT. Except for the January 1995 Agreement and
the
Patent License Agreement, this Sublicense Agreement (including Exhibits,
Schedules and documents attached or delivered pursuant hereto) embodies the
entire agreement and understanding of the parties hereto in relation to the
subject matter hereof and supersedes any and all prior understandings and
agreements, whether written or oral in regard to such matters. The January
1995 Agreement shall remain in full force and effect, except to the extent,
if any, that it is superseded and/or amended by the provisions of this
Sublicense Agreement. If there is any conflict between this Sublicense
Agreement and the January 1995 Agreement, the provisions of this Sublicense
Agreement shall control.
***CONFIDENTIAL TREATMENT REQUESTED
11.6 AMENDMENT. No amendment, change or modification of any of
the terms, provisions or conditions of this Sublicense Agreement shall be
effective unless made in writing and signed on behalf of the parties hereto
by their duly authorized representatives.
11.7 COUNTERPARTS. This Sublicense Agreement may be executed in
one or more counterparts, by facsimile, or both, each of which shall be
deemed to be an original document, but all such separate counterparts shall
constitute only one and the same Sublicense Agreement.
11.8 WAIVER. No waiver of any term, provision or condition of
this Sublicense Agreement, whether by conduct or otherwise, in any one or
more instances, shall be deemed to be or construed as a further or continuing
waiver of any such or other term, provision or condition of this Sublicense
Agreement.
11.9 BINDING AGREEMENT; SUCCESSION. This Sublicense Agreement
shall be binding upon and shall inure to the benefit of the parties and their
respective successors and permitted assigns. Neither party may assign this
Sublicense Agreement without the prior written approval of the other party
which approval shall not be unreasonably withheld or delayed; provided,
however, that either party may assign this Sublicense Agreement without the
prior written approval of the other party in connection with the acquisition
of such party by, or merger of such party with or into, a third party or the
sale of substantially all of such party's assets.
11.10 INDEPENDENT CONTRACTORS. The relationship of SRL and Cymer
established by this Sublicense Agreement is that of independent contractors.
Nothing in this Sublicense Agreement shall be construed to create any other
relationship between SRL and Cymer. Neither party shall have any right, power
or authority to assume, create or incur any expense, liability or obligation,
express or implied, on behalf of the other.
11.11 GOVERNING LAW. This Sublicense Agreement shall be
interpreted under and enforced in accordance with the laws of the State of
Massachusetts.
IN WITNESS WHEREOF, the parties have caused this Sublicense
Agreement to be executed as of the day and year first above written.
SCIENCE RESEARCH LABORATORY, INC. CYMER, INC.
By: /S/ XXXXX XXXXX By: /S/ XXXXXX X. XXXXX
--------------------------------- ---------------------------
Xxxxx Xxxxx, Ph.D., President Xxxxxx X. Xxxxx, Ph.D., CEO
***CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT "A"
[...***...] LICENSE AND MANUFACTURING AGREEMENT
DATED AS OF JANUARY 26, 1995
***CONFIDENTIAL TREATMENT REQUESTED
APPT / SRL / CYMER
[...***...] LICENSE
AND MANUFACTURING AGREEMENT
This Agreement is effective January 26, 1995 and is made by and
between APPT Inc., a California corporation ("APPT") having its principal
office at 0000 Xxxxxxxx Xxxx, Xxxxxx, Xxxxxxxxxx 00000, Science Research
Laboratory, Inc., a
Massachusetts corporation ("SRL") having its principal
office at 00 Xxxx Xx., Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 (APPT and SRL
sometimes being collectively referred to hereinafter as "APPT/SRL", and Cymer
Laser Technologies, a California corporation ("Cymer") having its principal
office at 00000 Xxxxxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxxxxxx 00000.
RECITALS
A. Cymer is a manufacturer of excimer lasers for various
industrial applications including most importantly the photolithography light
source for deep UV lithography for the semiconductor industry.
B. APPT/SRL is a developer and manufacturer of, among other
products, [...***...] products of the type described in U.S. Patent No.
[...***...] (the "Products") for the production of pulsed electrical energy.
C. In the past Cymer and APPT/SRL have worked cooperatively on
various development contracts which have resulted in the integration of
APPT/SRL's [...***...] on Cymer's excimer laser.
D. APPT/SRL wishes to ensure that its developed [...***...]
technology is introduced and utilized on a commercial basis.
Accordingly, in consideration of the premises and the promises set
forth in this Agreement, APPT/SRL and Cymer agree as follows:
1. LICENSE TO USE AND MANUFACTURE. APPT/SRL hereby grants an exclusive
irrevocable worldwide license to Cymer to use, sell and except for
APPT/SRL, manufacture the Product in or in conjunction with excimer
lasers. Should APPT/SRL grant another license of its [...***...]
technology to another manufacturer, APPT/SRL will restrict that
manufacturer from selling the Product or using that technology in any
way that would be competitive with Cymer's use for excimer lasers.
Nothing herein shall prevent APPT/SRL from making, using or selling the
Product or from licensing others to make, use or sell the Product for
any application which does not integrate or use the Product with
excimer lasers.
2. INITIAL SUPPLY OF PRODUCT. APPT/SRL agrees to supply Cymer's
requirements for the Products. The initial prices of the Products will
be mutually agreed prior to 12/31/95, but are generally targeted to be
[...***...] for the smaller modulator and [...***...] for the larger
modulator. Prices for the Products will be reviewed on an annual basis
thereafter and otherwise as new Products are introduced. The parties
will in each instance use their best efforts to negotiate a price for
the Products which is fair and reasonable and mutually agreeable to the
parties. APPT/SRL's commitment to meet Cymer's requirements shall be
conditional on Cymer providing APPT/SRL with estimates of its
requirements for Products at reasonable intervals, and in particular of
any significant increase or decrease in requirements which is
anticipated, and of
***CONFIDENTIAL TREATMENT REQUESTED
orders from Cymer being placed at least two (2) months in advance of
any delivery date. Additionally, Cymer shall have the right to use the
technical support provided in Section 3 below to manufacture or have
manufactured sufficient Products to, in conjunction with or in place
of those provided by APPT/SRL, fill Cymer's requirements. APPT/SRL
shall promptly advise Cymer as soon as it becomes aware that it will
be unable to meet any requirements for Products by Cymer.
3. TECHNICAL SUPPORT. Prior to 12/31/95 APPT/SRL will provide to Cymer on
a confidential basis a complete set of plans, specifications, and
assembly instructions that would enable Cymer to manufacture or have
manufactured the Products. Cymer agrees to maintain the material
provided above as confidential, not to disclose such information to any
third party or any employee of Cymer not having a need to know, and to
not use such information for any purpose other than to manufacture or
have manufactured the Products for its own use or sale in excimer
lasers. APPT/SRL will be reasonably available to provide technical
support and understanding of the documentation and materials provided.
4. USE PATENT. APPT/SRL and Cymer will jointly file for appropriate use
patents for [...***...] for excimer lasers. Cymer will absorb all costs
of these patent applications. Ownership of any patents granted as a
result of this effort will be shared jointly, as will any income which
is derived from the licensing or other granting of rights under such
patent or the application relating thereto.
5. CONSIDERATION. In return for the exclusive license granted to Cymer,
Cymer will deliver to APPT 10,000 shares of its common stock within
thirty days of the execution of this contract. At the date of this
Agreement, the total number of shares of Cymer stock outstanding is not
greater than 10,000,000. See attached investment representations.
6. LOSS OF EXCLUSIVITY. Should Cymer fail to utilize at least 12 APPT/SRL
designed Products during calendar year 1996, or during any calendar
year thereafter, then Cymer's exclusive license becomes non-exclusive
at the end of such year and APPT/SRL is free to license or sell to
other excimer laser manufacturers.
7. BREACH. As long as Cymer maintains its exclusivity as defined in
paragraph 6 above, should APPT/SRL sell its [...***...] to another
manufacturer of excimer lasers or to a supplier for resale to
manufacturers of excimer lasers then both parties agree that Cymer will
have been irreparably damaged and will be entitled to injunctive relief
as well as any monetary damages that might be awarded in a court of
law. Either party shall have the right to terminate this Agreement in
the event of a breach by the other party, which breach is not cured
within thirty (30) days of written notice of the breach from the
nonbreaching party; provided, however, that in the event the nature of
the breach is such that it cannot be reasonably cured within thirty
(30) days, the breaching party shall have such additional time to
correct the default as is reasonably required, provided it is
diligently engaged in curing the default during such additional period.
APPT/SRL shall also have the right to terminate this Agreement in the
event of the bankruptcy or insolvency of Cymer. Except as indicated
above, the Agreement shall remain in effect unless terminated by mutual
agreement of the parties.
8. WARRANTIES. APPT/SRL warrants that, APPT/SRL has full power and
authority to convey all rights and licenses granted to Cymer under this
Agreement. APPT/SRL further warrants that, to the best of its
knowledge, Cymer's use of the Product will not infringe any patent,
copyright, or trade secret right of any third party worldwide. However,
APPT/SRL makes no representation that it has made any infringement
search in any country relating to the Products.
***CONFIDENTIAL TREATMENT REQUESTED
9. INDEMNITIES. Except for any liability arising as a result of a breach
of warranty by APPT/SRL, APPT/SRL shall have no liability to Cymer or
any customer of Cymer with respect to any matter relating to the sale
or use of Products, either by APPT/SRL to Cymer or by Cymer to its
customers, and Cymer agrees to fully indemnify and defend APPT/SRL
against any such claim arising as a result of a sale or other
disposition of a Product by Cymer.
10. GOVERNING LAW. The validity, construction and performance of this
Agreement and the legal relations among the parties to this Agreement
shall be governed by and construed in accordance with the laws of the
State of California.
11. MISCELLANEOUS. Any notices required to be provided under this Agreement
shall be provided in writing with notices to APPT/SRL being provided to
APPT and SRL separately at the addresses provided in the preamble,
attention its President in each instances, and notices to Cymer being
sent to the address indicated in the preamble, attention its President.
This document represents the complete agreement of the parties on the
subject matter hereof and may not be altered or amended except by a
document in writing, signed by authorized representatives of all three
parties. To the extent any dispute should develop between the parties
concerning this Agreement, the parties will use their best efforts to
resolve such dispute. In the event they are unable to resolve the
dispute, the dispute shall be resolved by binding arbitration before a
single arbitrator mutually agreeable to the parties. Such arbitration
will be conducted in Los Angeles, California, with each party
submitting to the arbitrator a proposed resolution of the dispute and
the arbitrator selecting one of such proposed solutions, the
arbitration otherwise being conducted in accordance with the rules of
the American Arbitration Association.
IN WITNESS WHEREOF, the parties hereto have caused this PRODUCT LICENSE
AND MANUFACTURING AGREEMENT to be executed by their authorized representatives.
APPT INC.: CYMER LASER TECHNOLOGIES:
a California Corporation a California Corporation
By: /S/ XXXXXX XXXX By: /S/ XXXXXX X. XXXXX
------------------------------- ---------------------------
Xxxxxx Xxxx, President Xxxxxx X. Xxxxx, President
SCIENCE RESEARCH LABORATORY, INC.
a
Massachusetts Corporation
By: /S/ XXXXX XXXXX
--------------------------------
Xxxxx Xxxxx, President
***CONFIDENTIAL TREATMENT REQUESTED
