EXHIBIT 10.28
FORCEFILL(TM) TECHNOLOGY
LICENSE AGREEMENT
This LICENSE AGREEMENT ("Agreement") is made and entered into as of
November 12, 1997 by and between Applied Materials, Inc., a Delaware corporation
("Applied") and Trikon Equipments Limited, a company incorporated under the laws
of England and Wales under registered number 939289 and formerly known as
"Electrotech Equipments Limited" ("Equipments Limited"), with respect to the
following facts:
A. Equipments Limited represents and warrants to Applied that its
rights in and to the Licensed Technology and the Trademarks (as defined below)
are as set forth in this Agreement; and
B. Equipments Limited desires to grant to Applied, and Applied
desires to acquire from Equipments Limited, subject to the terms and conditions
of this Agreement, an unrestricted license to manufacture, use and sell Applied
Licensed Products (as defined below), and to otherwise develop and use the
Licensed Technology and to use the Trademarks.
THE PARTIES AGREE AS FOLLOWS:
1. CERTAIN DEFINITIONS
As used in this Agreement:
1.1 "Affiliate" means with respect to any person: any company,
partnership, entity or other person that directly controls or is controlled by,
or is under common control with, the specified person; and "Affiliated Entity"
means any Affiliate other than an individual. For purposes of this Agreement,
Applied Komatsu Technology, Inc. shall be deemed an Affiliated Entity of
Applied.
1.2 "Applied Licensed Products" means products and software made by
or for Applied or any of its Affiliated Entities that in whole or in part
incorporate, use or are made using the Licensed Technology.
1.3 "Copyright(s)" means all copyright, unregistered design rights,
semiconductor topography and mask work interests, including, without limitation,
all rights of authorship, use, publication, reproduction, performance,
transformation, moral rights and ownership of copyrightable works, designs
(other than registered designs), semiconductor topography works and mask works,
and all rights to register and obtain renewals and extensions of registrations,
together with all other interests accruing by reason of international copyright,
semiconductor topography and mask work conventions.
1.4 "Forcefill Technology" means [ ]
1.5 "Improvements" means [ ]
1.6 "Licensed Technology" means: all (a) Patent Rights, (b)
Technical Information, (c) Improvements, and (d) Copyrights, in each case
relating to Forcefill Technology, including without limitation, Equipments
Limited's entire right, title and interest in the foregoing, and all hardware,
software and processes, conceived, developed, reduced to practice, discovered,
owned, licensed and/or acquired by Equipments Limited or any of its Affiliates
or agents prior to or as of the date of this Agreement.
1.7 "Patents" means any and all issued patents, reissue or
reexamination patents, patents of importation, revivals of patents, revalidation
patents, utility models, certificates of invention, registrations of patents, or
extensions thereof, regardless of country or formal name.
1.8 "Patent Rights" means all United Kingdom, United States and other
foreign utility and design Patents, and published or unpublished regular patent
and provisional applications (including without limitation any and all
applications of addition, divisionals, continuations, continuations-in-part
("CIPs"), reexaminations, substitutions, extensions, renewals, utility models,
certificates of invention or reissues thereof or therefor, invention disclosures
and records of invention, and any license to practice any of the foregoing,
including without limitation the Patents and patent applications listed on
Exhibit 1.8.
1.9 "Proprietary Rights" means Copyrights, Patent Rights, Technical
Information and trademarks (including, without limitation, the Trademarks).
1.10 "Technical Information" means any and all ideas, inventions,
disclosures, design rights, unpublished research and development information,
manufacturing and operating information, know-how, trade secrets and technical
data.
1.11 "Trademarks" means the trademarks listed on the attached Exhibit
1.11.
1.12 "Related Agreements" means the MORI(TM) Source License Agreement
and MORI(TM) Source Technology Transfer Agreement between Applied and Trikon
Technologies, Inc. and the Forcefill(TM) License Agreement and Forcefill(TM)
Technology Transfer Agreement between Applied and Trikon Technologies Limited,
all of even date with this Agreement.
2. LICENSE GRANT
2.1 LICENSED TECHNOLOGY. Subject to the terms and conditions of this
Agreement, Equipments Limited hereby grants to Applied and its Affiliated
Entities (a) a non-exclusive, worldwide, perpetual, fully paid, unrestricted,
irrevocable license (the "License") to use, develop, reproduce, publish,
display, perform, distribute, modify and transform the Licensed Technology and
otherwise exercise all rights therein, and to make, have made, use, dispose of,
offer to dispose of, sell, offer for sale, service, repair, reconstruct, have
sold, import and have imported Applied Licensed Products, together with (b) the
rights to sublicense others to use the Licensed Technology in connection with
Applied Licensed Products and the Purchased Units (as such term is defined in
Section 4 below).
2.2 TRADEMARKS. Equipments Limited hereby grants to Applied and its
Affiliated Entities a nonexclusive, worldwide, perpetual, fully paid,
irrevocable license to use the Trademarks, at Applied's election, in connection
with sales of Applied Licensed Products.
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2.3 TERM. The term of this Agreement is from the date hereof to the
date of expiration of the last of the Patents to expire, or the date that the
last of the Technical Information enters the public domain, whichever is later.
3. COMPENSATION
3.1 CONSIDERATION. Applied shall pay Equipments Limited non-
refundable consideration in the amount of U.S. $4,250,000 (the "License Fee")
for all licenses and rights granted hereunder. The License Fee shall be payable
by wire transfer in immediately available funds upon receipt by Applied of
counterparts of this Agreement and the Technology Transfer Agreement executed by
Equipments Limited.
3.2 CERTAIN DELIVERIES. Prior to or concurrently with the execution
of this Agreement, Equipments Limited is delivering to Applied (a) evidence
reasonably satisfactory to Applied that Equipments Limited has obtained (i) all
appropriate consents and waivers of lenders, other contract parties and
governmental entities and (ii) waivers of all contractual provisions that would
restrict or prohibit enforceability of this Agreement or the Technology Transfer
Agreement, including without limitation with clauses (i) and (ii) all consents
and waivers listed on Schedule 6.4 and (b) an opinion of counsel to the effect
set forth in Exhibit 3.2 and in a form acceptable to Applied in its sole
discretion.
4. TECHNOLOGY TRANSFER AGREEMENT
Concurrently with their entering into this Agreement, the parties
hereto will enter into a Forcefill Technology Transfer Agreement in the form
attached hereto as Exhibit 4 (the "Technology Transfer Agreement"), and for the
separate consideration stated therein, Equipments Limited will effect the
transfer to Applied of Technical Information included in the Licensed Technology
on the terms and conditions stated therein.
5. THIRD PARTY CLAIMS
5.1 INDEMNITY. Equipments Limited agrees to indemnify, defend and
hold Applied and its Affiliates harmless from and against any and all
liabilities, losses, costs, fines, demands, actions, claims, suits, proceedings,
investigations, damages, judgments and settlements including without limitation
reasonable attorneys' fees, resulting from or arising out of: (a) any alleged,
threatened or actual infringement, misappropriation, or violation of any
proprietary rights of a third party in connection with the exercise by Applied
and/or its Affiliates of its rights hereunder, or (b) breach by Equipments
Limited of any of its obligations, covenants, representations or warranties
(collectively, "Claims"). Notwithstanding the above, Equipments Limited shall
have no liability for any claim of infringement, misappropriation or violation
of any proprietary right of a third party based on modification of the Licensed
Technology by Applied, if the infringement would have been avoided without such
modification.
5.2 EQUIPMENTS LIMITED'S OBLIGATIONS. Equipments Limited shall have
control of the defense, litigation and, subject to the conditions set forth
below, settlement of any Claim. Applied shall have the right (subject to the
conditions set forth below), but not the obligation, to select counsel of its
choice, at its expense, to participate in the defense. Equipments Limited shall
not accept a settlement of any Claim without the prior written consent of
Applied, which consent shall not be unreasonably withheld. In the event that
any claim of infringement, misappropriation or violation of any proprietary
rights of a third party is substantiated, or in Equipments Limited's judgment is
likely to be substantiated,
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Equipments Limited shall have the right, in its sole discretion and at its own
expense, to either: (a) procure for Applied such fully paid rights as are
coextensive with the rights granted Applied hereunder; or (b) replace or modify
the Licensed Technology in a manner reasonably satisfactory to Applied to make
it non-infringing without materially impairing performance of the Licensed
Technology.
5.3 APPLIED COOPERATION. In the event any third party Claim is made
against Applied or its Affiliates within the scope of the indemnity set forth in
Section 5.1, Applied shall (a) provide prompt written notice of such third party
Claim to Equipments Limited, (b) provide Equipments Limited with such assistance
as Equipments Limited may reasonably request in connection with the defense
and/or settlement of such third-party claim, provided that all costs and
expenses incurred by either party shall be borne by Equipments Limited, and (c)
promptly comply with all terms of any resolution or settlement of such third-
party Claim at Equipments Limited's expense.
6. EQUIPMENTS LIMITED REPRESENTATIONS AND WARRANTIES
Equipments Limited represents and warrants to Applied and its
Affiliates as follows:
6.1 ORGANIZATION. Equipments Limited: (a) is a corporation duly
organized, validly existing and in good standing under the laws of England and
Wales; and (b) has all necessary corporate power to own, license and transfer
the Licensed Technology without restriction or encumbrance, to carry on its
business as now being conducted, and to enter into and deliver this Agreement
and the Technology Transfer Agreement and to consummate the transactions
contemplated by each of them.
6.2 AUTHORITY. The execution and delivery of this Agreement and the
Technology Transfer Agreement, and the performance of each of them by Equipments
Limited, have been duly authorized by all necessary corporate action on the part
of Equipments Limited. Each of this Agreement and the Technology Transfer
Agreement constitutes a legal, valid and binding obligation of Equipments
Limited, enforceable against Equipments Limited in accordance with its terms,
subject as to enforcement: (a) to bankruptcy, insolvency, reorganization,
arrangement, moratorium and other laws of general applicability relating to or
affecting creditors' rights; and (b) to general principles of equity, whether
such enforcement is considered in a proceeding in equity or at law.
6.3 NO CONFLICTS. Neither the execution and delivery of this
Agreement or the Technology Transfer Agreement, nor the performance of either of
them by Equipments Limited, will: (a) conflict with or result in any breach or
violation of the terms of any decree, judgment, order, law or regulation of any
court or other governmental body now in effect applicable to Equipments Limited,
any of its Affiliates, the Licensed Technology or the Trademarks; (b) conflict
with, or result in, with or without the passage of time or the giving of notice,
any breach of any of the terms, conditions and provisions of, or constitute a
default under, or result in the creation of any lien, charge, easement, security
interest, mortgage, conditional sale contract, equity, right of way, covenant,
restriction, title defect, objection, claim or other encumbrances upon any of
the Licensed Technology or the Trademarks pursuant to, any indenture, mortgage,
lease, agreement or other instrument to which Equipments Limited or any of its
Affiliates is a party or by which Equipments Limited, any of its Affiliates, the
Licensed Technology or the Trademarks are bound; (c) permit the acceleration of
the maturity of any indebtedness of Equipments Limited or of any other person
secured by the Licensed Technology or the Trademarks; or (d) violate or conflict
with any provision of Equipments Limited's charter documents.
6.4 CONSENTS. Except as set forth on Schedule 6.4, no consent,
approval or waiver from any third party, and no consent, approval or
authorization of, or declaration, filing or registration with, any
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government or regulatory authority, is required to be obtained or made by
Equipments Limited or any of its Affiliates in order to permit the execution and
delivery of this Agreement and the Technology Transfer Agreement by Equipments
Limited and the consummation of the transactions contemplated by each of them.
All consents, waivers and approvals identified on Schedule 6.4 have been
obtained in writing and copies thereof have been provided to Applied.
6.5 LICENSED TECHNOLOGY. Equipments Limited represents and warrants
that: (a) the Licensed Technology includes all of its technology and Proprietary
Rights relating to Forcefill Technology, and no technology or Proprietary Rights
relating to Forcefill Technology are owned or otherwise held by any Affiliate of
Equipments Limited other than Trikon Technologies Limited; (b) except as set
forth on Schedule 6.5, the Licensed Technology does not infringe upon or violate
any Proprietary Rights of any other person; (c) except as set forth on Schedule
6.5, no claim has been asserted or threatened by any other person that the use
of the Licensed Technology constitutes an infringement or misappropriation of
any Proprietary Rights of another or constitutes unfair competition; (d)
Equipments Limited is the true, lawful and sole legal and beneficial owner of
the Licensed Technology, free and clear of any claims, liens or encumbrances and
Equipments Limited's ownership is more than a shop right; (e) except as set
forth on Schedule 6.5 as to Improvements only, all Patents, Copyrights and
Trademarks included in the Licensed Technology are valid and in full force and
effect, and all maintenance and annuity fees have been fully paid and all fees
paid during prosecution and after issuance of the Patents have been paid in the
correct entity status amounts; (f) the License granted by Equipments Limited
does not and will not conflict with any rights granted to other persons or
violate any previous agreement between Equipments Limited or any of its
Affiliates and any other person; (g) except as set forth on Schedule 6.5 with
respect to prosecution of Improvements only, no fraud or misrepresentation has
been made during the prosecution of the Patent Rights, Copyrights or Trademarks,
or has been included in the documentation for or other disclosure of the
Licensed Technology; and (h) Equipments Limited has or can obtain all consents
to exclusion of all inventors deleted from or not included in all applications
of the Patent Rights.
6.6 TRADEMARKS. Equipments Limited represents and warrants that it
is the true, lawful and sole owner of the Trademarks, and has the exclusive
right to use such Trademarks, and has the right to permit Applied to use such
Trademarks as contemplated by this Agreement, in each case, free of infringement
of or unfair competition with any trademark or service xxxx rights of any other
person, and free of any other claims, liens or encumbrances.
6.7 WARRANTY. Except as set forth in this Section 6, Equipments
Limited makes no warranties, express or implied, regarding the Licensed
Technology, the Proprietary Rights, the Purchased Units or the Trademarks, their
performance, or the results which can be achieved with them. EXCEPT AS SET
FORTH IN THIS SECTION 6, THE LICENSED TECHNOLOGY, THE PROPRIETARY RIGHTS, THE
PURCHASED UNITS AND THE TRADEMARKS ARE LICENSED OR PROVIDED TO APPLIED, AS THE
CASE MAY BE, ON AN "AS IS" BASIS AND EQUIPMENTS LIMITED HEREBY DISCLAIMS ANY AND
ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
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7. APPLIED REPRESENTATIONS AND WARRANTIES
Applied represents and warrants to Equipments Limited and its
Affiliates as follows:
7.1 ORGANIZATION. Applied: (a) is a corporation duly organized,
validly existing and in good standing under the laws of the state of Delaware;
and (b) has all necessary corporate power to enter into and deliver this
Agreement and the Technology Transfer Agreement, and to consummate the
transactions contemplated by each of them.
7.2 AUTHORITY. The execution and delivery of this Agreement and the
Technology Transfer Agreement, and the performance by Applied of each of them,
have been duly authorized by all necessary corporate action on the part of
Applied. Each of this Agreement and the Technology Transfer Agreement
constitutes a legal, valid and binding obligation of Applied, enforceable
against Applied in accordance with its terms, subject as to enforcement: (a) to
bankruptcy, insolvency, reorganization, arrangement, moratorium and other laws
of general applicability relating to or affecting creditors' rights; and (b) to
general principles of equity, whether such enforcement is considered in a
proceeding in equity or at law.
7.3 NO CONFLICTS. Neither the execution and delivery of this
Agreement or the Technology Transfer Agreement, nor the performance of either of
them by Applied, will: (a) conflict with or result in any breach or violation
of the terms of any decree, judgment, order, law or regulation of any court or
other governmental body now in effect applicable to Applied or any of its
Affiliates; or (b) violate or conflict with any provision of Applied's charter
documents or of any agreement or instrument to which Applied or any of its
Affiliates is a party.
7.4 CONSENTS. No consent, approval or waiver from any third party,
and no consent, approval or authorization of, or declaration, filing or
registration with, any government or regulatory authority, is required to be
made or obtained by Applied or any of its Affiliates in order to permit the
execution and delivery of this Agreement and the Technology Transfer Agreement
by Applied, and the consummation of the transactions contemplated by each of
them.
8. COVENANTS OF EQUIPMENTS LIMITED
Equipments Limited covenants and agrees with Applied as follows:
8.1 NOTICE OF INFRINGEMENT. If, during the term of this Agreement,
Equipments Limited receives written notice expressly stating that a third party
(a "Potential Infringer") has directly or contributorily infringed, has induced
another to infringe, or has engaged in unfair competition with respect to, any
of the Licensed Technology, Equipments Limited shall promptly identify the
affected aspect(s) or item(s) of the Licensed Technology and the Potential
Infringer in a written notice to Applied.
8.2 PATENT PROSECUTION AND MAINTENANCE FEES. To the extent it has
not done so, Equipments Limited through patent attorneys of its choosing and at
its own expense and cost shall cause to be filed and/or prosecuted the patent
applications listed in Exhibit 1.7, and all patent application(s), if any,
relating to Improvements included in the Licensed Technology. Equipments
Limited agrees to exercise all commercially reasonable efforts to cause all
patent applications to be prosecuted in such manner that the best possible
patent protection may be obtained thereon. Equipments Limited shall have no
liability to Applied respecting the results of such prosecution. Equipments
Limited agrees, from time to time and on a reasonable and prompt basis, to
inform Applied about the status of the prosecution of
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said patent applications. During the life of any patents, Equipments Limited
shall timely pay all applicable fees, including but not limited to issue and
maintenance fees related to Patent Rights included in the Licensed Technology at
the appropriate entity status rates.
8.3 PROTECTION OF TRADEMARKS. Equipments Limited shall take all
reasonable steps to maintain, and shall take no steps that derogate from, the
force or validity of, the Trademarks; shall pay such fees in a timely manner as
are necessary to maintain the registrations of the Trademarks in all countries
of such registration; and shall have the exclusive right to institute and
prosecute in its sole discretion with all reasonable effort actions against any
suspected infringers or misusers of the Trademarks.
8.4 REGISTERED USER AGREEMENTS. Equipments Limited, at its sole
election, may undertake recordation of a registered user agreement or trademark
license with respect to Applied in any country where Applied uses the Trademarks
and where such recordation is required or permitted.
9. COVENANTS OF APPLIED
Applied covenants and agrees with Equipments Limited as follows:
9.1 TECHNOLOGY. Applied understands and agrees that, with the
exception of the rights expressly licensed or otherwise granted under this
Agreement, Applied shall not acquire any right, title, or interest in the
Licensed Technology or the Trademarks, which right, title and interest is and
shall remain with Equipments Limited.
9.2 TRADEMARKS. Applied is familiar with the quality standards of
Equipments Limited. In the event Applied elects to use the Trademarks, Applied
shall use the Trademarks only in accordance with those same reasonable standards
of quality currently used by Applied, which standards shall at least be equal
to, but which shall not be required to exceed, the standards of quality
currently used by Equipments Limited. Equipments Limited shall have the right
once per year, upon reasonable advance written notice (at least 10 business days
in advance), to receive from Applied a reasonably representative selection of
specimens of Applied's use of the Trademarks, as may be reasonably necessary in
order to confirm that such quality control standards are being observed.
Applied hereby consents to being named as a registered user of the Trademarks
where the recordation of a registered user agreement or trademark license is
required or permitted, and Applied agrees to execute any documents reasonably
necessary or desirable to enable and assist Equipments Limited in the exclusive
registration and protection of the Trademarks, all at no expense to Applied.
9.3 PROPRIETARY NOTICES. Applied agrees to use reasonable efforts to
include reproductions of the patent and trademark notices of Equipments Limited
as Equipments Limited may reasonably designate on each Applied Licensed Product
and all packaging and documentation used for or with its distribution. Applied
shall not remove, efface or obscure any patent or trademark notices from any
Equipments Limited materials provided hereunder.
9.4 NOTICE OF INFRINGEMENT. If, during the term of this Agreement,
Applied receives written notice expressly stating that a Potential Infringer has
directly or contributorily infringed, has induced another to infringe, or has
engaged in unfair competition with respect to, any of the Licensed Technology,
Applied shall promptly identify the affected aspect(s) or item(s) of the
Licensed Technology and the Potential Infringer in a written notice to
Equipments Limited.
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10. LIMITATIONS OF LIABILITY; CERTAIN DISCLAIMERS
10.1 LIMITATIONS OF LIABILITY. THE AGGREGATE LIABILITY OF EQUIPMENTS
LIMITED AND ITS AFFILIATES ARISING OUT OF THIS AGREEMENT, THE TECHNOLOGY
AGREEMENT AND THE RELATED AGREEMENTS SHALL NOT EXCEED THE AGGREGATE AMOUNTS PAID
TO EQUIPMENTS LIMITED AND ITS AFFILIATES BY APPLIED PURSUANT TO THIS AGREEMENT,
THE TECHNOLOGY TRANSFER AGREEMENT AND THE RELATED AGREEMENTS. EQUIPMENTS
LIMITED SHALL NOT HAVE ANY LIABILITY TO APPLIED FOR ANY INDIRECT, INCIDENTAL,
SPECIAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY,
ARISING OUT OF THIS AGREEMENT AND THE TECHNOLOGY TRANSFER AGREEMENT, INCLUDING
BUT NOT LIMITED TO LOSS OF ANTICIPATED PROFITS, EVEN IF EQUIPMENTS LIMITED HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY
NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THESE
LIMITATIONS OF LIABILITY SHALL NOT APPLY IN THE EVENT OF FRAUD.
10.2 CERTAIN DISCLAIMERS. Nothing in this Agreement shall (a)
obligate Applied to use the Licensed Technology or Trademarks, or (b) to
restrict or prohibit Applied from developing, making, using, marketing or
otherwise distributing or promoting products and/or processes using, embodying,
or competing with the Licensed Technology. No rights are granted to Equipments
Limited by this Agreement in any Applied technology or in any Applied tangible,
intangible or intellectual property, whether now in existence or hereafter
conceived, developed, reduced to practice, discovered, owned, licensed, leased,
sold and/or acquired by or for Applied relative to any products or property of
Applied, regardless of nature or technical subject.
11. BANKRUPTCY
All rights and licenses granted under or pursuant to this Agreement by
each party are, and shall otherwise be deemed to be, for purposes of Section
365(n) of Title 11, U.S. Code (the "Bankruptcy Code"), licenses of rights to
"intellectual property" as defined under Section 101(35A) of the Bankruptcy
Code. The parties agree that Applied shall retain and may fully exercise all of
its rights and elections under the Bankruptcy Code to the extent that the
Bankruptcy Code applies to Equipments Limited. Equipments Limited agrees,
during the term of this Agreement, to create and maintain current copies or, if
not amenable to copying, detailed descriptions or other appropriate embodiments,
of all such intellectual property, all to ISO 9000 et seq. and other applicable
standards. Equipments Limited further agrees that in the event of the
commencement of a bankruptcy proceeding by or against it, Applied shall be
entitled to a complete non-exclusive duplicate of or complete access to, as
appropriate, solely for the purposes contemplated by this Agreement and the
Technology Transfer Agreement, any such intellectual property and all
embodiments of such intellectual property, and same, if not already in its
possession, shall be promptly delivered to Applied or made available to Applied
for reproduction (i) upon such commencement of a bankruptcy proceeding upon
written request therefor by Applied, unless Equipments Limited elects to
continue to perform all of its obligations under this Agreement or (ii) if not
delivered under (i) above, upon the rejection of this Agreement by or on behalf
of Equipments Limited upon written request therefor by Applied.
12. NO PUBLICITY
Except as required by court order, Equipments Limited agrees not to
disclose the existence or terms of this Agreement without the prior written
consent of Applied, which consent shall
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not be unreasonably withheld. Applied agrees to review any disclosure proposed
by Equipments Limited on a prompt basis, provided Applied is given at least two
business days' advance written notice.
13. MISCELLANEOUS
13.1 GOVERNING LAW. This Agreement shall be governed by the
laws of the State of California without reference to principles of conflicts of
laws and without regard to the UN Convention on the International Sale of Goods.
13.2 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.3 HEADINGS. The headings of the Sections of this Agreement
are for convenience and shall not by themselves determine the interpretation of
this Agreement.
13.4 NOTICES. All notices and other communications hereunder
shall be in writing and shall be delivered personally by overnight courier or
similar means or sent by facsimile with written confirmation of receipt, to the
parties at the addresses specified below (or at such other address for a party
as shall be specified by like notice). Any such notice shall be effective upon
receipt, if personally delivered, or on the next business day following
transmittal if sent by facsimile. Notices shall be delivered as follows:
To Applied: Applied Materials, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Esq.
Vice President, Legal Affairs
and Intellectual Property
with a copy to: Applied Materials, Inc.
0000 Xxxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxx
Director, New
Business Development
To Equipments Limited: Trikon Equipments Limited
Xxxxxxxx Xxx
Xxxxxxx, Xxxxx XX0 0XX
Attention: Xxxxx Xxxxxxx
with a copy to: Xxxxxxx, Phleger & Xxxxxxxx LLP
Xxx Xxxxxx
Xxxxx Xxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
13.5 AMENDMENT OF AGREEMENT. Any provision of this Agreement may
be amended only by a written instrument signed by Equipments Limited and
Applied.
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13.6 SEVERABILITY. In case any one or more of the provisions
contained in this Agreement should be finally determined to be invalid, illegal
or unenforceable in any respect against either party hereto, it shall be
adjusted if possible to effect the intent of the parties. In any event, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby, and such
invalidity, illegality or unenforceability shall only apply as to such party in
the specific jurisdiction where such final determination shall have been made.
13.7 ENTIRE AGREEMENT. This Agreement, together with its
Exhibits, constitute the entire agreement between Equipments Limited and Applied
regarding the subject matter hereof, and supersedes any and all prior
negotiations, correspondence, understandings and agreements regarding such
subject matter.
13.8 IMPORT/EXPORT. Each party shall comply with all applicable
import and export control laws and regulations.
13.9 TAXES. Applied will not withhold taxes for the
transactions contemplated hereunder except as required by law.
13.10 RULES OF CONSTRUCTION. Each party to this Agreement has
been represented by counsel during the preparation and execution of this
Agreement, and therefore waives any rule of construction that would construe
ambiguities against the party drafting the agreement.
13.11 FURTHER ASSURANCES. Each party agrees to cooperate with
the other in executing, delivering, and filing such further documentation and
taking any such other further actions as may be necessary or appropriate to
effectuate the transfer of rights granted in this Agreement, or to evidence the
satisfaction or accuracy of any condition, representation or warranty of this
Agreement.
13.12 INDEPENDENT CONTRACTORS. The parties to this Agreement are
and shall remain independent contractors, and nothing herein shall be construed
to create a partnership or joint venture between Equipments Limited and Applied.
Each party shall be responsible for wages, hours, and condition of employment of
its personnel during the term of and under this Agreement. Nothing herein shall
be construed as implying that employees of either party are employees of the
other party.
IN WITNESS WHEREOF, the parties, by their duly authorized officers,
have executed this Agreement as of the date first above written.
APPLIED MATERIALS, INC. TRIKON EQUIPMENTS LIMITED
By: /s/ Xxxxxx Xxxxxxx By: /s/ Xxxxxx Xxxxxxxx
---------------------------- --------------------------------
Name: Xxxxxx Xxxxxxx Name: Xxxxxx Xxxxxxxx
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Title: Corporate Vice President Title: Director
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