**Exhibit 10.2**

 

**AMENDMENTNO. 1 TO JOINT VENTURE AGREEMENT OF TCZ, GMBH**

 

**This****Amendment No. 1 to Joint Venture Agreement of TCZ, GmbH**(this **“*Amendment No. 1*”**)is made as of September 16, 2005 (the **“*Amendment No. 1 Effective Date*”**)by and among TCZ GmbH, a limited liability company organized under the laws ofSwitzerland (“**TCZ**”), Carl Zeiss SMT AG, a stockcorporation organized under the laws of Germany (“**Zeiss****SMT**”), CarlZeiss Laser Optics Beteiligungsgesellschaft mbH, a limited liability companyorganized under the laws of Germany and an indirect wholly-owned subsidiary ofSMT (“**Zeiss LOB**”), and Cymer, Inc., aNevada corporation (“**Cymer**”) andamends and supplements that certain Joint Venture Agreement, dated July 15,2005 (the “***Agreement***”)between the parties.  All capitalizedterms used in this Amendment No. 1 but not otherwise defined herein shallhave the meanings given such terms in the Agreement and, unless otherwisespecified, references to Sections refer to Sections of the Agreement.

 

**NOW, THEREFORE**, inconsideration of the mutual promises contained herein and other good andvaluable consideration, the receipt and sufficiency of which is herebyacknowledged, the parties hereby agree as follows.

 

**1.****                                     ****AMENDMENTS.**

 

**1.1          Definitions.**

 

**(a)****                                 **The definition of “Administrative ServicesAgreements” in Section 1.01 is amended to read in its entirety as follows:

 

“**Administrative ServicesAgreement**” means the Administrative Services Agreement to be enteredinto between Cymer and the Company, in a form to be mutually agreed by Cymerand Zeiss LOB not later than the Closing, as amended, supplemented or otherwisemodified from time to time.

 

**(b)****                                 **The definition of “Facilities Agreements” in Section 1.01is amended  to read in its entirety asfollows:

 

“**Facilities License Agreements**”means (i) the Facilities License Agreement to be entered into between theCompany and Cymer relating to use by the Company of certain facilities in theUnited States, in a form to be mutually agreed by Cymer and Zeiss LOB not laterthan the Closing, as amended, supplemented or otherwise modified from time totime, and (ii) the Facilities License Agreement to be entered into betweenthe Company or its Affiliate and an Affiliate of Cymer relating to use by theCompany or its Affiliates of certain facilities in Korea, in a form to bemutually agreed by Cymer and Zeiss LOB after Closing, as amended, supplementedor otherwise modified from time to time.

 

**(c)**                                  The definition of “Joint Venture Documents”in Section 1.01 is amended  to readin its entirety as follows:

 

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“**Joint Venture Documents**”means, collectively, this Agreement, the Contribution Agreement, theIntellectual Property Agreement, the Supply Agreements, the AdministrativeServices Agreement, the Facilities License Agreements and the ConfidentialityAgreement.

 

**(d)**                                  The definition of “R&D ServicesAgreements” in Section 1.01 is stricken.

 

**(e)**                                  The definition of “Trademark LicenseAgreement” in Section 1.01 is stricken.

 

**1.2          Formationof the Company. **Section 2.01(c)  is amended to read in its entirety as follows:

 

(c)                                  The Company shallhave Articles of Association (*Statuten*)substantially in the form attached hereto as Exhibit G, subject to suchmodifications as may be required by the commercial register of the Canton ofSt. Gallen as part of the registration process.

 

**1.3          Executionof Agreements by Company.*** *Section 2.02  is amended to read in its entirety asfollows:

 

Section 2.02.                             *Execution of Agreements by Company. *At the Closing, promptly following the Company’s registrationin the commercial register of the Canton of St. Gallen, the Members (i) willcause the Company to become a party to this Agreement by executing anddelivering counterparts hereof and (ii) shall execute and deliver, in thecase of Cymer to the extent it is a party thereto, and shall cause the Companyto execute and deliver, (A) counterparts of the Intellectual PropertyAgreement, (B) counterparts of each Supply Agreement and (C) eachother Joint Venture Document that the Members shall mutually agree shall beexecuted at the Closing.

 

**1.4****                               RepresentationsAnd Warranties. **Section 2.04 (d) is amended to read in its entirety as follows:

 

(d)                                 Notwithstanding anyother provision contained in this Agreement, the Company shall be authorized toexecute, deliver and perform this Agreement and the other Joint VentureDocuments to which it is a party and all documents, agreements, certificates,or statements contemplated thereby or related thereto, each in the formattached hereto, or in the case of the Administrative Services Agreement, andthe Facilities License Agreements, in the form mutually agreed by Cymer andZeiss LOB at or before Closing (except that the form of the Facilities LicenseAgreement for Korea shall be agreed to by Cymer and Zeiss LOB after Closing),exclusive of any future amendments, without any further act, vote or approvalof any Member or any other Person.

 

**1.5****                               Attachments**.  Attachments F (Swiss Corporate LegalImplementation Timetable) is replaced in its entirety by Attachment F to thisAmendment No. 1.

 

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**2.****                                     ****EFFECT OF AMENDMENT**.  Effective as ofthe Amendment No. 1 Effective Date, all references in the Agreement to the“Agreement” or “this Agreement” shall mean the Agreement as amended by thisAmendment No. 1.  Except as expressly amended herein, the termsof the Agreement continue unchanged and shall remain in full force and effect.

 

**3.****                                     ****EXECUTION OF AMENDMENT**.  This Amendment No. 1may be executed in one or more counterparts, each of which shall be consideredan original, but all of which counterparts together shall constitute one andthe same instrument.

 

[REMAINDER OF PAGEINTENTIONALLY LEFT BLANK]

 

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IN WITNESS WHEREOF, theParties have caused this Amendment No. 1 to be executed by their dulyauthorized representatives, effective as of the Amendment No.1 Effective Date.

 

 
| ** ** | **CYMER, INC.**                                           |
|------------|-----------------------------------------------------------|
| ** ** | ** **                                                |
| ** ** | ** **                                                |
|       | By:                                                       | /s/ Robert P. Akins |   |
|       |                                                      | Name: | Robert P. Akins |
|       |                                                      | Title: | CEO |
|       |                                                      |
|       |                                                      |
| ** ** | **CARL ZEISS LASER OPTICS  BETEILIGUNGSGESELLSCHAFT MBH** |
| ** ** | ** **                                                |
| ** ** | ** **                                                |
|       | By:                                                       | /s/ Axel Jaeger |   |
|       |                                                      | Name: | Axel Jaeger |
|       |                                                      | Title: | Managing Director |
|       |                                                      |
|       |                                                      |
| ** ** | **CARL ZEISS SMT AG**                                     |
| ** ** | ** **                                                |
| ** ** | ** **                                                |
|       | By:                                                       | /s/ H. Gerlinger |   |
|       |                                                      | Name: | Dr. Hermann Gerlinger |
|       |                                                      | Title: | President and CEO |
|       | By:                                                       | /s/ David Schoh |   |
|       |                                                      | Name: | David Schoh |
|       |                                                      | Title: | Member of the Board and CFO |
|       |                                                      |
|       |                                                      |
| ** ** | **TCZ GMBH**                                              |
| ** ** | ** **                                                |
| ** ** | ** **                                                |
|       | By:                                                       | /s/ Brian C. Klene |   |
|       |                                                      | Name: | Brian C. Klene |
|       |                                                      | Title: | President and CEO |
|            |                                                           |  |  |  |

 

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**EXHIBIT F**

 

**Swiss Corporate Legal ImplementationTimetable**

 
| **Action**    | ** ** | **Time**                                                                        | ** ** | **Description**                                                                                                                                                                                                                                                                                        |
|---------------|------------|---------------------------------------------------------------------------------|------------|--------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
| ** **    | ** ** | ** **                                                                      | ** ** | ** **                                                                                                                                                                                                                                                                                             |
| Signing       |       | Date hereof                                                                     |       | Signing of the Joint Venture Agreement and the IMT non-compete side  letter agreement                                                                                                                                                                                                                  |
|          |       |                                                                            |       |                                                                                                                                                                                                                                                                                                   |
|          |       | As soon as reasonably practicable after signing of the Joint Venture  Agreement |       | Parties to transfer CHF 12,000 (Cymer) and CHF 8,000 (Zeiss) to bank  account for formation of GmbH                                                                                                                                                                                                    |
|          |       |                                                                            |       |                                                                                                                                                                                                                                                                                                   |
|          |       | Selection of Trustees                                                           |       | Signing of Trust Agreements Identification of Address                                                                                                                                                                                                                                                  |
|          |       |                                                                            |       |                                                                                                                                                                                                                                                                                                   |
| Incorporation |       | After receipt of funds and selection of Trustees                                |       | Incorporation of GmbH with funds referred to above; appointment of  CEO and Swiss Trustees and granting of signatory powers                                                                                                                                                                            |
|          |       |                                                                            |       |                                                                                                                                                                                                                                                                                                   |
| Registration  |       | Incorporation + five business days                                              |       | GmbH to be entered into commercial register                                                                                                                                                                                                                                                            |
|          |       |                                                                            |       |                                                                                                                                                                                                                                                                                                   |
| Closing       |       | Promptly after Registration                                                     |       | Signing of Intellectual Property Agreement, Supply Agreements,  Contribution Agreement, Confidentiality Agreement, IMT IP Side Letter,  Administrative Services Agreement, and Facilities License Agreements (except  that the Facilities License Agreement for Korea shall be executed after Closing) |
|          |       |                                                                            |       |                                                                                                                                                                                                                                                                                                   |
|          |       |                                                                            |       | Parties to make contributions according to Joint Venture Agreement;  Cymer makes contribution of Cymer patents according to Contribution Agreement                                                                                                                                                     |

 

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