**Exhibit 10.2**

 

*** TEXT OMITTED AND FILED SEPARATELY

CONFIDENTIAL TREATMENT REQUESTED

Under 17 C.F.R. Sections 200.80(b)(4) and240.24b-2

 

**INTELLECTUAL PROPERTY LICENSE AGREEMENT**

 

***BETWEEN***

 

***“CYMER”CORPORATION AND INTEL CORPORATION***

 

This Intellectual Property License Agreement(“Agreement”) is entered into as of January 28, 2004(“Effective Date”) byand between Cymer, Inc. a Nevada corporation, having an office at 17075Thornmint Ct., San Diego, California, 92127, USA, (“Cymer”) and IntelCorporation, a Delaware corporation, having an office at 2200 Mission CollegeBlvd., Santa Clara, California 95052, U.S.A. (“Intel”).

 

**WHEREAS**, Cymer intends tocommercialize EUV systems for an anticipated business opportunity,

 

**NOW, THEREFORE,**IN CONSIDERATIONOF THE MUTUAL COVENANTS AND PROMISES CONTAINED HEREIN, THE PARTIES AGREE ASFOLLOWS:

 

# **1.****             ****DEFINITIONS**

#  

## 1.1.                              “EUV” meansextreme ultraviolet lithography.

##  

## 1.2.                              “EUV SourceSystem” means a system including all apparatus to deliver debris-free, in-band,collected photons based on a [...***...] or a [...***...] to the intermediate focusof the EUV lithography system for generating a supply of such collected photonsat a central wavelength in the range of [...***...].

##  

## 1.3.                              “IntermediateFocus” means the illuminator entrance of the EUV Lithography System, suchilluminator entrance being downstream of the collection optics, debrismitigation system and optional spectral purity filter.

##  

## 1.4.                              “EUVLithography System” means an integrated exposure tool containing an EUV SourceSystem and capable of creating lithographic patterns in semiconductor wafers.

##  

## 1.5.                              “CymerLicensed Products” shall mean a Complete EUV Source System that is sold byCymer as Cymer’s own product (subject to the limitations set forth inSection 2.6) and not on behalf of another.

##  

## 1.6.                              “Complete EUVSource System” means an EUV Source System and supporting EUV metrology deviceswhich are designed, developed and marketed by or for Cymer for integration intoan EUV Lithography System and which are assembled substantially into the formordinarily sold to EUV Lithography System producers under Cymer’s name.

##  

## 1.7.                              “IntegratedCircuit” shall mean an integrated unit comprising one or more active and/orpassive circuit elements associated on one or more substrates, such unitforming, or contributing to the formation of, a circuit for performingelectrical functions (including, if provided therewith, housing and/orsupporting means). The definition of “Integrated Circuit” shall also includeany and all firmware, microcode or drivers, if needed to cause such circuit toperform substantially all of its intended hardware functionality, whether ornot such firmware, microcode or drivers are shipped with such integrated unitor installed at a later time.

##  

## 1.8.                              “Intel’sProducts” shall mean any Integrated Circuits.

 

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*Confidential Treatment Requested

 

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**INTEL CONFIDENTIAL**

 

## 1.9.                              “Patents”shall mean all classes or types of patents other than design patents(including, without limitation, originals, divisions, continuations,continuations-in-part, extensions or reissues), and applications for theseclasses or types of patent rights in all countries of the world that are ownedor controlled by the applicable party or any of its Subsidiaries or to whichsuch entities have the right to grant licenses, and to the extent that the applicableparty or its Subsidiaries has the right to grant licenses within and of thescope set forth herein and without the requirement to pay consideration to anythird party (other than employees of the applicable party or its Subsidiaries)for the grant of a license under this Agreement.

##  

## 1.10.                        “PatentRights” shall mean all rights which may be exercised to enforce Patents.

##  

## 1.11.                        “IntelPatents” shall mean those Patents and patent applications that are listed inExhibit A and all EUV Source System Patents that become owned by Intel duringthe Term of this Agreement and including their divisionals or continuations orboth.

##  

## 1.12.                        “TradeSecrets” shall mean know-how, inventions, discoveries, concepts, ideas,methods, processes, designs, formulae, technical data, drawings,specifications, data bases, models, prototypes, specimens,  notes, documents, schematics, layout, andother data and materials and any other confidential information , includingthat have been obtained and will be by Intel from its EUV related agreementswith various universities, that will be transmitted to Cymer by Intel duringthe Term of this Agreement as part of this Agreement.

##  

## 1.13.                        “Subsidiary”shall mean any corporation, partnership, joint venture, limited liabilitycorporation or other entity, now or hereafter, in which a party owns orcontrols (either directly or indirectly) the following:

##  

### (a)                                  an interestsufficient to receive at least thirty percent (30%) of the profits and/orlosses of such entity (in the event that such entity distributes its profits orlosses); and

###  

### (b)                                 either of thefollowing:

###  

#### (1)                                  if such entityhas voting shares or other voting securities, more than fifty percent (50%) ofthe outstanding shares or securities entitled to vote for the election ofdirectors or similar managing authority; or

####  

#### (2)                                  if such entitydoes not have voting shares or other voting securities, more than fifty percent(50%) of the ownership interest that represents the right to make decisions forsuch entity.

####  

An entity shall be deemed to be a Subsidiary underthis Agreement only so long as:

 

### (c)                                  the partyowning or controlling the interest required under subsection (a) above hasnot contractually or otherwise agreed to forfeit any part of its share of theprofits or losses distributed by the entity; and

###  

### (d)                                 the partyowning or controlling the shares, securities, or other ownership interestrequired under subsections (b)(1) or (b)(2) above has not contractually or otherwisesurrendered, limited, or in any other way constrained its authority to electthe managing authority or make decisions for the entity; and

###  

### (e)                                  all requisiteconditions of being a Subsidiary are met.

###  

### 1.14.                        “Assert” meansto bring an action of any nature before any legal, judicial, arbitration,administrative, executive or other type of body or tribunal that has or claimsto have authority to adjudicate such action in whole or in part.  Examples of such body or tribunal include,without

 

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### limitation, United States State and FederalCourts, the United States International Trade Commission and any foreign counterpartsof any of the foregoing.

###  

### 1.15.                        “Cymer’sProducts” means all products manufactured by or for Cymer other than (i)Chipsets; and (ii) microprocessors that are hardware or software compatiblewith one or more Intel microprocessors.

###  

# **2.****             ****GRANT OF RIGHTS**

#  

## 2.1           Subject to the termsof this Agreement, Intel grants to Cymer a [...***...] license, [...***...], under the Intel Patentsto

##  

## (a)                                  make, use,sell, offer to sell, import and otherwise dispose of Cymer Licensed Product,and

##  

## (b)                                 make, havemade, use and/or import any components solely for integrating into CymerLicensed Product.

##  

## 2.2         The licensesgranted to Cymer to make, use, sell, offer for sale, import or otherwisedispose of Cymer Licensed Product includes the right to assemble and combineIntegrated Circuits into Cymer Licensed Product, but does not include anylicense to make, have made, use, sell, offer to sell, import or otherwise disposeof Integrated Circuits themselves, including those Integrated Circuits that areincluded in Cymer Licensed Product except as replacement parts for CymerLicensed Product.

##  

## 2.3         Subject to theterms of this Agreement, Intel grants to Cymer a [...***...] license, [...***...], under the Trade Secrets,to use internally and to have Cymer third party contractors make components(subject to requirements of confidentiality consistent with this Agreement), tomake use, sell offer for sale, import or otherwise dispose of Cymer LicensedProducts.

##  

## 2.4         License Fee.

##  

## (a)                                  Inconsideration for the license grants from Intel pursuant to this Agreement,Cymer shall pay to Intel a [...***...] license fee, and payments will be due starting onthe last business day of the [...***...] during which the first high volume manufacturingshipment of Cymer Licensed Product is made.  The [...***...] license feewill be in the amount of [...***...] which will be paid for a period of [...***...].  Each license fee payment will be made via check payable to IntelCorporation, Post Contract Management, JF3-149, 2111 N.E. 25thAvenue, Hillsboro, OR 97124; or wire transfer to the following account:  CITIBANK, New York, New York, ABA#021000089, General Account # 38385954.

##  

#### 2.5  Clarification Regarding Patent Laundering.  The parties understand and acknowledge thatthe licenses granted hereunder are intended to cover only Cymer LicensedProduct, and are not intended to cover manufacturing activities that Cymer mayundertake on behalf of third parties whose intention is to re-sell the CymerLicensed Product as a standalone component and not otherwise use the CymerLicensed Product or integrate in another tool (patent laundering activities).

####  

## 2.6         Licenses andSubsidiaries.

##  

### (a)                                  Intention forSubsidiaries to be Bound.

###  

### (1)                                  Except asexpressly set forth herein, the parties intend that this Agreement shall extendto all of each party’s Subsidiaries. The parties agree that to the extent

 

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### they are not already bound, each party shalluse reasonable and diligent efforts to ensure that all such Subsidiaries arebound by the terms of this Agreement.

###  

### (b)                                 Either partyto this Agreement shall have the right to request a written confirmation ordenial from the other party to this Agreement that a specific Subsidiary is (oris not) bound by this Agreement.  Aparty receiving such a request shall provide such written confirmation(including a full explanation in support of such confirmation or denial) within30 days after the receipt of the request.

###  

### (c)                                  The partiesrepresent, warrant and covenant that they shall not participate in the creationor acquisition of Subsidiaries where a primary purpose of such creation oracquisition is to extend the benefits of this Agreement to a third party andagree that any such attempt to extend such benefits shall not extend thislicense to such third party.

###  

### (d)                                 If either party or one of their Subsidiaries (“First Party”) owns or hasthe right to enforce or control the enforcement of any rights in any Patent butsuch First Party does not have the right to license those rights to the otherparty to this Agreement (the “Second Party”) hereunder (“Restricted PatentRights”), then, if and to the extent that such Restricted Patent Rights wouldhave been licensed to the Second Party if the First Party had the right tolicense such patents:

###  

### (1)                                  the First Party grants to the Licensed Products of the Second Party an immunityfrom suit for infringement of such Restricted Patent Rights of a scopeidentical to the rights that would have been granted hereunder if the FirstParty had the right to license such Restricted Patent Rights;

###  

### (2)                                  the First Party shall not give its assent if that assent is required toallow a third party entity to assert the Restricted Patent Rights against the LicensedProducts of the Second Party; provided that (i) this restriction shall bedropped if the Second Party first initiates litigation alleging infringement ofPatent Rights against the holder of the Restricted Patent Rights, and (ii) inany event the First Party shall be free to fulfill its preexisting contractualobligations to provide assistance and support as may be required under therelevant contractual agreement; and

###  

### (3)                                  the First Party promises to off-set of or repay over to the Second Partyany monetary awards for damages and/or royalties actually to be paid or paid bythe Second Party and owing to said First Party as a result of litigation by theholder of the Restricted Patent Rights against the Licensed Products of the SecondParty to the extent attributable to such Restricted Patent Rights.

###  

### (e)                                  The extensionof license rights to a Subsidiary shall apply only during the time period whensuch Subsidiary meets all requirements of a Subsidiary.  However, if a Subsidiary of a party thatholds any Patents that are licensed to the other party hereunder ceases to meetall requirements of being a Subsidiary, the licenses granted by such Subsidiaryto the other party under this Agreement shall continue for the life of suchPatents even after such entity ceases to meet all the requirements of being aSubsidiary.

###  

## 2.7         No OtherRights.  No other rights are grantedhereunder, by implication, estoppel, statute or otherwise, except as expresslyprovided herein.  Specifically, (i)except as expressly provided in Section 2, nothing in the licenses grantedhereunder or otherwise contained in this Agreement shall expressly or byimplication, estoppel or otherwise give either party any right to license theother party’s Patents to others, and (ii) no license or immunity is granted byeither party hereto directly or by

 

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## implication, estoppel or otherwise to anythird parties acquiring items from either party for the combination of LicensedProducts with other items or for the use of such combination.

##  

## **3.COVENANT NOT TO SUE**

##  

3.1 Covenant Not to Sue.  Cymer agrees that Cymer shall not Assert anyPatent Right against Intel, its Subsidiaries or affiliates, or their customers(direct or indirect), distributors (direct or indirect), agents (direct or indirect)and contractors (direct or indirect), wherein contractors does not includeequipment suppliers, for the manufacture, use, import, offer for sale or saleof any of Intel’s Products or any process or any method or any componentemployed in the manufacture, testing, distribution or use thereof for so longas Intel does not Assert any Patent Right against Cymer, its subsidiaries oraffiliates, or their customers (direct or indirect), distributors (direct orindirect), agents (direct or indirect) and contractors (direct or indirect) forthe manufacture, use, import, offer for sale or sale of Cymer’s Products or anyprocess or method employed in the manufacture, testing, distribution or usethereof.   For clarity, an injunctionagainst an equipment supplier is not precluded by any of the above.

 

# **4. EFFECTIVE DATE, TERM AND TERMINATION FOR CAUSE**

#  

## 4.1 Effective Date.  ThisAgreement is effective as of the last date of signature on this Agreement.

##  

## 4.2 Term.  This Agreementand the rights and licenses granted hereunder shall become effective on theEffective Date, and shall continue in effect until terminated by a party pursuantto Section 4.3.

##  

## 4.3 Termination for Cause.

##  

### (a)                                  A party mayterminate this Agreement including all rights and licenses hereunder to theother Party upon written notice of termination to the other party if the otherparty hereto commits a material breach of this Agreement and does not correctsuch breach within sixty (60) days after receiving written notice complainingthereof.

###  

### (b)                                 This Agreementand the licenses herein shall be terminated if Cymer does not commercialize aCymer Licensed Product by [...***...] (or other date mutually agreed by the parties) orif the parties mutually agree to terminate this Agreement.

###  

### (c)                                  A party heretomay terminate this Agreement including all rights and licenses hereunder to theother Party upon sixty (60) days written notice of termination to the otherparty given at any time upon or after:

###  

### (1)                                  the filing bythe other party of a petition in bankruptcy or insolvency;

###  

### (2)                                  anyadjudication that the other party is bankrupt or insolvent;

###  

### (3)                                  the filing bythe other party of any petition or answer seeking reorganization, readjustmentor arrangement of its business under any law relating to bankruptcy orinsolvency;

###  

### (4)                                  theappointment of a receiver for all or substantially all of the property of theother party;

###  

### (5)                                  the making bythe other party of any assignment for the benefit of creditors;

###  

### (6)                                  the institutionof any proceedings for the liquidation or winding up of the other party’sbusiness or for the termination of its corporate charter;

 

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### (7)                                  the otherparty undergoes a Change of Control. For purposes of this Section 4.3, “Change of Control” shall mean atransaction or a series of related transactions in which (i) one or morerelated parties who did not previously own at least a fifty percent (50%)interest in a party to this Agreement obtain at least a fifty percent (50%)interest in such party, and, in the reasonable business judgment of the otherparty to this Agreement, such change in ownership will have a material effecton the other party’s business, or (ii) a party acquires, by merger, acquisitionof assets or otherwise, all or any portion of another legal entity such thatthe market value of such party after the close of such transaction is greaterthan two and two thirds (2 2/3) of the market value of such party prior to suchtransaction.

###  

### 4.4         Survival.  The provisions of Sections will survive anytermination or expiration of this Agreement: 1, 3 (but only upon Agreement termination as incorporated into aCorporate Purchase Agreement), 4, 5 and 6.

###  

# **5.DISCLAIMER**

#  

## 5.1 Nothing contained in this Agreement shall be construed as:

##  

### (a)                                  a warranty orrepresentation by Intel as to the validity, enforceability or scope of anyclass or type of Patent Right; or

###  

### (b)                                 a warranty orrepresentation that any manufacture, sale, lease, use or other disposition ofLicensed Products hereunder will be free from infringement of any patent rightsof any third party; or

###  

### (c)                                  an agreementto bring or prosecute actions or suits against third parties for infringementor conferring any right to bring or prosecute actions or suits against thirdparties for infringement; or

###  

### (d)                                 conferring anyright to use in advertising, publicity, or otherwise, any trademark, trade nameor names, or any contraction, abbreviation or simulation thereof, of eitherparty; or

###  

### (e)                                  conferring byimplication, estoppel or otherwise, upon Cymer licensed hereunder, any licenseor other right under any Patent Rights, copyright, maskwork, trade secret,trademark other intellectual property right except the licenses and rightsexpressly granted hereunder; or

###  

### (f)                                    an obligationto furnish any technical information or know-how outside of what is transmittedpursuant of this Agreement.

###  

### 5.2  **NO IMPLIED WARRANTIES****. INTEL HEREBY DISCLAIMS ANYIMPLIED WARRANTIES WITH RESPECT TO THE PATENTS LICENSED HEREUNDER, INCLUDINGWITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR APARTICULAR PURPOSE.**

###  

# **6. MISCELLANEOUS PROVISIONS**

#  

## 6.1 Authority.  Intelrepresents and warrants that it has the right to grant to Cymer the licensesgranted hereunder.

##  

## 6.2 No Assignment.  ThisAgreement is personal to the parties, and the Agreement or any right orobligation hereunder is not assignable, whether in conjunction with a change inownership, merger, acquisition, the sale or transfer of all, or substantiallyall or any part of a party’s business or assets or otherwise, eithervoluntarily, by operation of law, or otherwise, without the prior writtenconsent of the

 

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## other party, which consent may be withheld at the sole discretion ofsuch other party.  Any such purportedassignment or transfer shall be deemed a breach of this Agreement and shall benull and void.  This Agreement shall bebinding upon and inure to the benefit of the parties and their permittedsuccessors and assigns.

##  

## 6.3  Notice.  All notices required or permitted to begiven hereunder shall be in writing and shall be delivered by hand, or ifdispatched by prepaid air courier or by registered or certified airmail,postage prepaid, addressed as follows:

 
| If to Cymer:  Law Department  Cymer, Inc.  17075 Thornmint Ct.  San Diego, CA 92127 |   | If to Intel:  General Counsel  Intel Corporation  2200 Mission College Blvd.  Santa Clara, CA 95052  United States of America |
|-------------------------------------------------------------------------------------|--------|-------------------------------------------------------------------------------------------------------------------------------|

 

Such notices shall be deemed to have beenserved when received by addressee or, if delivery is not accomplished by reasonof some fault of the addressee, when tendered for delivery.  Either party may give written notice of achange of address and, after notice of such change has been received, anynotice or request shall thereafter be given to such party as above provided atsuch changed address.

 

## 6.4 No Rule of Strict Construction.  Regardless of which party may have drafted this Agreement, norule of strict construction shall be applied against either party.  If any provision of this Agreement isdetermined by a court to be unenforceable, the parties shall deem the provisionto be modified to the extent necessary to allow it to be enforced to the extentpermitted by law, or if it cannot be modified, the provision will be severedand deleted from this Agreement, and the remainder of the Agreement willcontinue in effect.

##  

## 6.5  Taxes.  Each party shall be responsible for thepayment of its own tax liability arising from this transaction.

##  

## 6.6  Entire Agreement.  This Agreement embodies the entireunderstanding of the parties with respect to the subject matter hereof, andmerges all prior discussions between them, and neither of the parties shall bebound by any conditions, definitions, warranties, understandings, orrepresentations with respect to the subject matter hereof other than as expresslyprovided herein.  No oral explanation ororal information by either party hereto shall alter the meaning orinterpretation of this Agreement.

##  

## 6.7 Modification; Waiver. No modification or amendment to this Agreement, nor any waiver of anyrights, will be effective unless assented to in writing by the party to becharged, and the waiver of any breach or default will not constitute a waiverof any other right hereunder or any subsequent breach or default.

##  

## 6.8 Governing Law.  ThisAgreement and matters connected with the performance thereof shall beconstrued, interpreted, applied and governed in all respects in accordance withthe laws of the United States of America and the State of California, withoutreference to conflict of laws principles.

##  

## 6.9 Jurisdiction.  Inteland Cymer agree that all disputes and litigation regarding this Agreement andmatters connected with its performance shall be subject to the exclusive jurisdictionof the courts of the State of California or of the Federal courts sittingtherein.

##  

## 6.10 Dispute Resolution. All disputes arising directly under the express terms of this Agreementor the grounds for termination thereof shall be resolved as follows:  First, the senior management of both partiesshall meet to attempt to resolve such disputes.  If the senior management cannot resolve the disputes,

 

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## either party may make a written demand for formal disputeresolution.  Within thirty (30) daysafter such written demand, the parties agree to meet for one day with animpartial mediator and consider dispute resolution alternatives other thanlitigation.  If an alternative method ofdispute resolution is not agreed upon within thirty (30) days after the one-daymediation, either party may begin litigation proceedings.

##  

## 6.11  Confidentiality of Terms.  The parties hereto shall keep the terms ofthis Agreement confidential and shall not now or hereafter divulge these termsto any third party except:

##  

### (a)                                  with the priorwritten consent of the other party; or

###  

### (b)                                 to anygovernmental body having jurisdiction to call therefor; or

###  

### (c)                                  subject to (d)below, as otherwise may be required by law or legal process, including to legaland financial advisors in their capacity of advising a party in such matters;or

###  

### (d)                                 during thecourse of litigation so long as the disclosure of such terms and conditions arerestricted in the same manner as is the confidential information of otherlitigating parties and so long as (a) the restrictions are embodied in acourt-entered Protective Order and (b) the disclosing party informs the otherparty in writing at least ten (10) days in advance of the disclosure; or

###  

### (e)                                  in confidence tolegal counsel, accountants, banks and financing sources and their advisorssolely in connection with complying with financial transactions.

###  

### 6.12  Trademarks. Neitherparty may use the other party’s name or trademarks in advertisement, materials,web sites, press releases, interviews, articles, brochures, banners,letterhead, business cards, project reference or client listings, without theother’s prior review and written consent.

###  

### 6.13  Compliance with Laws.  Anything contained in this Agreement to thecontrary notwithstanding, the obligations of the parties hereto and of theSubsidiaries of the parties shall be subject to all laws, present and future,of any government having jurisdiction over the parties hereto or theSubsidiaries of the parties, and to orders, regulations, directions or requestsof any such government.

###  

### 6.14  Force Majeure.  The parties hereto shall be excused from anyfailure to perform any obligation hereunder to the extent such failure iscaused by war, acts of public enemies, strikes or other labor disturbances,fires, floods, acts of God, or any causes of like or different kind beyond thecontrol of the parties.

 

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IN WITNESS WHEREOF, the parties hereto have causedthis Agreement to be duly executed on the date below written.

 

 
| INTEL CORPORATION |               | Cymer, Inc.     |
|-------------------|--------------------|-----------------|
|              |               |            |
|              |               |            |
| By:               | /s/ CHRIS PHILIPPI |            | By: | /s/ ROBERT P. AKINS |
|              |               |            |
|              |               |            |
| Chris Philippi    |               | Robert P. Akins |
| Printed Name      |               | Printed Name    |
|              |               |            |
| Capital Manager   |               | CEO             |
| Title             |               | Title           |
|              |               |            |
| 2/4/04            |               | 2/3/04          |
| Date              |               | Date            |
|                   |                    |                 |  |  |

 

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EXHIBIT A – LICENSED PATENTS

 
| **Intel P#**      |   | **matter_title**  |
|-------------------|--------|-------------------|
|              |   |              |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |
| [...***...] |   | [...***...] |

 

EXHIBIT B – TRADE SECRETS

 

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