**Exhibit 10.30**

 
| Execution  Copy |   | Nov.14, 2002 |
|-----------------|--------|--------------|

 

**AMENDED AND RESTATED LICENSE AGREEMENT**

 

**BETWEEN**

 

**INTERNATIONAL BUSINESS MACHINES CORPORATION**

 

**AND**

 

**IBIS TECHNOLOGY CORPORATION**

 

 

| **FIA-2000-0027**                                      |   | **IBM/IBIS CONFIDENTIAL** |
|--------------------------------------------------------|--------|---------------------------|
| IBIS  Know-How License 12-18-2000 Amended and Restated |   |                      |

 

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**TABLE OF CONTENTS**

 
| **Section** |                                                  | **Page** |
|-------------|-------------------------------------------------------|----------|
| 1.          | DEFINITIONS                                           | 4        |
|        |                                                  |     |
| 2.          | SCOPE                                                 | 7        |
|        |                                                  |     |
| 3.          | LICENSES                                              | 9        |
|        |                                                  |     |
| 4.          | CONFIDENTIAL INFORMATION                              | 9        |
|        |                                                  |     |
| 5.          | COMPENSATION                                          | 13       |
|        |                                                  |     |
| 6.          | TERMINATION                                           | 17       |
|        |                                                  |     |
| 7.          | REPRESENTATIONS AND  DISCLAIMERS                      | 19       |
|        |                                                  |     |
| 8.          | TECHNOLOGY  TRANSFER  & TECHNICAL ASSISTANCE | 22       |
|        |                                                  |     |
| 9.          | APPLICABLE LAW                                        | 24       |
|        |                                                  |     |
| 10.         | MISCELLANEOUS                                         | 26       |

 

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    This Amended and Restated License Agreement (the “Agreement”)is by and between **International Business Machines Corporation**(referred to as “IBM”) and **IBIS Technology Corporation** (referred to as“IBIS”), each referred to as a “Party” or, collectively referred to as the“Parties”.

 

**WHEREAS:****                                      **IBIS has previously developed expertise in products for theimplantation and annealing of semiconductor wafers with oxygen;

 

**WHEREAS:****                                  **  IBM has developed an improved method of implantation andannealing;

 

**WHEREAS:****                                  **IBIS wishes to operate in its facility implantation machinesand associated equipment owned by IBM and/or owned by IBIS;

 

**WHEREAS:****                                  **IBIS and IBM have executed agreements on the consignment ofsuch implantation machines and associated equipment and on the purchase ofwafers by IBM implanted and annealed by IBIS;

 

**WHEREAS:**                                   Concurrently with this Agreement, IBIS and IBM are enteringinto an agreement defining the joint development by IBIS and IBM of an enhancedprocess for implanting silicon wafers with oxygen and/or other ions andannealing such wafers (hereinafter referred to as the “Joint DevelopmentAgreement”);

 

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**WHEREAS:****                                  **IBIS wishes to sell products incorporating IBM’s tradesecrets; and

 

**WHEREAS:**                                  IBM wishes to receive royalties from IBIS;

 

 NOW THEREFORE, in consideration of the contributions of knowledgeand skill in the areas of their respective expertise, in the cooperative undertaking specified herein, and in viewof the mutual promises, commitments and efforts relating thereto, it hereby isagreed between the Parties that as of November 14, 2002 this Agreement isamended and restated as follows:

 

**1**** **** **** ****DEFINITIONS**

 

    Words shall have their normally accepted meanings as employedin this Agreement.  The terms “herein”,“hereunder” and “hereof”, unless specifically limited, shall refer to theentire Agreement.  The words “shall” and“will” are mandatory, the word “may” is permissive, the word “or” is notexclusive, the words “includes” and “including” are not limiting and thesingular includes the plural.  Thefollowing terms shall have the described meanings:

 

1.1                                 “Confidential Information” shall mean technical and businessinformation relating to oxygen implantation and annealing methods and

 

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disclosedby or on behalf of a Party that is subject to the applicable restrictions ondisclosure of this Agreement.

 

1.2                                 “Consigned Equipment” shall mean the following equipmentpresently owned by IBM: two model 1000 oxygen implant tools manufactured byIBIS (IBM tool numbers 36F1070AA and 36F107AD),  Kokusai Furnace(12J0503AA), Mini-environment (15J0518AA), IPEC Accumap (15J0525AA) and Mapper(15J0521AA).

 

1.5                                 “Effective Date” shall mean December 15, 2000.

 

1.6                                 “IBM Improvements” shall mean any change, upgrade,modification or revision actually introduced into the Licensed Process by IBMand practiced in production of implanted wafers in IBM’s East Fishkill facilityor in a substitute IBM facility.

 

1.7                                 “Licensed Process” shall mean the process for implantingsilicon wafers with oxygen and annealing, as practiced for commercialproduction in IBM’s East Fishkill, NY, facility on the Effective Date, referredto within IBM as Routes 7N00, 7V00, 7A00 and 2V00.  IBM represents that the twenty (20) wafers delivered to IBIS onor about November 10, 2000 were implanted and annealed with the LicensedProcess.  The Licensed Process shallinclude IBM Improvements only if such IBM Improvements are subsequentlylicensed to IBIS.  The Licensed Processshall further include the Enhanced Process, as defined in the Joint DevelopmentAgreement.

 

1.8                                 “Licensed Product” shall mean: (a) silicon wafers orsubstrates implanted with oxygen and annealed according to, with the aid of,based on

 

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or using information disclosed hereunder (including theLicensed Process) that, as of the date of disclosure, is not excluded from theobligations of confidentiality by the provisions of Section 4.6; and (b)semiconductor devices and integrated circuits formed on silicon substrateslicensed according to the preceding clause.

 

1.9                                 “Net Revenue” shall mean the price charged or recognized (asdetermined under United States generally accepted accounting principles) forLicensed Products sold by IBIS in normal, bona fide, commercial transactions,without any deductions other than for duties, taxes, freight and insurance,returns or credit allowances on sales of such Licensed Products to the extentto which such deductions are actually paid or allowed.

 

    In the case of Licensed Products sold to a Subsidiary orother entity in other than an arm’s length transaction, Net Revenue shall bedeemed to be the greater of: (a) gross receipts actually received; or (b) grossreceipts recognized (as determined under United States Generally AcceptedAccounting Principles) for Licensed Products based upon the invoice pricegenerally available to unaffiliated third parties for the sale, lease ordisposition of similar quantities of the same type of products or services;without any deductions other than for duties, taxes, freight and insurance,returns or credit allowances on sales of such Licensed Products to the extentto which such deductions are actually paid or allowed.

 

1.10                           “Subsidiary” shall mean a corporation, company, or otherentity: (i) more than fifty percent (50%) of whose outstanding shares orsecurities (representing the right to vote for the election of directors orother managing authority) are, now or hereafter, owned or controlled, directlyor indirectly,

 

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by a Party hereto, but such corporation, company, or otherentity shall be deemed to be a Subsidiary only so long as such ownership orcontrol exists; or (ii) which does not have outstanding shares  orsecurities, as may be the case in a partnership, joint venture orunincorporated association, but fifty percent (50%) or more of whose ownershipinterest representing the right to make the decisions for such corporation,company or other entity is, now or hereafter, owned or controlled, directly orindirectly, by a Party hereto, but such corporation, company, or other entityshall be deemed to be a Subsidiary only so long as such ownership or controlexists.

 

    Notwithstanding the foregoing, for the purposes of thisAgreement, an entity more than 35% of whose shares or ownership interest isowned or controlled by a Party and that has a licensing relationship with suchParty covering manufacturing process knowhow and imposing obligations on suchParty to provide updated knowhow to such entity shall be deemed to be aSubsidiary of such Party.

 

1.11                           “Term” shall mean the period of time this Agreement is ineffect, which will commence on the Effective Date and continue until theexpiration of a patent license agreement between the parties executed togetherherewith, unless sooner terminated pursuant to Section 7.

 

**2**** ****  SCOPE**

 

2.1                                 IBIS agrees to make commercially reasonable efforts to marketand sell Licensed Products.

 

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2.2                                 IBIS has, at its own expense, transferred the ConsignedEquipment once located in IBM’s facility in East Fishkill, NY to IBIS’ facilityin Danvers, MA, and installed and powered on the Consigned Equipment.  IBIS has, at its own expense, exerted itsbest commercial efforts to debug and make available for production theConsigned Equipment.  Terms for theconsignment of the Consigned Equipment are set forth in the consignmentagreement that was executed between the Parties on or about the Effective Date.

 

2.3                                 IBM shall disclose the Licensed Process to IBIS as set forthin Section 8 below.

 

2.4                                 Each Party shall have a Program Manager and a TechnicalCoordinator as follows:

 
| For  IBM: | Program  Manager:   |
|-----------|---------------------|
|      | Daniel  J. Armbrust |
|      |                |

 

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|       | Technical  Coordinator: |
|------------|-------------------------|
|       | Devendra  K. Sadana     |
|       |                    |
| For  IBIS: | Program  Manager:       |
|       | Martin  J. Reid         |
|       |                    |
|       | Technical  Coordinator: |
|       | Robert  P. Dolan        |

 

EachParty may change its Program Manager and/or Technical Coordinator by givingwritten notice to the other Party.

 

2.5                                   Each of the Program Managers shall be responsible for therepresentation of his Party’s interest under this Agreement.  The Program Managers shall meet on a regularbasis to review progress.

 

2.6                                   The Technical Coordinators or their designees shall supervisethe exchange of information during the course of the Agreement.

 

**3 **** ****LICENSES**

 

3.1                                   IBM hereby grants toIBIS a worldwide, nonexclusive royalty-bearing license, revocable only pursuantto Section 6, under IBM’s trade secret rights in the Licensed Process to make,import, export and sell Licensed Products.

 

3.2                                   No license is granted in this agreement by a Party to anotherParty under any patent or trademark.

 

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3.3                                   Nothing in this Agreement shall be construed as amending ormodifying in any way a patent license agreement between the parties signedconcurrently herewith.

 

**4 **** ****CONFIDENTIALINFORMATION**

 

4.1                                   The prior agreement between the Parties concerningconfidential information, having a term beginning on March 24, 2000 andrelating to oxygen implantation technology and methods, is terminated as of theEffective Date and all information disclosed thereunder shall be deemed to havebeen disclosed on the Effective Date.  Thehandling of all confidential information exchanged between the Parties,including any confidential information transferred under the prior agreementshall be in accordance with this Section 4. All further disclosures of confidential information shall only be madein accordance with this Section 4.

 

4.2                                   It is understood that receipt of Confidential Informationunder this Agreement will not create any obligation in any way limiting orrestricting the assignment and/or reassignment of employees within thereceiving Party.

 

4.3                                   For a confidentiality period as set forth below, thereceiving Party agrees to use the same care and discretion to safeguardConfidential Information of the disclosing Party and to avoid release of suchConfidential Information outside of the receiving Party as it employs withsimilar embodiments of information of its own which it does not desire topublish, disclose, or disseminate, but in no event less than reasonable care.

 

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4.4                                   Following the period of confidentiality as specified below,no obligation of any kind is assumed by, or is to be implied against thereceiving Party with respect to any Confidential Information of the disclosingParty and the receiving Party will be free to disclose, publish and disseminatesuch Confidential Information to others without limitation.

 

4.5                                  Disclosureof such Confidential Information of the disclosing Party will not be precludedif such disclosure is:

 

(a)               in response to a valid order of a court or other governmentalbody; provided, however, that the receiving Party will first have given noticeto the disclosing Party and made a reasonable effort to obtain a protectiveorder requiring that the information and/or documents so disclosed be used onlyfor the purposes for which the order was issued; or

 

(b)              otherwise required by law (including, without limitation,applicable securities laws).

 

4.6                                   The obligations of confidentiality herein shall not apply toinformation that:

 

(a)               Is already in the possession of the receiving Party or any ofits Subsidiaries without obligation of confidentiality;

 

(b)              Is independently developed by the receiving Party or any ofits Subsidiaries;

 

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(c)               Is or becomes publicly available without breach of thisAgreement;

 

(d)              Is rightfully received by the receiving Party from a thirdparty;

 

(e)               Is released for disclosure by the disclosing Party with itswritten consent; or

 

(f)                 Is required to be disclosed in a patent application.

 

4.7                                   All disclosures under this Agreement of ConfidentialInformation by IBM or IBIS, as the disclosing Party, shall preferably be madeby or under the supervision of its Technical Coordinator, or his designee, tothe receiving Party’s Technical Coordinator, or his designee.  Any such designee shall be identified by aParty’s Technical Coordinator in writing to the Technical Coordinator of theother Party.  In the event ofinadvertent disclosure from one Party to another, either Party may give noticeto the other Party within six (6) months of such inadvertent disclosure thatsuch inadvertently disclosed information was confidential and not within thescope of this Agreement and the receiving Party shall promptly return suchinformation and cease use thereof.

 

4.8                                   All disclosures of information will be deemed to benonconfidential unless specifically designated at the time of disclosure asincluding the Confidential Information of a Party.

 

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4.8.1                        Notwithstanding the foregoing, Inventions created andConfidential Information disclosed in the course of joint work or discussionsbetween the Parties shall be deemed to be the Confidential Information of theemployer(s) of the individuals creating or disclosing them, whether or not thepertinent information is marked or summarized in a resume.  The Parties agree to make reasonable effortsto document and mark such joint work or discussions.

 

4.9                                   IBIS’s obligations of confidentiality with respect to theLicensed Process shall extend until December 31, 2017.  The confidentiality obligations of theParties with respect to confidential information disclosed hereunder, otherthan the Licensed Process, shall extend until December 31, 2007.

 

**5 **** ****COMPENSATION**

 

5.1                                   IBIS has paid to IBM a nonrefundable technology transfer feeof [*] upon the signing of this Agreement.

 

5.2                                   From the Effective Date, and continuing through the Term, foreach Licensed Product sold, IBIS shall pay to IBM in the United States ofAmerica a royalty comprising [*] of Net Revenue for each such Licensed Productsold by IBIS.

 

5.3                                   The royalties of this Section 5 shall accrue when a LicensedProduct is first sold. For the purpose of determining such royalty, LicensedProducts shall be considered sold when invoiced.  If not invoiced, then Licensed Products are to be considered soldwhen delivered or when paid for, if paid for before delivery.  If not invoiced, delivered or paid forbefore delivery,

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*Confidential treatment has been requested for the language omitted and such languagehas been separately filed with the Securities and Exchange Commission.

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Licensed Products are to be considered soldat the earlier of when put into use or when possession is transferred to athird party.  When Licensed Products aresold in conjunction with other products or services provided by IBIS, IBISagrees to separately invoice such Licensed Products from such other products orservices.

 

5.4                                   Accrued royalties shall be calculated and paid on a quarterlybasis.  Within thirty (30) days of theend of a calendar quarter, IBIS shall deliver to IBM a report showing thenumber and identification (type and wafer size) of Licensed Products soldduring such quarter, the Net Revenue from such Licensed Products during suchquarter, and the royalties payable thereon. At such time, IBIS shall also make payment of such payableroyalties.  Any royalties paid to IBMare nonrefundable, but overpayments shall be credited against future royaltiesdue hereunder.  IBIS may deduct from theaccrued royalties calculation in this Section 6.6 those royalties accrued onLicensed Products which have been returned to IBIS or for which creditallowances have been made.

 

5.5                                   For a period ending two (2) years after the expiration ortermination of this Agreement, IBIS agrees to maintain adequate documentationand accounting records for demonstration of compliance with all the provisionsof this Agreement, including the provisions concerning disclosure and use ofthe Licensed Process.  At IBM’s requestand expense, and upon thirty  (30) dayswritten notice to IBIS, IBIS shall permit IBM or a mutually acceptableindependent third party auditor and/or technical expert to review all suchdocumentation and accounting records and/or to inspect IBIS’s facilities duringregular business hours.

 

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5.6                                   IBIS shall be liable for interest on any and all overduepayments, fees, and royalties required to be made to IBM under this Agreement,commencing on the date such overdue payment, fee, or royalty becomes due, at anannual rate of eighteen per cent (18%). If such interest rate exceeds the maximum legal rate in the jurisdictionwhere a claim therefor is being asserted, the interest rate shall be reduced tosuch maximum legal rate.  Nothing inthis Section 5.6 shall limit IBM’s rights under Section 6.

 

5.7                                   IBIS shall bear and pay, and indemnify and hold IBM harmlessfrom any and all taxes (including, without limitation, sales, use, royalty, valueadded, and property taxes) imposed by any national government (including anypolitical subdivision thereof) of any country, as the result of the existenceof this Agreement or the exercise of rights hereunder, and IBM shall not beresponsible for any taxes that arise from the foregoing.  Notwithstanding the foregoing, IBIS shallnot be liable for any taxes or assessments arising from the purchase by IBM ofgoods and services hereunder or based on the net income of IBM.

 

5.8                                   IBIS shall pay all royalties and other payments due hereunderin the United States of America in United States dollars.

 

5.9                                   All royalties, fees, and payments to IBM that result fromthis Agreement are to reference this Agreement and the license number assignedthereto and be sent by electronic funds transfer to the following address:

 

    International Business Machines Corporation

    The Bank of New York

    1 Wall Street

    

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New York, New York 10286

    United States of America

    Credit Account No. 890-0209-674

    ABA No.  0210-0001-8

 

    A written statement containing the same information shall bemailed to:

 

    Director of Licensing

    International Business Machines Corporation

    North Castle Drive, MD - NC119

    Armonk, New York, 10504-1785

    United States of America

    FAX: (914) 765-4380

 

with a copy to:

    

Michael Poponiak

    International Business Machines Corporation

    2070 Route 52

    Hopewell Junction, NY 12533;

 

    Each Party may change the person to receive notice or itsaddress for receiving notice by giving written notice to the other Party.

 

**6**    **TERMINATION**

 

6.1                                   In the event of any material default, the non-defaultingParty may give written notice of such default (a “Notice of Default”) tothe defaulting Party.  If the defaultingParty fails to cure such default within a cure period of thirty (30) days afterreceiving the Notice of Default, the non-defaulting Party may then terminatethis Agreement by a second written notice (a

 

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“Notice of Termination”) to the defaulting Party.  The Notice of Termination shall be effectiveupon receipt.

 

6.2                                   Notwithstanding Section 6.1, in the event of any materialdefault specified in this Section 6.2, the non-defaulting Party may immediatelyterminate this Agreement by giving a Notice of Termination without any Noticeof Default.  The Notice of Terminationshall be effective upon receipt. Circumstances where such immediate termination is permitted by a Partyare:

 

(a)               If the other Party becomes insolvent, is dissolved orliquidated, has a petition in bankruptcy, reorganization, dissolution orliquidation or similar action filed by or against it, is adjudicated abankrupt, or has a receiver appointed for its business.

 

(b)              If the other Party has all or a substantial portion of itscapital stock or assets expropriated or attached by any government entity.

 

(c)               If the other Party makes an assignment for the benefit ofcreditors.

 

(d)            If the other Party is subject to property attachment, court injunction,or court order materially affecting its operations under this Agreement.

 

(e)               If the other Party breaches its obligation of confidentialityunder Section 4.

 

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    Circumstances where such immediate termination is permittedby IBM are:

 

(f)               If IBIS materially breaches the terms of its license       under Section 3.

 

6.3                                   If this Agreement is terminated by IBM due to materialdefault under this Agreement by IBIS:

 

(a)       all IBM Confidential Information previously transferred to,or in the possession of, IBIS shall be returned, at IBIS’s expense, to IBMforthwith, but no later than thirty (30) days from the date of termination; (b)  the licenses granted to IBIS in Section 3 shall terminate.

 

6.4                                   If this Agreement is terminated by IBIS due to materialdefault under this Agreement by IBM:

 

(a)               the licenses (and royalty obligations) of Section 3.1 and 5shall survive; and b) each Party’s obligations of confidentiality shallsurvive.

 

6.5                                   In the event of termination by either Party for any reason,all financial obligations due or accrued hereunder as of the date oftermination shall remain payable.

 

6.6                                   Except as stated in Sections 6.3, 6.4, and 6.5, to the extenta particular right or obligation herein does not have a specifically identifiedsurvival period, all rights and obligations in this Section or in any otherSection in this Agreement which by their nature survive the expiration or

 

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termination of this Agreement will remainin effect beyond any termination for the time period reasonably necessary toaccomplish their purpose and shall bind and inure to the benefit of theparties, their legal representatives and successors.  By way of example and not as a limitation, sections 7, 9 and 10shall survive any expiration or termination of this Agreement.

 

**7 **** ****REPRESENTATIONSAND DISCLAIMERS**

 

7.1                                   IBIS recognizes that equipment and wafer purchases arecomplex decisions and that IBM can make no commitment that IBM or IBM’sSubsidiaries will purchase any products from IBIS.

 

 

7.2                                   This Agreement is nonexclusive.  IBM and IBIS recognize and agree that each has been and maycontinue to be active in the development of technology, and/or manufacture andsale of products indirectly or directly relating to the technologies, processesand products contemplated by this Agreement, and IBIS acknowledges and agreesthat IBM will not be precluded by this Agreement from pursuing such activitiesindependent of IBIS, including with third parties, and further, IBMacknowledges and agrees that IBIS will not be precluded by this Agreement frompursuing such activities independent of IBM, including with third parties.

 

7.3                                   IBM and IBIS each represent that they have the right to disclosethe information disclosed hereunder and to grant the licenses grantedhereunder.

 

7.4                                   Nothing contained in this Agreement will be construed as:

 

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7.4.1                        conferring on either Party any rights to use in advertising,publicity, or other marketing activities any name, trade name, trademark, orother designation of the other Party hereto, including any contraction,abbreviation, or simulation of any of the foregoing without the prior writtenand signed agreement of the other Party; or

 

7.4.2                        conferring by implication, estoppel, or otherwise upon eitherParty hereunder any license or other right except the licenses and rightsexpressly granted hereunder to a Party hereto; or

 

7.4.3                        a warranty or representation that the manufacture, sale,lease, use, or other disposition of systems, processes, circuits, devices,packages, software, and products licensed hereunder will be free frominfringement of intellectual property rights of third parties; or

 

7.4.4                        a warranty that the recipient Party will successfullymanufacture products, or a particular volume of products, using the LicensedProcess; or

 

7.4.5                        an obligation on either Party to bring or prosecute actionsor suits against third parties for infringement, or to defend actions or suitsfrom third parties for infringement, or to secure and/or maintain any of itsintellectual property rights; or

 

7.4.6                        in any way limiting the rights which a Party has outside thescope of this Agreement.

 

7.5                                   ALL INFORMATION, TECHNOLOGY, IMPROVEMENTS, INVENTIONS,CONFIDENTIAL INFORMATION, INTELLECTUAL PROPERTY RIGHTS,

 

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BACKGROUND INTELLECTUAL PROPERTY RIGHTS, LICENSED PROCESS,PRODUCTS, MATERIALS, ASSISTANCE, AND SERVICES PROVIDED BY EITHER PARTYHEREUNDER ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING,WITHOUT LIMITATION, ANY WARRANTY OF NONINFRINGEMENT AND THE IMPLIED WARRANTIESOF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

 

7.6                                   Each Party acknowledges its responsibility to make its ownevaluation of the risks of bringing any product based on information providedunder this Agreement to market, or otherwise to use such information.

 

7.7                                   Each Party disclaims any warranty that the recipient will beable to reproduce the results of the disclosing Party and each Partyacknowledges that it may be not be able to use disclosed information withoutfurther research and development.

 

7.8                                   IBM disclaims any warranty under Section 2-312 of the UniformCommercial Code that the information disclosed hereunder or that the transferby IBIS of articles made by IBIS with the aid of such information will be freeof claims of infringement of patents of third parties.  IBIS disclaims any warranty under Section2-312 of the Uniform Commercial Code that information disclosed hereunder orthat the transfer by IBM of articles made by IBM with the aid of the suchinformation will be free of claims of infringement of patents of third parties.  Nothing in this Agreement will overridethese disclaimers or operate, expressly or by implication, to grant a warrantyof noninfringement of third party patents.

 

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**8  TECHNOLOGY TRANSFER AND TECHNICALASSISTANCE**

 

8.1                                   Subject to Sections 8.2 and 8.3 and with the sole exceptionof the Enhanced Process, IBM has provided to IBIS in IBM’s facilities in theUnited States the recipe for the Licensed Process and limited technologytransfer and technical assistance in operation, setup and qualificationprocedures for the Licensed Process.

 

8.2                                   During the period from the Effective Date through three (3)months from the Effective Date, IBM has provided at no additional cost to IBIStechnology transfer and technical assistance as provided in Section 8.1 up to atotal limit of [*]

 

8.3                                   The IBM and IBIS Technical Coordinators shall keep accuraterecords of all limited technical assistance performed and shall compare recordsfor accuracy and provide access to such records to the other Party once a quarteror pursuant to a schedule mutually agreed to. Queries made by IBIS from its facilities shall be logged at a minimum ofone person-hour.

 

8.4                                   IBIS, at its own cost and expense, shall be responsible foracquiring the necessary equipment, materials, and services required toimplement the Licensed Process.

 

8.5                                   After the earlier to occur of the exhaustion of the [*]person-hours of the limited transfer assistance and limited technicalassistance specified in Sections 8.1 and 8.2 and the expiration of the threemonth period specified in Section 8.2, IBM agrees to provide, in IBM’sfacilities in the U.S.A., up to an additional [*] person-hours of transferassistance and technical assistance to

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*Confidential treatment has been requested for the language omitted and suchlanguage has been separately filed with the Securities and Exchange Commission.

 

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IBIS, subject to the availability of requisite personnelwithin IBM, for a period ending on six (6) months after the EffectiveDate.  IBIS agrees to pay IBM for suchlimited additional transfer and technical assistance provided to IBIS at a ratethat is the higher of [*] dollars per person-hour or the then-current rate,plus reasonable travel and living expenses. IBIS may make site visits to IBM’s East Fishkill facilities uponreasonable notice to IBM and upon mutual agreement of the Parties.  A maximum of five (5) IBIS employees mayvisit IBM’s facilities at any one time. The travel and living expenses of such visiting IBIS employees shall beat the sole expense of IBIS.  The amountof limited additional transfer assistance and technical assistance shall bedefined and determined by mutual agreement.

 

8.6                                   IBM shall invoice charges monthly for the limited additionaltransfer assistance and technical assistance provided for in this

Section 8.

 

8.7                                   IBM shall be under no obligation hereunder to providetransfer or technical assistance to any person or entity other than IBIS, andin particular, not to suppliers or customers of IBIS.

 

8.8                                   IBM will not be obligated to disclose to or to grant rightsunder IBM Improvements to IBIS, but may make such disclosure and/or grant suchrights in its sole discretion.

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*Confidential treatment has been requested for the language omitted and suchlanguage has been separately filed with the Securities and Exchange Commission.

 

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**9 **** ****APPLICABLELAW**

 

9.1                                   This Agreement shall be construed and the legal relationsbetween the Parties shall be determined in accordance with the law of the Stateof New York, U.S.A. without regard to the conflict of law provisionsthereof.  Any proceedings to enforcethis Agreement, or to resolve disputes relating to this Agreement, shall bebrought in the United States District Court for the Southern District of NewYork, Westchester County Division and the Parties hereby consent to theexclusive jurisdiction and venue of such court.  IBM and IBIS waive the right to trial by jury in any matterrelating to this Agreement and agree that any proceeding hereunder shall betried by a judge without a jury.

 

9.1.1                        No action, regardless of form, arising out of this   Agreement may be brought by a Party more than two (2) yearsafter the cause of action has accrued.

 

9.2                                   Each Party agrees to pay the other Party’s attorney’s feesand costs of litigation if the first Party, for any reason whatever, bringssuit against the other Party and the other Party is finally adjudicated not tohave liability.

 

9.3                                   If any sentence, paragraph, clause or combination of the samein this Agreement is held by a court of competent jurisdiction to beunenforceable in any jurisdiction, such sentence, paragraph, clause orcombination of same shall be unenforceable in the jurisdiction in which it isinvalid and the remainder of this Agreement shall remain binding on the Partiesin such jurisdiction as if such unenforceable provision had not been containedherein.  The enforceability of suchsentence, paragraph, clause or combination of same in this Agreement, shall beotherwise unaffected and shall remain enforceable in all other jurisdictions.

 

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**10 **** ****MISCELLANEOUS**

 

10.1                           IBIS shall indemnify, defend and hold harmless IBM, IBMSubsidiaries at any level, and the affiliates, directors, officers, agents andemployees of each of IBM and IBM Subsidiaries at any level (collectively, the “IndemnifiedPersons” and each, an “Indemnified Person”) from and against:

 

    (1)  all claims,demands, costs, liabilities, causes of action, actions, obligations, anddamages (including without limitation, reasonable attorneys’ fees, claims,demands or damages for business injury, property damage, environmental harm,personal injury, and/or death, but excluding claims, demands or damagesrelative to any third party’s intellectual property rights which are covered byitem (2) below) of every kind and every nature, in law or in equity, known orunknown, contingent or otherwise, past, present, or future brought by or onbehalf of any third party related to, arising from, or alleged to arise fromIBIS’s (or any IBIS Subsidiaries’ or any IBIS affiliates’) development,manufacture, use, misuse, advertising, labeling, marketing, sale, license,transfer, transportation, storage, support, modification, distribution ordisposal of (a) any Confidential Information, IBM Improvements, LicensedProduct, Consigned Equipment, or Licensed Process (b) any other use ofConfidential Information, IBM Improvements, Licensed Product, ConsignedEquipment, or Licensed Process; and

    

(2)  all claims,demands, costs, liabilities, causes of action, actions, obligations, anddamages (including without limitation, reasonable attorneys’ fees and/orclaims, demands or damages for business injury) brought by or on

 

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behalfof any third party related to, arising from, or alleged to arise from anyviolation of any third party’s intellectual property rights in any country by(a) the use of any Confidential Information, IBM Improvements, ConsignedEquipment, Licensed Process or related process, or Licensed Productmanufactured, sold, licensed or transferred by IBIS (or by any IBIS Subsidiaryor any IBIS affiliate) by any party other than IBM or IBM Subsidiaries, or (b)the sale, license or transfer of any Confidential Information, IBMImprovements, Consigned Equipment, Licensed Process or related process, orLicensed Product by IBIS (or by any IBIS Subsidiary or any IBIS affiliate) toany party other than IBM or IBM Subsidiaries. IBM’s Subsidiaries at any level, and the affiliates, directors,officers, agents and employees of each of IBM and IBM Subsidiaries at any levelshall continue to be indemnified, defended and held harmless per subsections(1) and (2) of this Section 10.1 even after they cease to be such Subsidiaries,affiliates, directors, officers, agents and employees.  Notwithstanding the foregoing, IBIS’obligations of indemnification to IBM with respect to third party claims basedon: (a) the purchase of implanted wafers by IBM from IBIS; (b) the implantationby IBIS of wafers supplied to it by IBM and subsequent shipment of such wafersto IBM; or (c) the use by IBM of implanted wafers included in (a) and (b) aboveshall be governed by terms no less favorable to IBM as those set forth inpurchase agreements or services agreements between IBIS and third parties forcomparable  wafers.

 

    (3)  IBIS and IBIS’sSubsidiaries at any level and affiliates of IBIS release and covenant that theywill not sue or otherwise make any claim against any Indemnified Person,regarding any matter which, if it had been the subject matter of a suit broughtby a third party, would be subject to the provisions of Section 10.1(1) and (2)above.  Each Indemnified Person shallcontinue to be released and the covenantors shall continue to covenant to

 

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themas provided above even after they cease to be IBM, an IBM Subsidiary at anylevel, or an affiliate, director, officer, agent or employee of IBM or an IBMSubsidiary at any level.  If IBIS or anyIBIS Subsidiary at any level or any IBIS affiliate violates this subsection (3)of Section 10.1, IBIS agrees to pay all costs and expenses of defending againstsuch claim or suit incurred by any Indemnified Person, including reasonableattorneys’ fees.  IBIS shall causeIBIS’s Subsidiaries at any level and affiliates of IBIS or any IBIS Subsidiaryat any level to so release and not sue the Indemnified Persons as providedabove.

 

10.1.1                  Without limiting Section 10.1, above, IBIS agrees to pay allexpenses of the defense, including any amount in settlement, of all claims,demands, proceedings and actions which may be asserted against any of theindemnitees specified in Section 10.1, regardless of merit, and agrees topermit IBM, at IBM’s expense, to actively participate in the defense orsettlement of any of the claims demands, proceedings or actions described aboveand, in any claim or action brought against IBIS and not IBM, at the option ofIBM, to permit IBM, at IBM’s expense, to intervene in or become a party to anysuch claims, demands, proceedings or actions. IBM agrees to permit IBIS, at IBIS’s expense and option, to activelyparticipate in the defense or settlement of any of the claims or actionsdescribed above and, in any such action brought against IBM and not IBIS.  Each Party shall promptly notify the otherParty of any action, suit, proceeding, claim or demand of which it becomesaware and relating to the indemnification obligations under Section 10.1.

 

10.2                           IBIS will be solely responsible for determining its pricesand other terms and conditions for its products sold to its customers.  IBIS will be solely

 

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responsible for marketing products to its customers, and IBMwill have no obligation to provide any support of any kind to IBIS’s customers.

 

10.3                           If any Party is rendered wholly or partially unable by forcemajeure to carry out its obligations under this Agreement, and if that Partygives prompt written notice and full particulars of such force majeure to theother Party, the notifying Party will be excused from performance of itsobligations hereunder during the continuance of any inability so caused, butfor no longer period; provided that if payment cannot be made due to theexistence of a banking crisis or international payment embargo, such amount maybe paid within the following thirty (30) days. Such cause will be remedied by the notifying Party as far as possiblewith reasonable speed and effort.  Forthe purposes of this Agreement, force majeure will mean acts of God, acts ofpublic enemies or terrorists, wars, other military conflicts, blockades,insurrections, riots, epidemics, quarantine restrictions, landslides,lightning, earthquake, floods, washouts, civil disturbances, restraints by oractions of any governmental body (including export or security restrictions oninformation, material, personnel, equipment or otherwise), Year 2000 issues andany other acts or events whatsoever, whether or not similar to the foregoing,not within the control of the Party claiming excuse from performance, which bythe exercise of due diligence and commercially reasonable effort that Partywill not have been able to overcome or avoid. If the notifying Party cannot remedy the force majeure situation andresume satisfactory performance within thirty (30) calendar days of the notice,the other Party may at its option immediately terminate this Agreement.

 

10.4                           Each Party agrees to comply with all applicable country,Federal, State, and Local laws, rules, regulations, and ordinances, includingthose of

 

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any duly constituted governmental authorityhaving jurisdiction, and including without limitation, all rules andregulations of the Occupational Health and Safety Administration, EnvironmentalProtection Agency, U.S. Department of Commerce, and U.S. Department ofTransportation, as applicable.  EachParty will do all things necessary to: (a) obtain in a timely manner allrequired licenses and approvals; and (b) comply with all applicable laws, rulesand regulations, including, but not limited to, the Regulations of the UnitedStates Government relating to the export and reexport of technical data,commodities, and products produced as a result of the use of such data.  Each Party hereto agrees that it will notexport or reexport, directly or indirectly, any technology, software and/orcommodities furnished under this Agreement, or the direct product thereof, toany country, or the nationals thereof, specified in such laws, rules,regulations, and ordinances referred to above as an unauthorized destinationwithout first obtaining, as applicable, U.S. Government approvals.

 

10.5                           The captions used in this Agreement are for convenience ofreference only and are not to be used in interpreting the obligations of theParties under this Agreement.

 

10.6                           Nothing contained herein, or done in pursuance of thisAgreement, will constitute the Parties as entering into a joint venture orpartnership or will constitute either Party hereto the agent for the otherParty for any purpose or in any sense whatsoever.

 

10.7                           Either Party may disapprove the assignment of any of itsformer employees to perform work under this Agreement on its premises by theother Party and such personnel will not be so assigned.  Each Party will take

 

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appropriate preventive steps, before the assignment of any ofits employees to perform work under this Agreement, that such Party reasonablybelieves will ensure that its employees will not engage in inappropriateconduct while on the other Party’s premises. Inappropriate conduct will include, but not be limited to: (a) being underthe influence of, or affected by, alcohol, illegal drugs or controlledsubstances or engaging in their use, distribution or sale; (b) the possessionof a weapon of any sort; and (c) harassment, threats or violent behavior.

 

10.8                           Representatives and personnel of each Party, during the timethey are present on the premises of the other Party will be subject to allrules and regulations prevailing on such premises.  Each Party will be responsible for the payment of allcompensation and expense of its respective representatives and personnel.  None of the representatives or personnel ofeither Party will be considered, for any reason, to be an employee or agent ofthe other.

 

10.9                           Each Party represents that it has, or will have in place,established procedures and agreements with its Subsidiaries, employees orothers, including subcontractors and vendors, whose services the Party mayrequire, sufficient to enable the Party to comply with all the provisions ofthis Agreement.

 

10.10                     Any written notice or communication required to be made orgiven to either Party hereto, pursuant to this Agreement, will be effectiveupon delivery and will be sent by facsimile, reputable air courier or othermeans providing verification of delivery, and addressed as set forth below, orto such other address as is designated by written notice given to the otherParty:

 

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10.10.1                         In the case of IBM:

 

      Director of Licensing

      International Business Machines Corporation

      North Castle Drive, MD NC119

      Armonk, New York, 10504-1785

      United States of America

      FAX: (914) 765-4380

 

witha copy to:

 

      IP Counsel, East Fishkill

      International Business Machines Corporation

      2070 Route 52

      Hopewell Junction, New York, U.S.A., 12533-6531

      Fax: (845) 892-6363

 

10.10.2                        In the case of IBIS:

 

      Debra L. Nelson

      IBIS Technology Corporation

      32A Cherry Hill Drive

      Danvers, MA 01923

      Fax:  (978) 777-6570

 

10.11                     In no event will a Party be liable to the other Party forincidental damages, lost profits, lost savings or any other such damages,including consequential damages, regardless of whether the claim is for breachof contract, breach of warranty, tort (including negligence), failure of aremedy to accomplish its purpose or otherwise, even if such Party has beenadvised of the possibility of such damages.

 

10.12                     No failure on the part of any Party to exercise, and no delayin exercising, any right, power, or remedy hereunder will operate as a waiver

 

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thereof or as a waiver of any other right, power, or remedyhereunder or to the performance of any Party; and no single or partial exerciseby a Party of any right, power, or remedy hereunder will preclude any other orfurther exercise thereof or the exercise of any other right, power, or remedy.

10.13                     Except for obligations under Section 5, and 10.1, eachParty’s maximum cumulative liability to the other Party for any and all causesof action arising hereunder or in any way relating thereto, regardless of form,shall be limited to five hundred thousand dollars (US$500,000.00).

 

10.14                     For the period of the Term, each Party agrees not to directlysolicit or recruit employees of the other Party who: (a) are directly involvedin the Project; or (b) have been or are assigned to perform work under thisAgreement.  This does not restrictgeneral solicitations for employment or the right of any employee of one Party,on that employee’s own initiative or in response to general solicitations, toseek employment from the other Party.

 

10.15                     Neither party will assign this agreement to a third party,except as follows.  Either Party mayassign its rights, privileges, and obligations under this Agreement inconnection with a sale or other transfer of such Party’s entire businessrelated to production, development and sale of SOI wafers.  For the avoidance of doubt: (a) a mergerwith, (b) sale of more than fifty per cent of the stock to, or (c) acquisitionby, a third party is included in the scope of this Section 10.15.  Except as provided in the following Section10.15.1, no other assignment of this Agreement, or assignment of rights ordelegation of obligations hereunder, is permitted.  Any attempted assignment or delegation in derogation of theforegoing shall be void.

 

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10.15.1           IBM may, in its sole discretion, assign its right to receivepayments from IBIS under this Agreement to a third party.

 

10.16                     Subject to the provisions of Section 4, neither Party willdisclose the existence, terms and conditions, or subject matter of thisAgreement.

 

10.17                     This Agreement will not be binding upon the Parties until ithas been signed below by or on behalf of each Party, in which event it will beeffective as of the Effective Date. This Agreement constitutes the entire agreement between the Parties withrespect to the subject matter hereof and will supersede all contemporaneous andprevious communications, understandings and agreements, whether oral orwritten, between the Parties relating to the subject matter hereof.  No amendment or modification of thisAgreement will be valid or binding upon the Parties unless made in writing andsigned on behalf of such Parties by their respective authorized representatives.  The requirement of a signed writing may onlybe waived in a signed writing.

 

####

 

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    IN WITNESS WHEREOF, the Parties have caused this Agreement tobe executed by their duly authorized representatives, who by their signaturerepresent that they are so authorized, to be effective as of the EffectiveDate.

 

 
| ACCEPTED AND AGREED TO:                                |              | ACCEPTED AND AGREED TO:                                                                                                                    |   |
|--------------------------------------------------------|-------------------|--------------------------------------------------------------------------------------------------------------------------------------------|--------|
| **IBIS TECHNOLOGY  CORPORATION**                       |              | **   ****INTERNATIONAL  BUSINESS**** ****MACHINES CORPORATION**                                                        |   |
|                                                   |              |                                                                                                                                       |   |   |
|                                                   |              |                                                                                                                                       |   |   |
| By:                                                    | /s/Martin J. Reid |                                                                                                                                       | By:    | /s/Bijan Divari |   |
|                                                   |              |                                                                                                                                       |   |
| Martin J. Reid  President  IBIS Technology Corporation |              | Bijan Davari  Vice President, Technology  and Emerging Products  IBM Microelectronics Division  2070 Route 52  Hopewell Junction, NY 12533 |   |
|                                                   |              |                                                                                                                                       |   |
|                                                   |              |                                                                                                                                       |   |
| Date                                                   | November 14, 2002 |                                                                                                                                       | Date   | November 22, 2002 |   |
|                                                        |                   |                                                                                                                                            |        |  |  |  |  |  |  |

 

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