Exhibit 10.2


 


THE SIMOX AND HYDROGEN LICENSE AGREEMENT


 


 


This Simox and Hydrogen License Agreement (the “Agreement”) is
made by and between Ibis Technology Corporation (“Ibis”) and Nissin Ion
Equipment Company, Ltd. (“Nissin”), each individually a “Party” and
collectively the “Parties” to this Agreement.


 


WHEREAS, Ibis and Nissin are parties to an
Asset Purchase Agreement entered into as of the Effective Date (the “Asset
Purchase Agreement”) and this license is a deliverable at the Closing of the
Asset Purchase Agreement;  and


 


WHEREAS, Nissin wishes to grant Ibis an
exclusive license under the 1-D Patents and Dual Field Patents within the Simox
Field, and non-exclusive licenses under the Bias Scan Patents within the Simox
Field and under the 1-D Patents and Bias Scan Patents within the Hydrogen
Separation Field.


 


NOW, THEREFORE, in consideration of the
foregoing premises and the mutual covenants and agreements set forth herein and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties, each intending to be legally bound, hereby
agree as follows:


 


1. 
Effective Date


 


The effective date of this Agreement shall be October 30, 2008 (“Effective
Date”).


 


2. 
Definitions


 


For the purposes of this Agreement: (i) the terms “hereof,” “herein”
and “herewith” and words of similar import shall, unless otherwise stated, be
construed to refer to this Agreement as a whole (including all of the Exhibits)
and not to any particular provision of this Agreement, and Section and
paragraph references shall be to the Sections and paragraphs of this Agreement,
unless otherwise specified; and (ii) the word “including” and “include”
and words of similar import when used in this Agreement mean “including without
limitation.”  As used herein, the
following terms will have the following meanings:


 


(a) Patent Rights


 


“1-D Patents” shall mean all patents and patent applications
worldwide for inventions disclosed in U.S. Patent Nos. 5,311,028, issued May 10,
1994, entitled “System and Method for Producing Oscillating Magnetic Fields in
Working Gaps Useful for Irradiating a Surface with Atomic and Molecular Ions”;
5,393,984, issued Feb. 28, 1995, entitled “Magnetic Deflection System for
Ion Beam Implanters”; and 5,483,077, issued January 9, 1996, entitled “System
and Method for Magnetic Scanning, Accelerating, and Implanting of an Ion Beam”,
including all U.S. and foreign patents and any patent applications identified
on Exhibit 1.


 


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“Bias Scan Patents” shall mean all patents and patent
applications worldwide for inventions disclosed in U.S. Patent 5,438,203,
issued August 1, 19995, entitled “System and Method for Unipolar Magnetic
Scanning of Heavy Ion Beams”, including all U.S. and foreign patents and any
patent applications identified on Exhibit 2.


 


“Dual Field Patents” shall mean all patents and patent
applications worldwide for inventions disclosed in U.S. Patent 5,672,879,
issued September 30, 1997, entitled “System and Method for Producing
Superimposed Static and Time-Varying Magnetic Fields”, including all U.S. and
foreign patents and any patent applications identified on Exhibit 3.


 


(b) Additional Definitions


 


“Affiliate(s)” of a Party means a company or other legal entity,
which now or hereafter controls, is controlled by, or is under common control
with a Party.  Control shall mean either
direct or indirect ownership or control of: (a) more than fifty percent
(50%) of the outstanding shares or other securities entitled to vote for election
of directors (or other managing authority); or (b) more than fifty percent
(50%) of the equity interest of a company or other legal entity, but only as
long as such control or ownership exists.


 


 “Hydrogen Separation Field” means the
field of  use for the production of
Hydrogen Wafers using high energy, high current ion implantation machines.


 


“Hydrogen
Wafer” means a wafer in which a buried layer of hydrogen has been created
in a semiconductor substrate by implantation of hydrogen ions, which enables fracture
at the  buried layer of hydrogen to
promote separation of the outer layer of the semiconductor substrate from the
remaining body of the substrate.


 


 “Simox Field” means the
field of use for the production of Simox Wafers using ion implantation machines.


 


“Simox Wafer” means a silicon wafer in which a buried layer of
silicon dioxide has been created by implantation of oxygen ions into a silicon
substrate and related processing steps to produce silicon-on-insulator
material.


 


Any additional capitalized terms not defined herein, but defined in the
Asset Purchase Agreement, shall have the meaning ascribed to such terms in the
Asset Purchase Agreement.


 


3. 
License


 


Section 3.1.  Simox Licenses to Ibis.  Subject to the terms and conditions of
this Agreement, Nissin hereby grants Ibis, a perpetual, world-wide,
non-transferable (other than as permitted by Section 5.5), fully paid-up,
exclusive license, with the right to grant sublicenses (through multiple
tiers), to make, have made for Ibis’ and its sublicensees’ account, use, sell,
offer to sell, import and distribute products, product systems and processes
within the Simox Field under the 1-D Patents, Dual Field Patents and any
related Know How.


 


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Subject to the terms and conditions of this Agreement, Nissin hereby
grants Ibis, a perpetual, world-wide, indivisible, non-transferable (other than
as permitted by Section 5.5), fully paid-up, non-exclusive license, with
the right to grant sublicenses (through multiple tiers), to make, have made for
Ibis’ and its sublicensees’ account, use, sell, offer to sell, import and
distribute products, product systems and processes within the Simox Field under
the Bias Scan Patents and any related Know How.


 


Section 3.2  Non-Exclusive Hydrogen
License to Ibis.  Subject
to the terms and conditions of this Agreement, Nissin hereby grants Ibis, a
perpetual, world-wide, sublicensable (through multiple tiers), non-transferable
(other than as permitted by Section 5.5), fully paid-up, non-exclusive
license to make, have made for Ibis’ and its sublicensees’ account, use, sell,
offer to sell, import and distribute products, product systems and processes
within the Hydrogen Separation Field under the 1-D Patents, Bias Scan Patents
and any related Know How.


 


Section 3.3  Enforcement.  The licenses granted
hereunder do not include the right to enforce the patents which shall remain
solely with Nissin.  Within thirty (30)
days of entering into any sublicense permitted under Sections 3.1 and 3.2, Ibis
shall provide notice to Nissin of the entity licensed and the scope of the
license(s) granted to such entity under the 1-D Patents, Dual Field
Patents, Bias Scan Patents and/or any related Know How.


 


Section 3.4  License for [**]
.  The
Parties acknowledge that rights under certain Purchased Patents have been
previously non-exclusively licensed pursuant to the [**]
and the [**] and that these licenses
remain in effect.


 


Section 3.5  Patent Marking.  Ibis will use
reasonable efforts to mark all products covered by a claim licensed hereunder
pursuant to the requirements of 35 U.S.C. § 287 (or successor statute, rule or
regulation) and abroad in accordance with the statutes, rules and
regulations of the relevant jurisdiction in which such products are sold.


 


Section 3.6  Disclaimer.  Other than the
licenses explicitly provided in this Section 3, no other licenses in or to
any other patent rights, whether expressly or by estoppel, implication,
exhaustion, other doctrine of law, equity or otherwise, is granted by this
Agreement.  Nissin reserves any and all
rights not expressly granted herein.


 


4.             Representations
and Warranties


 


Section 4.1  Organization, Power and Standing.  The Parties are duly organized, validly
existing and in good standing, with all requisite corporate power and authority
to own their properties and to conduct its business as and where its business
is now conducted.


 


Section 4.2  Power and Authority.  The Parties have full corporate power and
authority and have taken all required corporate action necessary to permit each
to execute and deliver and to carry out the terms of this Agreement and all
other documents or instruments required or contemplated hereby and none of such
actions will violate any law, rule, regulation, statute or ordinance applicable
to the Parties, violate any provisions of 
any Party’s Certificate of Incorporation or By-Laws, each as amended, or
result in any breach of, or default under, any 


 


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agreement, instrument, order or judgment to which any Party is a party
or by which any of its assets may be bound.


 


Section 4.3  Valid and Binding
Obligation.  This
Agreement constitutes, and each other instrument or agreement to be executed
and delivered by the Parties in accordance herewith will constitute, the valid
and legally binding obligation of the respective Party enforceable against the
Parties in accordance with their respective terms.


 


Section 4.4  Disclaimer.  All other representations and warranties,
including any implied warranty of merchantability, fitness for a particular
purpose or non-infringement, are hereby disclaimed.  Without limitation, the Parties disclaim any
warranty that the Purchased Patents licensed hereunder comprise all the rights
and licenses necessary or desirable to practice, develop, make, sell, offer to
sell or use any products and methods licensed hereunder.


 


5.             Miscellaneous


 


Section 5.1  Entire Agreement.
This Agreement is the entire contract between the Parties with respect to the
subject matter hereof, and supersedes any prior oral or written agreements or
understandings between the Parties. This Agreement may not be modified except
pursuant to a written instrument signed by all Parties.


 


Section 5.2  Construction.  The language used in this Agreement will be
deemed to be the language chosen by the Parties hereto to express their mutual
intent, and no rule of strict construction will be applied against any
Party.


 


Section 5.3  No Waiver.  No waiver or failure to insist upon strict
compliance with any obligation, covenant, agreement or condition of the
Agreement shall operate as a waiver of, or an estoppel with respect to any
subsequent or other failure.  No waiver
of any term or provision hereof shall be effective unless in writing signed by
the Party waiving such term or provision.


 


Section 5.4  Severability.
In case any provision of this Agreement shall be declared invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining
provisions shall in no way be affected or impaired thereby.  For any such provision, the Parties shall
attempt in good faith to negotiate a substitute valid and enforceable provision(s) while
preserving to the fullest extent possible the intent and agreements of the
Parties set forth herein.


 


Section 5.5  Assignment.  This Agreement and any of a Party’s duties or
obligations hereunder shall not be assignable or transferable by such Party
without the express prior written consent of the other Parties, except to a
single purchaser or successor in ownership of substantially all of a Party’s
assets related to the subject matter of this Agreement (e.g., the single
purchaser or successor in ownership that may emerge as a bankruptcy action,
including but not limited to any reorganized debtor).  Any assignment or transfer in violation of
this section shall be void.  Subject to
this paragraph, this Agreement will be binding upon, inure to the benefit of,
and be enforceable by, the Parties and their respective successors and
permitted assigns.


 


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All of the license rights granted under this Agreement shall be deemed
fully retained by and vested as rights to intellectual property protected under
Section 365(n) of the United States Bankruptcy Code (and similar laws
in other jurisdictions) (“Section 365(n)”); and the applicable licensee
shall have all of the rights afforded to non-debtor licensees under Section 365(n).  A material consideration for the Parties
entering into this Agreement is the acknowledgement that this Agreement may not
be assigned (other than as provided by this Section), transferred or rejected
by a Party or its bankruptcy trustee(s).


 


Section 5.6  Governing Law.
This Agreement shall be governed by, construed and enforced in accordance with
the laws of the United States of America and the Commonwealth of Massachusetts
without regard to conflicts of law provisions thereof, and the parties hereby
submit to the exclusive jurisdiction over such disputes in the state and
federal courts of the Commonwealth of Massachusetts and waive any objection to
the propriety or convenience of venue in such courts.


 


Section 5.7  Counterparts.
This Agreement may be executed manually or by facsimile transmission signature
in any number of counterparts. Each of such counterparts shall for all purposes
be deemed an original, and all such counterparts shall together constitute but
one and the same instrument.


 


Section 5.8  Expenses.  Each Party shall bear the expenses incurred
by it relating to the transactions contemplated by this Agreement, including
without limitation fees and expenses of counsel.


 


Section 5.9 Notices.  All notices to a Party hereto shall be in
writing and delivered in person or by courier, with receipt showing acceptance
signature, to such Party at its address set forth below with copies delivered
as specified (or such other address as a Party may from time to time designate
in writing to the other Parties):


 


If to Nissin:


 


Nissin Ion Equipment Co., Ltd.


575 Kuze Tonoshiro-cho


Minami-ku, Kyoto


601-8205, Japan


Attn: President


 


with a copy to:


 


Ropes & Gray LLP


Yusen Building 2F


3-2, Marunouchi 2-chome


Chiyoda-ku, Tokyo


100-0005 Japan


Attn: Hiroyuki Hagiwara


 


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If to Ibis:


 


Ibis Technology Corporation


32 Cherry Hill Drive


Danvers, MA 01923


Attn: President


 


with a copy to:


 


Choate Hall & Stewart


Two International Place


Boston, MA 02110


Attn: Lawrence H. Gennari


 


Notice shall be deemed given upon receipt.


 


Section 5.10  Confidentiality.  No party shall reveal or disclose any of the
terms and conditions of this Agreement to any non-party to this Agreement
except under the following conditions:


 


(1)           with the prior
written consent of the other Party;


 


(2)                                  in response to a
requirement from any governmental body or court that has jurisdiction to
request production of such information, whereby the recipient of this Agreement
so produced shall  protect the
confidentiality of the information produced to the maximum extent allowed under
applicable law;


 


(3)                                  as otherwise required
by law or legal process, whereby the recipient of this Agreement so produced
agrees to protect the confidentiality of the information produced; or


 


(4)                                  to legal counselors,
financial auditors and other similar professionals representing a Party or
representing third parties (and to the third Parties, themselves) in the event
of a merger or an acquisition of all or substantially all of the assets of  a Party or its Affiliates that relate to the
subject matter of this Agreement, whereby the recipient of this Agreement
agrees to protect the confidentiality of the information produced.


 


Should a Party be required to file this Agreement with a securities
regulatory body, the Party will seek to obtain confidential treatment of
mutually agreed portions of this Agreement. 
Notwithstanding the foregoing, the Parties may disclose the general
existence of the ownership interests and licenses granted hereunder to their
customers and suppliers, as a Party’s business so requires.


 


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Intending to be bound thereby, the Parties have caused their duly
authorized representatives to execute this Agreement.


 


 


	
  Ibis Technology Corporation

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Nissin Ion Equipment Company, Ltd.

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


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