Exhibit 10.27


 


***
TEXT OMITTED AND FILED SEPARATELY

CONFIDENTIAL TREATMENT REQUESTED

Under 17 C.F.R. Sections 200.80(b)(4) and 240.24b-2


 


PATENT SUBLICENSE


AGREEMENT


 


THIS PATENT SUBLICENSE AGREEMENT (“Sublicense
Agreement”), made as of this 7 day of Nov., 2003 (the “Effective Date”), by and
between SRL-EUV, LLC, a
Massachusetts limited liability company with principal offices at 15 Ward
Street, Somerville, Massachusetts 02143 (“EUV”) and CYMER, INC., a Nevada corporation, with principal offices at
17075 Thornmint Court, San Diego California 92127 (“Cymer”).


 


WHEREAS, Cymer has exclusively
licensed by separate agreement dated May 14, 2001 (the “Patent License
Agreement”) the rights to certain issued patents, patent applications, trade
secrets, confidential information and know-how with respect to (i) [...***...]
power devices with specialized circuits useful in powering certain lasers and
[...***...] (defined below), and (ii) [...***...] light sources useful in Lithography,
Metrology and  [...***...] applications
(defined below) which have been exclusively licensed to Cymer; and


 


WHEREAS, Cymer sublicensed to
Science Research Laboratory, Inc., a Massachusetts corporation with principal
offices at 15 Ward Street, Somerville, Massachusetts 02143 (“SRL”), by separate
agreement dated May 14, 2001 (the “2001 Patent Sublicense Agreement”) certain
rights held by Cymer under the Patent License Agreement in order for SRL to
develop certain technologies in the Field of Use; and


 


WHEREAS, EUV is the assignee of SRL
under the 2001 Patent Sublicense Agreement and holds all of SRL’s rights under
the 2001 Patent Sublicense Agreement a copy of which is annexed hereto as
Exhibit “A”; and


 


WHEREAS,  EUV is willing to grant to Cymer a sublicense to all rights held
by EUV under the 2001 Patent Sublicense Agreement pursuant to the terms and
conditions set forth below.


 


NOW, THEREFORE, for and in consideration of
the premises, covenants, conditions, and undertakings hereinafter set forth,
the parties hereto agree as follows:


 


ARTICLE I


 


DEFINITIONS


1.1          [...***...]


 


1.2          DUV shall mean the deep ultraviolet region
of the electromagnetic spectrum with wavelengths, referenced to vacuum, ranging
from 150 nanometers (“nm”) up to but not exceeding 250nm.


 


1.3          Extreme UV shall mean the extreme
ultraviolet region of the electromagnetic spectrum with wavelengths, referenced
to vacuum, ranging from 10nm up to but not exceeding 50nm.


 


1.4          Field of Use shall mean all applications of
the Sublicensed Technology except applications for use as Light Sources
operating in the DUV, Extreme UV, VUV, and Soft X-ray wavelengths of the
spectrum for Lithography (defined below), 
Metrology (defined below) and/or [...***...] applications (defined below).


 


1.5          [...***...]


 


1.6          Further Sublicensee shall mean any
unrelated third-party to whom Cymer grants or has granted, directly or
indirectly, a right to manufacture, have manufactured, use and/or market,
distribute or sell the Product(s).


 


1.7          Light Source shall mean any source of
electromagnetic radiation whether coherent or incoherent, whether a laser or a
lamp.


 


***CONFIDENTIAL TREATMENT REQUESTED


 

















 


1.8          Lithography shall mean the art of
transferring a spatial pattern from a reference mask to the surface of a wafer
and/or to the surface of membranes to be made into masks and reticles.


 


1.9          Metrology shall mean the art of measuring
distances or surface topology.


 


1.10        Product(s) shall mean any product in the
Field of Use.


 


1.11        Soft X-ray shall mean that region of the
electromagnetic spectrum ranging from 0.5 nm up to but not exceeding 3.0 nm.


 


1.12        Sublicensed Technology shall mean all
confidential information, trade secrets, know-how, methods or processes and
other materials, tangible and non-tangible, including, but not limited to:
technical and non-technical data and information, drawings, sketches, plans,
diagrams, specifications and/or other documents or materials containing said
information and data licensed by Cymer under the Patent License Agreement in
the Field of Use as well as any Cymer Invention (as defined in the Patent
License Agreement) or Cymer’s rights under any Joint Invention (as defined in
the Patent License Agreement); in each case, which have been sublicensed by
Cymer to EUV as assignee of SRL under the 2001 Patent Sublicense Agreement.


 


1.13        Sublicensed Patents shall mean the patents
or patent applications (i) which have been licensed to Cymer under the
Patent License Agreement and which have been sublicensed by Cymer to EUV as
assignee of SRL under the 2001 Patent Sublicense Agreement; and
(ii) which, in the absence of the rights being granted under the
sublicense granted by EUV to Cymer under this Sublicense Agreement, would be
infringed by Cymer’s manufacture, sale or use of the Product(s) (as defined
herein) at any time during the Term of this Sublicense Agreement.


 


1.14        VUV shall mean vacuum ultraviolet
wavelengths in the region of the electromagnetic spectrum ranging from 120nm up
to but not exceeding 150nm.


 


1.15        Term shall have the meaning as set forth in
Section 6.1 below.


 


ARTICLE II


 


GRANT OF SUBLICENSE


 


2.1          EUV
hereby grants to Cymer an irrevocable 
exclusive, worldwide, royalty-free sublicense, with right to further
sublicense pursuant to Section 2.3: (x) to use the Sublicensed
Technology for the purpose of making, having made, selling or having sold
Products in the Field of Use; and (y) under the Sublicensed Patents to
make, have made, use and sell the Product(s) in the Field of Use.


 


2.2          Cymer
shall not obtain any rights of any kind in the Sublicensed Patents or the
Sublicensed Technology except as specifically set forth in this Sublicense
Agreement.


 


2.3          Cymer
shall have the right to further sublicense the Sublicensed Technology and
Sublicensed Patents.  Cymer shall
provide EUV with a significantly completed draft of each further sublicense
agreement just prior to its execution; provided, however, that EUV shall have
no right to object to any term or condition of such sublicense.  Cymer agrees to require its Further
Sublicensees to maintain the same confidentiality obligations as required of
Cymer pursuant to Article 8, below.


 


2.4          In
consideration of the rights and licenses granted hereunder, Cymer agrees to pay
to EUV a sublicense fee in the amount of [...***...] due January 5, 2004.


 


***CONFIDENTIAL TREATMENT
REQUESTED


 


2

















 


ARTICLE III


 


IMPROVEMENTS
AND INVENTIONS


 


3.1          The
parties’ respective rights of ownership with respect to improvements and
inventions shall be as set forth in Article III of the Patent License
Agreement.


 


3.2          The
parties’ acknowledge and agree that Section 3.2 of the 2001 Patent Sublicense
Agreement shall no longer be of any force or effect.


 


ARTICLE IV


 


PATENT PROSECUTION AND INFRINGEMENT


 


4.1          Cymer
agrees that it shall, at its own expense, prepare, file, prosecute and maintain
the Sublicensed Patents, in such countries as Cymer deems appropriate, and
shall be responsible for conducting any interferences, re-examinations,
reissues, oppositions or requests for patent term extensions relating to the
Sublicensed Patents.  EUV shall
cooperate fully in the preparation, filing and prosecution of any Sublicensed
Patents under this Sublicense Agreement. 
Notwithstanding the foregoing, Cymer shall not take any such action that
could adversely affect a patent or application owned by EUV, unless such action
is mutually agreed by the parties. 
Cymer shall provide EUV with sufficient written notice of any decision
not to prepare, file, prosecute and maintain any Sublicensed Patent so that EUV
may take such action on its own.


 


4.2          Each
party will promptly notify the other party of any written claim received by it
alleging infringement by a Product of the proprietary rights or patents of a
third-party.  Cymer shall assume the
defense of any action relating to any such allegation of patent infringement.


 


4.3          Each
party will promptly notify the other party hereto of the possible infringement
by a third-party of a Product or any of the Sublicensed Technology or
Sublicensed Patents comprising a Product. 
Cymer shall have the sole right to take any action it deems necessary,
at its sole cost and expense, with respect to any infringement of a Product or
the Sublicensed Patents.


 


4.4          Within
the Field of Use, if Cymer fails to bring an infringement action as provided in
Section 4.3 above within sixty (60) days after notice of alleged
infringement, EUV shall be permitted to take any action it deems necessary, at
its sole cost and expense, in order to protect its research, royalty and other
payment interests.


 


4.5          If
either party brings an infringement action under this Agreement, the other
party shall cooperate fully, including if required to bring such action, the
furnishing of a power of attorney.


 


ARTICLE V


 


REPRESENTATIONS AND WARRANTIES


 


5.1          EUV. 
EUV represents and warrants that: 
(i) it has full power to enter into this Sublicense Agreement;
(ii) it has not previously granted and will not grant any rights in
conflict with the rights and licenses granted herein; (iii) it has obtained all
necessary corporate approvals to enter and execute into this Sublicense
Agreement; and (iv) it shall fully comply with the requirements of any and all
applicable federal, state, local and foreign laws, regulations, rules and
orders of any governmental body having jurisdiction over the activities
contemplated by this Sublicense Agreement.


 


5.2          Cymer. 
Cymer represents and warrants that: 
(i) it has full power to enter into this Sublicense Agreement; (ii) it
has obtained all necessary corporate approvals to enter and execute into this
Sublicense Agreement; and (iii) it shall fully comply with the requirements of
any and all applicable federal, state, local and foreign laws, regulations,
rules and orders of any governmental body having jurisdiction over the
activities contemplated by this Sublicense Agreement.


 


3

















 


5.3          Disclaimer.  EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SUBLICENSE
AGREEMENT, NEITHER PARTY MAKES ANY REPRESENTATION OR EXTENDS ANY WARRANTIES OF
ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR
VALIDITY OF ANY PATENTS ISSUED OR PENDING.


 


ARTICLE VI


 


TERM


 


6.1          Term. This Sublicense Agreement shall
become effective as of the Effective Date and shall continue until it expires
as follows (the “Term”):


 


6.1.1       Products. 
As to each Product, in each country, worldwide, unless earlier
terminated in accordance with this Article 6, on the date that neither the
manufacture, sale nor use of such Product would be covered by a Sublicensed
Patent in such country.


 


6.1.2       Entire Agreement.  This Sublicense Agreement shall expire in its entirety upon the
expiration of this Sublicense Agreement with respect to all Products in all
countries, worldwide.


 


6.1.3       Expiration of Patent Sublicense.  This Sublicense Agreement shall expire in
its entirety upon the expiration of the Patent License Agreement with respect
to all Products, in all countries, worldwide.


 


6.2          No Termination.  The parties agree that upon payment of the sublicense fee set
forth in Section 2.4 neither this Sublicense Agreement nor the Patent License
Agreement shall be terminated.


 


6.3          Continuing Obligations; Survival.  It is understood that expiration of this
Sublicense Agreement shall not relieve a party from any obligation or liability
which, at the time of such expiration, has already accrued to the other
party.  The provisions of
Sections 2.2, 6.3, and Articles 1, 4, 5, 7, 8, 10 and 11 shall
survive the expiration of this Sublicense Agreement.  Except as otherwise expressly provided in this Article 6, all
other rights and obligations of the parties shall terminate upon expiration of
this Sublicense Agreement.


 


ARTICLE VII


 


INDEMNIFICATION


 


7.1          Indemnification by Cymer.  Cymer shall indemnify, defend and hold
harmless EUV, its directors, officers, employees, agents, successors and
assigns from and against all liabilities, expenses or costs (including
reasonable attorneys’ fees and court costs) arising out of any claim,
complaint, suit, proceeding or cause of action against any of them by a
third-party alleging (i) the negligent or intentionally wrongful acts or
omissions of Cymer; (ii) any breach by Cymer of any of its representations
or warranties set forth in Article V of this Sublicense Agreement; or
(iii) breach of any warranty relating to the Products including, but not
limited to defects in design, manufacturing or claims under any theory of
product liability.


 


7.2          Indemnification by EUV.  EUV shall indemnify, defend and hold
harmless Cymer, its directors, officers, employees, agents, successors and
assigns from and against all liabilities, expenses, and costs (including
reasonable attorneys’ fees and court costs) arising out of any claim,
complaint, suit, proceeding or cause of action against any of them by a
third-party alleging (i) the negligent or intentionally wrongful acts or
omissions of EUV; or (ii) any breach by EUV of any of its representations
or warranties set forth in Article V of this Sublicense Agreement.


 


7.3          Indemnification Procedure.  A party that intends to claim indemnification
(the “Indemnitee”) under this Article 7 shall promptly notify the indemnifying
party (the “Indemnitor”) in writing of any third party claim, suit or
proceeding or cause of action included within the indemnification described in
this Article 7, above (each a “Claim”) with respect to which the Indemnitee
intends to claim such indemnification, and the Indemnitor


 


4

















 


shall have sole control of the defense and/or
settlement thereof; provided that the Indemnitee shall have the right to
participate, at its own expense, with counsel of its own choosing in the
defense and/or settlement of such Claim. 
The indemnification under this Article 7 shall not apply to amounts paid
in settlement of any Claim if such settlement is effected without the consent
of the Indemnitor.  The Indemnitee under
this Article 7, and its employees, at the Indemnitor’s request and expense,
provide full information and reasonable assistance to Indemnitor and its legal
representatives with respect to such Claims.


 


ARTICLE
VIII


 


CONFIDENTIALITY


 


8.1          Confidential Information.  The parties may from time to time disclose
to each other Confidential Information in connection with this Agreement.  “Confidential Information” shall mean any
information disclosed by one party to the other party which information is not
generally known to the public and may include by way of example, but without
limitation (a) information concerning the disclosing party’s management,
financial condition, financial operations, purchasing activities, costs of
products, sales activities, marketing activities and business plans, (b)
information concerning or resulting from the disclosing party’s research and
development work, including, but not limited to, improvements, discoveries,
inventions and new product ideas, (c) information of the disclosing party
concerning actual or potential vendors or customers, (d) the disclosing party’s
computer programs, including source code, object code, algorithms, methods,
structure and related information including diagrams, flow charts, designs,
specifications, manuals, descriptions, instructions, explanations and
improvements, and (e) information concerning the disclosing party’s products,
including plans, blueprints, parts and assembly drawings, specifications,
descriptions, designs, diagrams, dimensions, tolerances, parts and components,
in each case, whether delivered orally, in writing, electronically or through
any other media.  Notwithstanding the
foregoing or anything herein to the contrary, Confidential Information shall
not include any information that, in each case the receiving party can prove by
written documentation:  (i) was already
known to the receiving party, other than under an obligation of
confidentiality, at the time of disclosure; (ii) was generally available to the
public or otherwise part of the public domain at the time of its disclosure to
the receiving party; (iii) became generally available to the public or
otherwise part of the public domain after its disclosure and other than through
any act or omission of the receiving party in breach of this Sublicense
Agreement; (iv) was subsequently disclosed to the receiving party by a person
other than the disclosing party who was not bound by any confidentiality obligation;
or (v) was developed entirely independently by the receiving party without
use of, reliance on, or reference to the Confidential Information of the other
party.


 


8.2          Confidentiality.  Each party agrees to protect, hold and maintain in strict confidence
all Confidential Information of the other party for a period of ten (10) years
from the date of disclosure.  Without
limiting the foregoing, neither party shall use or disclose the Confidential
Information of the other party, except as otherwise permitted by this
Sublicense Agreement or as may be necessary or useful to exercise its rights or
perform its obligations under this Sublicense Agreement provided that
employees, agents, and representatives of the receiving party shall be given
access to Confidential Information only on a need-to-know basis and only if
they are bound by obligations of confidentiality comparable to those contained
herein.  Nothing contained in this
Article 8 shall prevent either party from disclosing any Confidential
Information of the other party to (a) accountants, lawyers or other
professional advisors or in connection with a merger, acquisition or securities
offering, subject in each case to the recipient entering into an agreement to
protect such Confidential Information from disclosure; or (b) is required by
law or regulation to be disclosed; provided, however, that the party subject to
such disclosure requirement has provided written notice to the other party
promptly upon receiving notice of such requirement in order to enable the other
party to seek a protective order or otherwise prevent disclosure of such
Confidential Information.


 


ARTICLE IX


 


NON-SOLICITATION


 


9.1          During
the Term of this Sublicense Agreement, neither party shall contact, divert, or
influence, or attempt to divert or influence any personnel of the other for
purposes of providing employment to such personnel


 


5

















 


without the prior written consent of the
current employer.  In the event that
either party breaches this non-solicitation covenant and hires (the “New
Employer”) an employee or consultant who, within the six (6) months immediately
preceding the date of hire by the New Employer, was employed by the other party
(the “Prior Employer”), the New Employer shall pay to the Prior Employer as
compensation for the loss of the employee/consultant, three (3) times the first
year’s total compensation being paid by the New Employer to the
employee/consultant.


 


9.2          All
payments due hereunder shall be made, in-full, within thirty (30) days of the
first day the employee/consultant provides services to the New Employer.


 


ARTICLE X


 


LIMITATION OF LIABILITY


 


EXCEPT FOR BREACH OF
SECTION 8, NEITHER PARTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE
LAW, SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FROM ANY CAUSE WHATSOEVER, AND
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDING
NEGLIGENCE), FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARY
DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUES,
SAVINGS, BUSINESS INTERRUPTION AND THE LIKE) UNDER OR RELATING TO THIS
AGREEMENT, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.


 


ARTICLE XI


 


MISCELLANEOUS


 


11.1        Notices. 
All notices required or permitted hereunder shall  be given in writing and sent by facsimile
transmission (with confirmation of receipt), or mailed postage prepaid,
certified or registered mail, return receipt requested, or sent by a nationally
recognized express courier service, or hand-delivered at the following address:


 


	
  To EUV:

  	
   

  	
  SRL-EUV, LLC

  15 Ward Street

  Somerville, Massachusetts 02143

  Attn.: Joseph Mangano

  Facsimile: (703) 243-7139

  
	
   

  	
   

  	
   

  
	
  To Cymer:

  	
   

  	
  Cymer, Inc.

  17075 Thornmint Court

  San Diego, California 92127

  Attn.: Dr. Robert P. Akins, CEO

  Facsimile: (858) 385 6090

  



 


All notices shall be deemed made upon receipt
by the addressee as evidenced by the applicable written receipt or, in the case
of a facsimile, as evidenced by the confirmation of transmission.


 


11.2        Public Announcements.


 


11.2.1     Subject
to Section 11.2.2, all publicity, press releases and other announcements
relating to this Sublicense Agreement or the transaction contemplated hereby
shall be reviewed in advance by, and be subject to the approval of, both parties;
provided, however, that either party may, without the consent of the other, (i)
disclose the existence and general subject matter of this Sublicense Agreement
without the other party’s approval and (ii) subject to Article 8 disclose the
terms of this Sublicense Agreement as required to comply with applicable
securities laws.  Any party that
determines applicable securities laws require it to file this Sublicense
Agreement shall first provide the other party a copy of the redacted version it
intends to file and shall provide the other party the


 


6

















 


opportunity to comment thereon.  Notwithstanding the foregoing, the filing
party will make the final decisions regarding the version hereof to file.


 


11.2.2     Subject
to Article 8, any party that determines applicable securities laws require it
to disclose publicly (i) non-financial information with respect to its
relationship to the other party or (ii) any aspect of the other party’s
business, shall first provide the other party a copy of the disclosure it
intends to disclose and shall provide the other party the opportunity to
comment thereon.  Notwithstanding the
foregoing, the disclosing party will have final decision-making authority with
respect to its disclosures.


 


11.3        Captions and Section References.  The titles, headings or captions in this
Sublicense Agreement do not define, limit, extend, explain or describe the
scope or extent of this Sublicense Agreement or any of its terms or conditions
and therefore shall not be considered in the interpretations, construction or
application of this Sublicense Agreement.


 


11.4        Severability.  Whenever possible, each clause, subclause, provision or condition
of this Sublicense Agreement shall be interpreted in such manner as to be
effective and valid under applicable law, but if any clause, subclause,
provision or condition of this Sublicense Agreement should be prohibited or
invalid under applicable law, such clause, subclause, provision or condition
shall be considered separate and severable from this Sublicense Agreement to
the extent of such prohibition or invalidity without invalidating the remaining
clauses, subclauses, provisions and conditions of this Sublicense Agreement, so
long as the remaining Sublicense Agreement reflects the economic intentions of
the parties as evidenced by this Sublicense Agreement as a whole.


 


11.5        Entire Agreement.  Except for the Solid State Modulator License and Manufacturing
Agreement dated as of January 26, 1995, the Patent License Agreement and/or the
2001 Patent Sublicense Agreement, this Sublicense Agreement embodies the entire
agreement and understanding of the parties hereto in relation to the subject
matter hereof and supersedes any and all prior understandings and agreements, whether
written or oral in regard to such matters. 
Cymer hereby acknowledges and confirms its consent to the assignment of
SRL’s rights and obligations under the 2001 Patent Sublicense Agreement from
SRL to EUV, and EUV hereby confirms that it is bound by the terms and
conditions of the 2001 Patent Sublicense Agreement as a party to such
agreement.  For the avoidance of doubt,
unless otherwise specifically amended, all provisions, including amounts
payable by Cymer, under the Solid State Modulator License and Manufacturing
Agreement dated as of January 26, 1995, the Patent License Agreement, and the
2001 Patent Sublicense Agreement shall remain in full force and effect.


 


11.6        Amendment. 
No amendment, change or modification of any of the terms, provisions or
conditions of this Sublicense Agreement shall be effective unless made in
writing and signed on behalf of the parties hereto by their duly authorized
representatives.


 


11.7        Counterparts.  This Sublicense Agreement may be executed in one or more
counterparts, by facsimile, or both, each of which shall be deemed to be an
original document, but all such separate counterparts shall constitute only one
and the same Sublicense Agreement.


 


11.8        Waiver. 
No waiver of any term, provision or condition of this Sublicense
Agreement, whether by conduct or otherwise, in any one or more instances, shall
be deemed to be or construed as a further or continuing waiver of any such or
other term, provision or condition of this Sublicense Agreement.


 


11.9        Binding Agreement; Succession. This
Sublicense Agreement shall be binding upon and shall inure to the benefit of
the parties and their respective successors and permitted assigns.  Neither party may assign this Sublicense
Agreement without the prior written approval of the other party which approval
shall not be unreasonably withheld or delayed; provided, however, that either
party may assign this Sublicense Agreement without the prior written approval
of the other party in connection with the acquisition of such party by, or merger
of such party with or into, a third party or the sale of substantially all of
such party’s assets; provided, further, however that should EUV wish to assign
this Sublicense Agreement to any third-party listed on Exhibit 11.9 attached
hereto and made a part hereof, such written approval of Cymer shall be
required.


 


7

















 


11.10      Independent Contractors.  The relationship of EUV and Cymer
established by this Sublicense Agreement is that of independent contractors.  Nothing in this Sublicense Agreement shall
be construed to create any other relationship between EUV and Cymer.  Neither party shall have any right, power or
authority to assume, create or incur any expense, liability or obligation,
express or implied, on behalf of the other.


 


11.11      Governing Law.  This Sublicense Agreement shall be interpreted under and enforced
in accordance with the laws of the State of Massachusetts.


 


IN WITNESS WHEREOF, the parties have caused
this Sublicense Agreement to be executed as of the day and year first above
written.


 


	
  SRL-EUV,
  LLC

  	
  CYMER,
  INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ JOSEPH MANGANO

  	
   

  	
  By:

  	
   /s/ ROBERT P. AKINS

  
	
   

  	
  Joseph Mangano

  	
   

  	
  Robert P. Akins, Ph.D., CEO

  
					



 


8

















 


EXHIBIT 11.9


 


[...***...]


 


 


9