Exhibit 10.1


 










*** Text Omitted and Filed Separately Pursuant
to a Confidential Treatment Request Under 17 C.F.R. §§ 200.80(b)(4) and
240.24b-2(b)(1)


 


EXECUTION COPY


 


 


JOINT VENTURE AGREEMENT


 


Of


 


TCZ GMBH,


 


dated as of July 15, 2005


 


among


 


TCZ GMBH,


 


CYMER, INC.,


 


CARL ZEISS SMT AG


 


and


 


CARL ZEISS LASER OPTICS
BETEILIGUNGSGESELLSCHAFT MBH


 





















 


TABLE OF CONTENTS


 


	
   

  	
  PAGE

  
	
   

  	
   

  
	
  ARTICLE 1

  DEFINITIONS

  	
   

  
	
   

  	
   

  
	
  Section 1.01.
  Definitions

  	
  2

  
	
   

  	
   

  
	
  ARTICLE 2

  FORMATION OF THE COMPANY

  	
   

  
	
   

  	
   

  
	
  Section 2.01.
  Formation of the Company

  	
  7

  
	
  Section 2.02.
  Execution of Agreements by Company

  	
  7

  
	
  Section 2.03.
  Execution of Agreements by Zeiss SMT

  	
  8

  
	
  Section 2.04.
  Representations And Warranties

  	
  8

  
	
   

  	
   

  
	
  ARTICLE 3

  PURPOSES OF THE COMPANY

  	
   

  
	
   

  	
   

  
	
  Section 3.01.
  Name

  	
  9

  
	
  Section 3.02.
  Purpose

  	
  9

  
	
  Section 3.03.
  Place of Business of the Company

  	
  10

  
	
  Section 3.04.
  Registered Office; Registered Agent

  	
  10

  
	
  Section 3.05.
  Duration of the Company

  	
  10

  
	
  Section 3.06.
  Title to Company Property

  	
  10

  
	
  Section 3.07.
  Limited Liability

  	
  10

  
	
   

  	
   

  
	
  ARTICLE 4

  PERCENTAGE INTERESTS; CAPITAL CONTRIBUTIONS

  	
   

  
	
   

  	
   

  
	
  Section 4.01.
  Percentage Interests; Capital Contributions

  	
  10

  
	
  Section 4.02.
  Funding Commitments

  	
  10

  
	
  Section 4.03.
  Other Matters

  	
  12

  
	
   

  	
   

  
	
  ARTICLE 5

  DISTRIBUTIONS

  	
   

  
	
   

  	
   

  
	
  Section 5.01.
  Distributions

  	
  12

  
	
  Section 5.02.
  Member’s Right to Require Distribution

  	
  12

  
	
  Section 5.03.
  Amounts Withheld

  	
  12

  
	
  Section 5.04.
  Dissolution

  	
  13

  



 





















 


	
  Section 5.05.
  No Distributions in Violation of Law

  	
  13

  
	
   

  	
   

  
	
  ARTICLE 6

  CORPORATE GOVERNANCE

  	
   

  
	
   

  	
   

  
	
  Section 6.01.
  Members Meeting and Committee of Representatives

  	
  13

  
	
  Section 6.02.
  Officers

  	
  14

  
	
  Section 6.03.
  Business Plan

  	
  15

  
	
  Section 6.04.
  Company Actions Requiring Consent of Members

  	
  17

  
	
  Section 6.05.
  Meetings of Committee of Representatives

  	
  19

  
	
  Section 6.06.
  Decision by Consent

  	
  20

  
	
  Section 6.07.
  Telephonic Meetings

  	
  20

  
	
  Section 6.08.
  Swiss Legal Implementation

  	
  20

  
	
  Section 6.09.
  Nature of Obligations among Members

  	
  21

  
	
   

  	
   

  
	
  ARTICLE 7

  ACCOUNTING AND TAX MATTERS

  	
   

  
	
   

  	
   

  
	
  Section 7.01.
  Fiscal Year/Independent Auditors

  	
  21

  
	
  Section 7.02.
  Books and Records

  	
  21

  
	
  Section 7.03.
  Financial Reports

  	
  22

  
	
  Section 7.04.
  Tax Matters

  	
  22

  
	
   

  	
   

  
	
  ARTICLE 8

  CERTAIN COVENANTS

  	
   

  
	
   

  	
   

  
	
  Section 8.01.
  Press Release

  	
  23

  
	
  Section 8.02.
  Non-Competition

  	
  23

  
	
   

  	
   

  
	
  ARTICLE 9

  EXCULPATION AND INDEMNIFICATION

  	
   

  
	
   

  	
   

  
	
  Section 9.01. Exculpation and
  Indemnification

  	
  23

  
	
   

  	
   

  
	
   

  	
   

  
	
  ARTICLE 10

  DISPOSITION OF INTERESTS

  	
   

  
	
   

  	
   

  
	
  Section 10.01. General

  	
  24

  
	
  Section 10.02. Non-affiliate Transfers

  	
  25

  
	
  Section 10.03. Recognition of Transfers

  	
  26

  
	
   

  	
   

  
	
  ARTICLE 11

  TERMINATION, DISSOLUTION AND LIQUIDATION

  	
   

  
	
   

  	
   

  
	
  Section 11.01. Term

  	
  26

  
	
  Section 11.02. Triggering Events

  	
  26

  



 


ii





















 


	
  Section 11.03. Breach under this
  Agreement or Event of Default under Supply Agreements

  	
  28

  
	
  Section 11.04. Change of Control

  	
  28

  
	
  Section 11.05. Liquidating Events

  	
  29

  
	
  Section 11.06. Winding Up

  	
  30

  
	
  Section 11.07. Rights of Members;
  Resignation

  	
  31

  
	
  Section 11.08. Waiver of Partition

  	
  31

  
	
   

  	
   

  
	
  ARTICLE 12

  MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  Section 12.01. Notices

  	
  31

  
	
  Section 12.02. Amendments; No Waivers

  	
  32

  
	
  Section 12.03. Expenses

  	
  32

  
	
  Section 12.04. Zeiss SMT [. . . *** . . .]

  	
  33

  
	
  Section 12.05. Successors and Assigns

  	
  33

  
	
  Section 12.06. Headings

  	
  33

  
	
  Section 12.07. Entire Agreement

  	
  33

  
	
  Section 12.08. Governing Law

  	
  33

  
	
  Section 12.09. Waiver of Jury Trial

  	
  33

  
	
  Section 12.10. Dispute Resolution;
  Arbitration

  	
  33

  
	
  Section 12.11. Counterparts;
  Effectiveness

  	
  34

  
	
  Section 12.12. Severability

  	
  34

  
	
  Section 12.13. Further Assurances;
  Swiss Corporate Documents

  	
  34

  
	
   

  	
   

  
	
  Exhibits

  	
   

  
	
  Exhibit A—Form of Intellectual Property Agreement

  	
   

  
	
  Exhibit B—Form of Contribution Agreement

  	
   

  
	
  Exhibit C—Form of Supply Agreement

  	
   

  
	
  Exhibit D—Form of Confidentiality Agreement

  	
   

  
	
  Exhibit E—Examples of Incremental Legal and Administrative Costs

  	
   

  
	
  Exhibit F—Swiss Corporate Legal Implementation Timetable

  	
   

  
	
  Exhibit G—Articles of Association (Statuten)
  (English version)

  	
   

  
	
  Exhibit H—Form of Swiss Trust Agreement

  	
   

  
	
  Exhibit I—IMT IP Side Letter

  	
   

  
	
   

  	
   

  
	
  Schedules

  	
   

  
	
  Schedule A—Business Plan

  	
   

  



 










*                 CONFIDENTIAL TREATMENT REQUESTED UNDER 17
C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


iii





















 


JOINT VENTURE AGREEMENT


 


OF


 


TCZ GMBH


 


JOINT VENTURE
AGREEMENT of TCZ GmbH, a limited liability company organized under the laws of
Switzerland (the “Company”),
dated as of July 15, 2005 among, initially, Carl Zeiss SMT AG, a stock
corporation organized under the laws of Germany (“Zeiss SMT”), Carl
Zeiss Laser Optics Beteiligungsgesellschaft mbH, a limited liability company
organized under the laws of Germany and an indirect wholly-owned subsidiary of
SMT (“Zeiss LOB”), and Cymer, Inc., a
Nevada corporation (“Cymer”) and, following
its registration in the commercial register, the Company.  Capitalized terms used herein but not defined
when used have the meanings assigned to such terms in Article 1.


 


RECITALS


 


1.             Cymer and Zeiss LOB intend to form
the Company as a joint venture to develop, integrate, market, sell and support
tools employing a beam generated by an excimer laser to induce crystallization
for Low Temperature Poly-Silicon (LTPS) processing (the “Products”)
for the manufacture of flat panel displays, including LCDs, LCD SOGs and OLEDs,
to engage in related application development and to search for other business
opportunities for process tools for the manufacture of flat panel displays.


 


2.             It is intended that the Company and
the Members or their Affiliates will enter into an Intellectual Property
Agreement substantially in the form attached hereto as Exhibit A (the “Intellectual Property Agreement”) and each of the other
Joint Venture Documents (as defined below).


 


3.             Cymer and Zeiss LOB wish to enter
into this Joint Venture Agreement to govern the affairs of the Company and set
forth their respective rights, obligations and understandings with respect to
the Company.


 


4.             Zeiss SMT wishes to [. . . *** . . .] of Zeiss LOB under
this Agreement.


 


NOW,
THEREFORE, the parties hereto agree as follows:


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 





















 


ARTICLE 1

DEFINITIONS


 


Section 1.01.  Definitions.  (a) As used herein, the
following terms have the following meanings:


 


“Administrative Services Agreements” means (i) the
Administrative Services Agreement to be entered into between Cymer and the
Company, in a form to be mutually agreed by Cymer and Zeiss LOB not later than
the Closing, as amended, supplemented or otherwise modified from time to time,
and (ii) the Administrative Services Agreement to be entered into between
Zeiss LOB or its Affiliate and the Company, in a form to be mutually agreed by
Cymer and Zeiss LOB not later than the Closing, as amended, supplemented or
otherwise modified from time to time.


 


“Affiliate” means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by or under common
control with such Person.  As used
herein, “control” (and the derivative terms “controlling” and “controlled”)
means the direct or indirect ownership of more than fifty percent (50%) of the
equity securities or other ownership interests and voting rights of, and the
possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of a person, whether through the ownership of
voting securities, by contract or otherwise. 
No party or its Affiliates shall by reason of this Agreement be deemed
to be an affiliate of the other party or its Affiliates.  The term “affiliated”
shall have a corresponding meaning. 
Notwithstanding the foregoing definition, when used with respect to
Zeiss SMT or Zeiss LOB, the term “Affiliate”
shall exclusively mean (a) Zeiss SMT and any Person under the control of
Zeiss SMT and (b) IMT and any Person under the control of IMT.  Notwithstanding the foregoing definition, for
purposes of this Agreement, the Company and its subsidiaries shall not be
considered an Affiliate of either Member.


 


“Agreement” means this Joint Venture Agreement, as amended,
supplemented or otherwise modified from time to time.


 


“Area of Responsibility” means each area of the R&D
Effort in which one Member or the Company has primary responsibility for
directing and carrying out research, as specified from time to time in the then
current Business Plan.


 


“Budget Year” means the period commencing on the date of this
Agreement and ending on December 31, 2005 and each successive one-year
period thereafter.


 


“Capital Call Notice” means a written request delivered by
the Company to each Member from time to time requesting that each Member
provide funds to the Company.  Such
notice shall specify in reasonable detail (i) the amount being


 


2





















 


requested, (ii) the
Company’s anticipated use of funds and the timing of such use, and (iii) wire
transfer instructions.


 


“Confidentiality Agreement” means the Confidentiality
Agreement to be entered into among Cymer, Zeiss SMT, IMT and the Company at the
Closing, substantially in the form attached hereto as Exhibit D, as
amended, supplemented or otherwise modified from time to time.  It is intended that the Company will become a
party to the Confidentiality Agreement following its formation.


 


“Contribution Agreement” means the Contribution Agreement to
be entered into between Cymer and the Company at the Closing substantially in
the form attached hereto as Exhibit B, as amended, supplemented or
otherwise modified from time to time.


 


“Cymer Supply Agreement” means the Supply Agreement to be entered
into between Cymer and the Company at the Closing, substantially in the form
attached hereto as Exhibit C, as amended, supplemented or otherwise
modified from time to time.


 


“Deliverable” means work product or deliverables of any type
to be developed or delivered by a Member during the course of a Project.


 


“Facilities Agreements” means (i) the Facilities License
Agreement to be entered into between the Company and Cymer relating to use by
the Company of certain facilities in the United States, in a form to be
mutually agreed by Cymer and Zeiss LOB not later than the Closing, as amended,
supplemented or otherwise modified from time to time, and (ii) the
Facilities License Agreement to be entered into between the Company or its
Affiliate and an Affiliate of Cymer relating to use by the Company or its
Affiliates of certain facilities in Korea and Taiwan, in a form to be mutually
agreed by Cymer and Zeiss LOB not later than the Closing, as amended,
supplemented or otherwise modified from time to time.


 


“GAAP” means United States generally accepted accounting
principles, consistently applied.


 


“IMT” means Carl Zeiss Industrielle
Messtechnik GmbH.


 


“IMT IP Side Letter” means the side letter to the
Intellectual Property Agreement executed by IMT by or at the Closing,
substantially in the form attached hereto as Exhibit I.


 


 “Intellectual Property”
means any or all of the following: (i) works of authorship, including,
without limitation, computer programs, algorithms, routines, source code and
executable code, whether embodied in software, firmware or otherwise,
documentation, designs, files, records and data, (ii) inventions (whether
or not patentable), improvements, and technology, (iii) proprietary and
confidential information, including, without limitation, technical


 


3





















 


data and
customer and supplier lists, trade secrets, know-how and techniques, (iv) databases,
data compilations and collections and technical data, (v) logos, trade
names, trade dress, trademarks and service marks, (vi) domain names, web
addresses and sites, (vii) tools, methods, processes, devices, prototypes,
schematics and test methodologies, and (viii) any and all instantiations
of the foregoing in any form and embodied in any media.


 


“Intellectual Property Rights” means any or all of the
following and all rights in, arising out of, or associated therewith, whether
arising from statute or common law: (i) all United States and foreign
patents and utility models and applications therefor and all reissues,
divisions, re-examinations, renewals, extensions, provisionals, continuations
and continuations-in-part thereof, and equivalent or similar rights anywhere in
the world in inventions and discoveries, including, without limitation,
invention disclosures, (ii) all trade secrets and other rights in know-how
and confidential or proprietary information, (iii) all copyrights,
copyright registrations and applications therefor and all other rights
corresponding thereto throughout the world, (iv) all industrial designs
and any registrations and applications therefor throughout the world, (v) all
rights in World Wide Web addresses and domain names and applications and
registrations therefor, all trade names, logos, common law trademarks and
service marks, trademark and service mark registrations and applications
therefor and all goodwill associated therewith throughout the world, and (vi) any
similar, corresponding or equivalent rights to any of the foregoing throughout
the world.


 


“ Interest” means, with respect to any Member, the aggregate
shares (Gesellschaftsanteile) in the Company
held by such Member.


 


“Joint Venture Documents” means, collectively, this
Agreement, the Contribution Agreement, the Intellectual Property Agreement, the
Trademark License Agreement, the Supply Agreements, the R&D Services
Agreements, the Administrative Services Agreements, the Facilities Agreements
and the Confidentiality Agreement.


 


“Member” means Cymer, Zeiss LOB or any other Person who, at
such time, is admitted to the Company as a Member in accordance with the terms
of this Agreement, each in its capacity as a shareholder of the Company.


 


“Member Parent” means, with respect to any Member, (i) in the case of Cymer or any
Member that is an Affiliate of Cymer, Cymer, Inc., (ii) in the case
of Zeiss LOB or any Member that is an Affiliate of Zeiss SMT, Carl Zeiss SMT AG
and (iii) in the case of any Member that is not an Affiliate of either
Cymer or Zeiss SMT, the ultimate parent company of such Member.


 


“Net Income” shall mean, for any period, the Company’s net
income as determined under GAAP.


 


4





















 


“Percentage Interest” means, with respect to any Member, such
Member’s Percentage Interest as set forth in Section 4.01.


 


“Person” means an individual, corporation, partnership,
association, trust, limited liability company or any other entity or
organization, including a government or political subdivision or an agency or
instrumentality thereof.


 


“R&D Effort” means research and development undertaken by
either Member reasonably related to the Business.


 


“R&D Services Agreements” means (i) any R&D
Services Agreement to be entered into between Cymer and the Company (or their
respective Affiliates), substantially in a form to be mutually agreed by Cymer
and Zeiss LOB not later than the Closing, as amended, supplemented, or
otherwise modified from time to time, and (ii) any R&D Services
Agreement to be entered into between Zeiss LOB and the Company (or their
respective Affiliates), substantially in a form to be mutually agreed by Cymer
and Zeiss LOB not later than the Closing, as amended, supplemented, or
otherwise modified from time to time.


 


“Supplier” means, with respect to any Supply Agreement, the
Person identified as the Supplier in such Supply Agreement, including any
transferee of all or substantially all of the assets of a Supplier that has
assumed such Supply Agreement in accordance therewith.


 


“Supply Agreements” means the Cymer Supply Agreement and the
Zeiss Supply Agreement.


 


“Trademark License Agreement” means the License Agreement to
be entered into between the Company and Carl Zeiss AG, substantially in a form
to be mutually agreed by Cymer and Zeiss LOB at the Closing, as amended,
supplemented or otherwise modified from time to time.


 


“THL” means the Swiss Federal Tax Harmonized Law, as amended
from time to time.


 


“Transfer” means any direct or indirect sale, assignment,
disposition, exchange, mortgage, pledge or grant of a security interest in,
foreclosure or any other transfer of any portion of, or economic or voting
interest in, an Interest, but shall not include any sale, assignment,
disposition, exchange, mortgage, pledge or grant of a security interest in,
foreclosure or any other transfer of any capital stock of a Member Parent.  A “Transfer” shall also include any sale,
assignment or other transfer by a Member Parent of any direct or indirect
interest in the Member that is its Affiliate. 
When used as a verb, the term “Transfer” refers to entering into any
transaction or series of transactions that results in a “Transfer.”


 


“Work Plan” means a mutually agreed written schedule setting
forth a description of a Project to be performed under this Agreement.


 


5





















 


“Zeiss Supply Agreement” means the Supply Agreement to be
entered into between Zeiss LOB (or its Affiliate) and the Company at the
Closing, substantially in the form attached hereto as Exhibit C, as
amended, supplemented or otherwise modified from time to time.


 


(b)           Each of the following
additional terms is defined in the Section set forth opposite such term:


 


	
  Term

  	
   

  	
  Section

  
	
  Annual Maximum Required Funding Contribution

  	
   

  	
  4.02(a)

  
	
  Business

  	
   

  	
  3.02

  
	
  Business Plan

  	
   

  	
  6.03(a)

  
	
  Chief Executive Officer

  	
   

  	
  6.01(a)

  
	
  Committee of Representatives

  	
   

  	
  6.01(a)

  
	
  Closing

  	
   

  	
  2.01

  
	
  Company

  	
   

  	
  Preamble

  
	
  Fiscal Year

  	
   

  	
  7.01

  
	
  Gate Reviews

  	
   

  	
  6.03(a)

  
	
  Intellectual Property Agreement

  	
   

  	
  Recital 3

  
	
  Liquidating Event

  	
   

  	
  11.05

  
	
  Liquidator

  	
   

  	
  11.06

  
	
  Major Customer

  	
   

  	
  11.04(a)

  
	
  Members Meeting

  	
   

  	
  6.01(a)

  
	
  Non-Affiliate Transfer

  	
   

  	
  10.02(a)

  
	
  Non-Compete Period

  	
   

  	
  11.02(b)

  
	
  Non-Transferring Member

  	
   

  	
  10.02(a)

  
	
  Non-Triggering Party

  	
   

  	
  11.02(a)

  
	
  Other FPD Business Opportunities

  	
   

  	
  3.02

  
	
  Permitted Transferee

  	
   

  	
  10.01(a)

  
	
  Product

  	
   

  	
  Recital 1

  
	
  Project

  	
   

  	
  6.03(a)

  
	
  Proposed Transferee

  	
   

  	
  10.02(a)

  
	
  Representative

  	
   

  	
  6.01(a)

  
	
  Required Funding Contributions

  	
   

  	
  4.02(a)

  
	
  Swiss Corporate Documents

  	
   

  	
  12.13

  
	
  Swiss Trustee

  	
   

  	
  6.08

  
	
  Swiss Trust Agreement

  	
   

  	
  6.08

  
	
  Transferring Member

  	
   

  	
  10.02(a)

  
	
  Triggering Event

  	
   

  	
  11.02(a)

  
	
  Triggering Party

  	
   

  	
  11.02(a)

  
	
  Triggering Separation

  	
   

  	
  11.04(b)

  



 


6





















 


ARTICLE 2

FORMATION OF THE COMPANY


 


Section 2.01.  Formation of the Company.  (a) As soon as reasonably practicable
following the execution of this Agreement, Cymer and Zeiss LOB will contribute
the initial capitalization of the Company of CHF 20,000.00 as
set forth in Section 4.02(a) and take such other steps to form the
Company as a Swiss limited liability company (Gesellschaft
mit beschränkter Haftung) in accordance with the Swiss corporate
legal implementation timetable attached as Exhibit F.  At the closing, which shall take place on a
date to be mutually agreed between Cymer and Zeiss LOB consistent, to the
extent reasonably practicable, with said timetable (the “Closing”),
the following cash and property contributions (the “Capital
Contributions”) will be made:


 


(i)    Each Member shall make the required funding
contributions set forth in Section 4.02(a)(i).


 


(ii)   Cymer shall contribute, assign, transfer,
convey and deliver to the Company all of Cymer’s right, title and interest in
and to the Contributed Intellectual Property (as defined in the Contribution
Agreement) on the terms and subject to the conditions set forth therein.


 


(b)           As soon as
reasonably practicable after Closing, the Company shall use $[. . . *** . . .] of the required
funding contribution to finance the purchase by the Company or its subsidiary
of a demonstration Product, of which $[.
.. . *** . . .] will be payable to Cymer and $[. . . *** . . .] will be payable to Zeiss LOB.


 


(c)           The Company shall
have Articles of Association (Statuten)
substantially in the form attached hereto as Exhibit G, subject to such
modifications as may be required by the commercial register of the Canton of
Zug as part of the registration process.


 


(d)           Cymer’s obligations
at Closing hereunder shall be subject to the condition that the IMT IP Side
Letter shall have been executed and delivered by IMT at or prior to the
Closing.


 


Section 2.02.  Execution of Agreements by
Company.  At the Closing,
promptly following the Company’s registration in the commercial register of the
Canton of Zug, the Members (i) will cause the Company to become a party to
this Agreement by executing and delivering counterparts hereof and (ii) shall
execute and deliver, in the case of Cymer to the extent it is a party thereto,
and shall cause the Company to execute and deliver, (A) counterparts of
the Intellectual Property


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


7





















 


Agreement and Trademark License Agreement, (B) counterparts of
each Supply Agreement and (C) each other Joint Venture Document that the
Members shall mutually agree shall be executed at the Closing.


 


Section 2.03.  Execution of Agreements by
Zeiss SMT.  At the Closing,
promptly following the Company’s registration in the commercial register, Zeiss
SMT (i) shall execute and deliver counterparts of (A) the
Intellectual Property Agreement and (B) the Confidentiality Agreement and
the IMT IP Side Letter, each as executed by IMT, (ii) shall cause Carl
Zeiss Laser Optics GmbH to execute and deliver counterparts of the Zeiss Supply
Agreement and (iii) shall cause any other Joint Venture Document which the
parties have agreed shall be executed and delivered at Closing to be executed
and delivered by any of its Affiliates that is a party thereto.


 


Section 2.04.  Representations And
Warranties.  (a) Cymer
hereby represents and warrants that as of the date hereof (i) it is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Nevada, (ii) it has the requisite power and authority
to execute and deliver this Agreement and the other Joint Venture Documents and
to fully perform its obligations hereunder and thereunder, (iii) the
execution, delivery and performance of this Agreement and the other Joint
Venture Documents have been duly authorized on the part of Cymer, (iv) it
is not party to or affected by contractual or other legal obligations that
would in any material respect interfere with its full performance of this
Agreement or the other Joint Venture Documents, (v) Cymer owns the
Contributed Intellectual Property (as defined in the Contribution Agreement)
free and clear of any encumbrances (including any license other than any
Existing Cross-Licenses), to the Company, as set forth in the Contribution
Agreement, and (vi) the individuals executing this Agreement on behalf of
Cymer have the authority to do so.


 


(b)           Zeiss LOB hereby
represents and warrants that (i) it is a limited liability company duly
organized, validly existing and in good standing under the laws of Germany, (ii) it
has the requisite power and authority to execute and deliver this Agreement and
the other Joint Venture Documents and to fully perform its obligations
hereunder and thereunder, (iii) the execution, delivery and performance of
this Agreement and the other Joint Venture Documents have been duly authorized
on the part of Zeiss LOB, (iv) it is not party to or affected by
contractual or other legal obligations that would in any material respect
interfere with its full performance of this Agreement or the other Joint
Venture Documents, and (v) the individuals executing this Agreement on
behalf of Zeiss LOB have the authority to do so.


 


(c)           Zeiss SMT hereby
represents and warrants that (i) it is a stock corporation duly organized,
validly existing and in good standing under the laws of Germany, (ii) it
has the requisite power and authority to execute and deliver this Agreement and
the other Joint Venture Documents to which it is a party and


 


8





















 


to fully
perform its obligations hereunder and thereunder, (iii) the execution,
delivery and performance of this Agreement and the other Joint Venture
Documents to which it is a party have been duly authorized on the part of Zeiss
SMT, (iv) it is not party to or affected by contractual or other legal
obligations that would in any material respect interfere with its full
performance of this Agreement or the other Joint Venture Documents to which it
is a party, (v) the individuals executing this Agreement on behalf of
Zeiss SMT have the authority to do so, and (vi) all right, title and
interest in and to Foreground Technology (as defined in the Intellectual
Property Agreement) conceived or reduced to practice by IMT or any Person under
the control of IMT will be owned by SMT and that, upon execution and delivery
of the IMT IP Side Letter by IMT, SMT will obtain all rights from IMT to fully
perform its obligations under the Intellectual Property Agreement.


 


(d)           Notwithstanding any
other provision contained in this Agreement, the Company shall be authorized to
execute, deliver and perform this Agreement and the other Joint Venture
Documents to which it is a party and all documents, agreements, certificates,
or statements contemplated thereby or related thereto, each in the form
attached hereto, or in the case of the Administrative Services Agreements, the
Facilities License Agreements and the R&D Services Agreements, in the form
mutually agreed by Cymer and Zeiss LOB at or before Closing, exclusive of any
future amendments, without any further act, vote or approval of any Member or
any other Person.


 


ARTICLE 3

PURPOSES OF THE COMPANY


 


Section 3.01.  Name. The name of
the Company shall be “TCZ GmbH”.  The
business of the Company shall be conducted under such name or names as the
Members Meeting may from time to time determine in accordance with the
provisions hereof based upon decisions taken by the Committee of Representatives.


 


Section 3.02.  Purpose.  The purpose of the Company is to
develop, market, sell, integrate and service the Products and to engage in
related application development based on the Products (the “Business”), and to search for other business opportunities
for process tools for the manufacture of flat panel displays, and to take
actions reasonably related thereto, in each case as set forth in greater detail
in the Business Plan as in effect from time to time. If the Company identifies
business opportunities for process tools for the manufacture of flat panel
displays other than the Products and applications based on the Products (“Other FPD Business Opportunities”), the Company shall bring
such Other FPD Business Opportunities to the attention of the Members, and the
Members will discuss in good faith whether or not to expand the scope of the
Business of the Company to pursue such Other FPD Business Opportunities.  For the avoidance of the doubt, the “Business”
shall not include the development, marketing, selling,


 


9





















 


integration or
services of tools other than the Products, unless the Members so agree and
amend this Agreement to expand the definition of the Business accordingly.


 


Section 3.03.  Place of Business of the
Company.  The principal place
of business of the Company shall be located at such address as may be
designated by the Members Meeting from time to time based upon decisions taken
by the Committee of Representatives.


 


Section 3.04.  Registered Office; Registered
Agent.  The address of the
registered office of the Company in Switzerland shall be as determined by the
Members and set forth in the Commercial Register.


 


Section 3.05.  Duration of the Company.  The Company shall continue until
its termination in accordance with the provisions of Article 11.


 


Section 3.06.  Title to Company
Property.  All property of the
Company, whether real or personal, tangible or intangible, shall be deemed to
be owned by the Company as an entity, and no Member, in its capacity as such,
shall have any direct ownership interest in such property, except upon
termination of the Company as set forth in Article 11.


 


Section 3.07.  Limited Liability.  Except as required by mandatory
Swiss law, the debts, obligations and liabilities of the Company, whether
arising in contract, tort or otherwise, shall be solely the debts, obligations
and liabilities of the Company, and no Member shall be obligated personally for
any such debt, obligation or liability of the Company solely by reason of being
a Member.


 


ARTICLE 4

PERCENTAGE INTERESTS; CAPITAL CONTRIBUTIONS


 


Section 4.01.  Percentage Interests; Capital
Contributions.  (a) The
names and Percentage Interests of the Members shall be as follows:


 


	
  Name

  	
   

  	
  Percentage Interest

  	
   

  
	
  Cymer

  	
   

  	
  60

  	
  %

  
	
  Zeiss LOB

  	
   

  	
  40

  	
  %

  



 


(b)           The Percentage
Interests shall not be subject to adjustment unless agreed by the Members,
except as otherwise provided in Sections 6.03(c)(iii) or 11.03.


 


10





















 


(c)           Other than the
Members’ initial capital contributions, their Required Funding Contributions,
and Zeiss LOB’s obligations pursuant to Section 12.03 below, no additional
funding or capital contribution of the Members shall be required, except as the
Members may unanimously agree.


 


Section 4.02.  Funding Commitments.  (a) As soon as reasonably
practicable after execution of this Agreement, each of the Members shall
contribute their proportionate share of the Company’s nominal capital of CHF
20,000.00 based on their Percentage Interest for purposes of the formation of
the Company in accordance with Exhibit F. 
The Members from time to time shall be obligated to provide funds to the
Company, as provided in this Section 4.02, up to the amount specified in Section 4.02(a)(iii),
which each such Member shall make by way of a contribution of capital, in all
cases, by wire transfer of immediately available funds.


 


(i)    At the Closing, Cymer shall contribute
$14,170,000.00 in cash and Zeiss LOB shall contribute $[. . . *** . . .] in cash in respect of their required funding
contributions for 2005, and Cymer shall contribute any property to be
contributed pursuant to the Contribution Agreement.


 


(ii)   The amount and timing of subsequent required
funding contributions under this Section 4.02 (“Required
Funding Contributions”) shall be determined by the Chief Executive
Officer consistent with the then current Business Plan as in effect from time
to time, subject to the provisions of Section 4.02(a)(iii).  Each Member shall make each such funding
contribution within ten business days of receipt of a Capital Call Notice from
the Company.


 


(iii)  No Member shall be required to contribute to
the Company an amount for any Budget Year that exceeds its proportionate share
(determined on the basis of its Percentage Interest) of the annual maximum
required funding contribution amount (the “Annual Maximum Required
Funding Contribution”) for such Budget Year (which shall cover the
Company’s expected funding requirements for the period ending 15 months after
the beginning of such Budget Year), set forth for such Budget Year in the then
current Business Plan as may be in effect from time to time, or, absent an
updated Business Plan containing an Annual Maximum Required Funding
Contribution for such Budget Year, the amount determined as provided in Section 6.03(c).


 


(b)           If a Member fails to
contribute its required portion of any Required Funding Contribution as and
when required by this Agreement, the Company shall then notify the Members in
writing of such default, specifying the default in reasonable detail, and if
the defaulting Member shall not have cured such default within ten business
days after receipt of such default notice, such failure shall be deemed a
material breach of this Agreement and in addition to, and without


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1) 


 


11





















 


prejudice to,
any and all other remedies, the non-defaulting Member may treat such default as
a “Triggering Event” pursuant to Section 11.02(a), except that the
non-defaulting Member shall be treated as the Non-Triggering Party and the
defaulting Member shall be treated as the Triggering Party thereunder.  The foregoing shall be exercisable by written
notice from non-defaulting Member to the defaulting Member, given within 30
days after receipt of the default notice.


 


Section 4.03.  Other Matters.  (a) Except as otherwise
provided in this Agreement, no Member shall demand or receive a return of its
capital contributions or resign from the Company without the consent of the
other Member.  Under circumstances
requiring a return of any capital contributions, no Member shall have the right
to receive property other than cash, except as may be specifically provided
herein.


 


(b)           No Member shall
receive any interest, salary or drawing with respect to its capital
contributions or for services rendered on behalf of the Company or otherwise in
its capacity as a Member, except as otherwise contemplated by this Agreement.


 


ARTICLE 5

DISTRIBUTIONS


 


Section 5.01.  Distributions.  After the date of Closing, when,
if and as determined by the Members Meeting or required by a Member pursuant to
Section 5.02, the Company shall make available the Net Income of the Company
for distribution to the Members (or to any Affiliate of a Member designated by
such Member) in proportion to their Percentage Interests, and each Member
agrees to vote its shares in favor of such a distribution; provided
that Intellectual Property Rights owned or licensed by the Company shall be
distributed only in accordance with the Intellectual Property Agreement or
otherwise upon termination and dissolution of the Company in accordance with Article 11.  With respect to the amount to which each Member
is entitled pursuant to the preceding sentence, such Member may elect, at its
sole option, to (i) receive such amount in cash or, if so determined by
the Members Meeting, property or (ii) treat such amount as part of such
Member’s funding contribution for purposes of satisfying its Required Funding
Contribution.


 


Section 5.02.  Member’s Right to Require
Distribution.  Either Member
shall have the right to require the Members Meeting to make a distribution of
the Net Income of the Company to the Members under Section 5.01, provided that the Company will have sufficient available
funds on hand after the distribution to meet 110% of its reasonably foreseeable
working capital requirements during the 18 months following the date of such
distribution based on the more conservative of the (a) the financial
projections in the then current Business Plan or (b) the most recent
financial projections approved by the Members Meeting.


 


12





















 


Section 5.03.  Amounts Withheld.  The Company is authorized to
withhold from distributions to the Members and to pay over to any federal,
cantonal, communal or foreign government any amounts which it reasonably
determines may be required to be so withheld pursuant to the THL or any provisions
of any other federal, cantonal, communal or foreign law.  All amounts withheld pursuant to the THL or
any provision of any federal, cantonal, communal or foreign tax law with
respect to any distribution to any Member shall be treated as amounts distributed
to such Member pursuant to this Article for all purposes under this
Agreement.


 


Section 5.04.  Dissolution.  Upon dissolution and winding up of
the Company, the Company shall make distributions in accordance with Article 11.


 


Section 5.05.  No Distributions in Violation
of Law.  Notwithstanding any
other provision contained in this Agreement, the Company shall not be required
to make a distribution to any Member to the extent that such distribution would
violate mandatory Swiss law.


 


ARTICLE 6

CORPORATE GOVERNANCE


 


Section 6.01.  Members Meeting and Committee
of Representatives.  (a) Except
as otherwise provided in this Agreement, the business and affairs of the
Company shall be managed by the Chief Executive Officer (the “Chief Executive Officer”) under the supervision of the
meeting of all the Members of the Company (the “Members
Meeting”), as specified in this Agreement.  The actions set forth in Section 6.01(c) below
may not be taken by the Company without the approval of a group of individuals
acting as representatives of the Members (the “Committee of
Representatives”).  On the
basis of such approval, any action so approved shall be presented by the
Committee of Representatives to the Members Meeting.


 


(b)           Except as otherwise
provided in Section 10.02(b), Section 11.03 and Section 11.04,
the Committee of Representatives shall consist of four individuals (each a “Representative”).  Two
of such Representatives shall be designated by Cymer and two such
Representatives shall be designated by Zeiss LOB.  Each Representative (i) shall hold
office until a successor shall have been duly designated or if earlier, such
Representative’s death, resignation or removal and (ii) except as
otherwise provided in Section 11.03, may be removed only by the Member
having designated such Representative.


 


(c)           In addition to the
actions requiring consent of the Members pursuant to Section 6.04 below,
the following actions may not be taken by the Company or by the Chief Executive
Officer acting on behalf of the Company without


 


13





















 


obtaining the
approval of the Members Meeting acting on the recommendation of the Committee
of Representatives as set forth herein:


 


(i)    adoption or amendment of a Business Plan and
the product development process as described in Section 6.03(a)(iii);


 


(ii)   entering into or making any loans or advances
to, guarantees for the benefit of, or investments by the Company, in excess of
$100,000, other than trade credit in the ordinary course of business and investments
in cash or cash equivalents in accordance with an investment policy adopted by
the Members Meeting;


 


(iii)  entering into any agreement or commitment (or
series of related agreements or commitments) outside the ordinary course of
business involving an aggregate value of more than $100,000 per year;


 


(iv)  entering into any transaction with any Member
or Affiliate of any Member other than the transactions contemplated hereby and
by the other Joint Venture Documents for which a final form has been agreed;


 


(v)   any acquisition or disposition (in a single
transaction or a series of related transactions) of any assets, business or
operations outside the ordinary course of business in an aggregate value of
more than $100,000;


 


(vi)  subject to the terms of the Intellectual
Property Agreement, licensing the Company’s Intellectual Property outside the
ordinary course of business or commencing or settling any litigation or claim
involving the Company’s Intellectual Property; or


 


(vii) commencing or settling any material litigation
or claim.


 


Section 6.02.  Officers.  (a) The Company will be
managed by the Chief Executive Officer, who will act as “Geschäftsführer”
under applicable Swiss law, in accordance with the Company’s then current
Business Plan as in effect from time to time. 
Without limiting the generality of the foregoing, the Chief Executive
Officer will be responsible for managing the following activities of the
Company, in accordance with the Company’s then current Business Plan as in
effect from time to time: (i) sales and marketing, (ii) application
development, (iii) supply management, (iv) service and support to the
Company’s customers, (v) systems integration, (vi) business
development and (vii) accounting, finance, and general and administrative
functions.  The Chief Executive Officer
may delegate any of such authority to the other officers of the Company.  The other officers of the Company may include
one or more vice presidents or other officers as the Chief Executive Officer
may in his or her discretion determine. 
One person may hold the offices and perform the duties of any two or
more of said offices.


 


14





















 


All of the officers of the Company shall report to the Chief Executive
Officer of the Company.


 


(b)           The Member with the
greater Percentage Interest shall have the right to appoint the Chief Executive
Officer of the Company, provided that
such appointment shall be subject to the approval of the other Member, which
approval shall not be unreasonably withheld or delayed.  The Chief Executive Officer may be removed at
any time by the Members Meeting.


 


(c)           The officers of the
Company (other than the Chief Executive Officer) shall be appointed by the
Chief Executive Officer to hold office for such term as the Chief Executive
Officer may determine; provided that such appointment shall be subject to the
approval of the Members Meeting, which approval shall not be unreasonably
withheld or delayed.  Each such officer
shall hold office until his or her successor is appointed, or until the earlier
of his or her death, resignation or removal, and may be removed with or without
cause at any time by the Chief Executive Officer.  The remuneration of each such officer shall
be approved by the Members Meeting.  Each
Member may suggest one or more candidates for such other officers, which
suggestions the Chief Executive Officer shall consider in good faith, and, if
the Chief Executive Officer rejects such suggestions, the Chief Executive
Officer shall, if so requested, explain his or her reasons for the
rejection.  Each Member shall, if so
requested by the Chief Executive Officer, reasonably assist the Chief Executive
Officer in locating candidates for positions with the Company within the ranks
of the Member’s employees and in recruiting such candidates to join the
Company.


 


(d)           Unless mutually
agreed by the Members, commencing no later than ninety (90) days after the
Closing, each officer of the Company (including the Chief Executive Officer),
and each other employee of the Company that has been transferred to the Company
from either Cymer or Zeiss SMT or their respective Affiliates, shall be a
full-time employee of the Company and devote 100% of such person’s full
professional and business-related time to the Company.  Unless mutually agreed by the Members, no
officer of the Company shall be permitted to participate in any compensation
program of either Member, provided that
nothing in this provision shall prohibit any officer from retaining and
exercising any stock options granted to such officer prior to becoming an
officer of the Company or participating in any health and welfare benefits
plans of a Member provided to the officer pursuant to an Administrative
Services Agreement.


 


Section 6.03.  Business Plan.  (a) The Company will be
subject to and managed in accordance with a Business Plan (the “Business Plan”) which will cover a rolling period of [. . . *** . . .] Budget Years and
will be revised annually.  The Company’s
initial Business Plan for the partial year [. . . *** . . .] and years [. . . *** . . .] is identified in Schedule A hereto.  Such initial Business Plan will remain in
effect until modified or superseded by the Members Meeting in accordance with
the terms hereof.  The Business Plan will
include, without limitation:


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


15





















 


(i)    the long-term objectives of the Company in
light of its then current strategic, competitive and technology position, the
Product roadmap and the broad Areas of Responsibility of each Member;


 


(ii)   a schedule or timetable with a
description of all milestones (including technical milestones, business
milestones and financial milestones) and/or Deliverable due dates;


 


(iii)  a schedule of “Gate Reviews”
to be held by the Members Meeting in accordance with a product development
process, which shall be prepared by the Chief Executive Officer of the Company
and approved by the Members Meeting, during which Gate Reviews the Members
Meeting will determine whether milestones and/or Deliverable due dates have
been met or achieved;


 


(iv)  a Work Plan for the Members, the Suppliers and
the Company with respect to each distinct area of inquiry (each such area, a “Project”) containing with respect to such Project (1) the
identity of the project managers for the Project and/or the manner in which
they will be selected; (2) a description of any performance, status and
operational reports to be generated during the Project; (3) quality
criteria for assessing the performance of the Suppliers and the Company, as the
case may be, during such Project including, but not limited to, performance
criteria for milestones, classifications of the severity of errors or failures,
and response processes for the correction of any such errors or failures; and (4) any
other terms and conditions agreed upon by the Members with respect to a
Project;


 


(v)   a Work Plan for the Company with respect to
its Area of Responsibility with respect to each Project;


 


(vi)  financial projections (including projected
balance sheet, income statement and cash flow, as well as projected Annual
Maximum Required Funding Contributions) for each of the [. . . *** . . .] Budget Years covered by the Business Plan;


 


(vii) the Annual Maximum Required Funding
Contribution for the next Budget Year, which shall cover the Company’s expected
funding requirements for the period ending [. . . *** . . .] months after the beginning of such Budget
Year); and


 


(viii)                performance metrics for the
Company for the next Budget Year for use in assessing the performance of the
Chief Executive Officer.


 


(b)           With respect to each
Budget Year after [. . . *** . . .] the
Chief Executive Officer will develop and present to the Members no later than [. . . *** . . .] of


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


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each year a
proposed revised and updated Business Plan that has been rolled forward for
another year.  For the avoidance of
doubt, unless a new Business Plan is approved by the Members Meeting, the
Company will be subject to and managed in accordance with the then current
Business Plan as in effect from time to time.


 


(c)           During any Budget
Year for which the Members Meeting has not approved a revised Business Plan by [. . . *** . . .], the Annual Maximum
Required Funding Contribution for such Budget Year shall be established as
follows:


 


(i)    Each Member shall not later than [. . . *** . . .] notify the Chief
Executive Officer and the other Member in writing of its proposal for the
Annual Maximum Required Funding Contribution for such Budget Year; provided that neither Member’s proposal may be [. . . *** . . .] than [. . . *** . . .]% or [. . . *** . . .] than [. . . *** . . .]% of the [. . . *** . . .] of (A) the [. . . *** . . .] for such [. . . *** . . .] as specified in the
[. . . *** . . .] by the [. . . *** . . .], or (B) the [. . . *** . . .] as specified in the
[. . . *** . . .] proposed by
the [. . . *** . . .].


 


(ii)   The issue shall be immediately escalated for
expedited resolution by the Chairman of the Board (or equivalent officer) of
each Member as provided in Section 12.10(a).


 


(iii)  If the matter is not resolved by [. . . *** . . .] of any year, then
the Member proposing the [. . . *** .
.. .] Annual Maximum Required Funding Contribution for such Budget Year
shall have the option, at its election, by notice given no later than [. . . *** . . .] of the following
year either (A) to establish the [.
.. . *** . . .] amount as the Annual Maximum Required Funding
Contribution for such Budget Year and to agree to pay, as an additional capital
contribution to the Company, the difference between the amounts last proposed
by each Member, and upon such payment the paying Member’s Percentage Interest
shall be increased to a percentage equal to the [. . . *** . . .] of (x) the [. . . *** . . .] of the [.
.. . *** . . .] by the [. . .
*** . . .] since [. . . *** . .
..] the Company (including pursuant to [. . . *** . . .]), [.
.. . *** . . .] by (y) the [. .
.. *** . . .] of the [. . . ***
.. . .] by [. . . *** . . .] (including
pursuant to [. . . *** . . .])
since [. . . *** . . .] the
Company, and the [. . . *** . . .] Percentage
Interest shall be [. . . *** . . .] accordingly),
or (B) to establish the Annual Maximum Required Funding Contribution for
such Budget Year as an amount equal to [.
.. . *** . . .] of the amounts proposed by each Member.


 


Section 6.04.  Company Actions Requiring
Consent of Members.  In
addition to the actions requiring consent of the Members acting on the recommendation
of the Committee of Representatives pursuant to Section 6.01(c),


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


17





















 


the following actions may not be taken by the Company or by the Chief
Executive Officer unless approved by all Members pursuant to a decision or
resolution of the Members Meeting:


 


(a)           any amendment of this Agreement, any
other Joint Venture Document or the Company’s Articles of Association;


 


(b)           issuance of any new shares or
admission of any new Members (and each Member agrees to grant such consent for
admission of a Permitted Transferee);


 


(c)           redemption or repurchase of any
shares;


 


(d)           authorizing or committing the Company
to a change in the scope of the Business;


 


(e)           taking any actions in respect of the
dissolution or liquidation or winding-up of the Company (except as permitted
pursuant to Section 11.05(c)) or the filing or acquiescing to the filing
of a petition in respect of the Company under bankruptcy or insolvency laws, or
the making of any assignment for the benefit of creditors;


 


(f)            any merger, consolidation,
reorganization (including conversion) or other business combination involving
the Company or any of its Affiliates (other than of a wholly owned Affiliate
with or into another wholly owned Affiliate) or any acquisition of the Company
or any of its Affiliates by another entity by means of any transaction or
series of related transactions or the sale of all or substantially all of the
assets of the Company;


 


(g)           appointment and removal of the Chief
Executive Officer and of the Swiss Trustees;


 


(h)           approval of the Company’s annual
financial statements and any corporate resolutions regarding the use of net
profit for distributions;


 


(i)            any discharge of the Chief Executive
Officer and/or of the Swiss Trustees from liability pursuant to applicable
Swiss corporate law;


 


(j)            division of any shares of the
Company; or


 


(k)           commencing any litigation or filing
any claims in Swiss court against the Chief Executive Officer or any of the
Swiss Trustees or a Member for damages resulting from the Company’s formation
or management.


 


18





















 


Section 6.05.  Meetings of Committee of
Representatives.  (a) Regular Meetings.  The
Committee of Representatives shall hold regular meetings at least quarterly,
rotating between a location in the United States determined by Cymer and a
location in Germany determined by Zeiss LOB, or such other location as
determined by the Committee of Representatives. 
Written notice of each meeting shall state the place, date and hour of
such meetings, and include an agenda of matters to be considered at the
meeting.  Notice shall be given in the
manner prescribed herein not fewer than seven days nor more than 60 days before
the date thereof.


 


(b)           Special
Meetings.  In addition, any
Representative may, on at least five business days prior written notice to the
other Representatives, call a special meeting of the Committee of
Representatives, specifying in reasonable detail in such notice the purpose of
such meeting.


 


(c)           Quorum.  The presence of three Representatives shall
constitute a quorum for the transaction of business at a duly noticed meeting
of the Committee of Representatives.  If
a quorum shall fail to be present for such a meeting, then any Representative
may provide a supplemental notice to the other Representatives rescheduling
such meeting at least 48 hours after such supplemental notice.  For the avoidance of doubt, a quorum shall be
required at such rescheduled meeting.


 


(d)           Objections.  Attendance of a Representative at a meeting
shall constitute a waiver of notice of such meeting, except if such
Representative attends the meeting for the express purpose of objecting, at the
beginning of the meeting, to the transaction of business at such meeting
because the meeting has not been validly called, noticed or convened.


 


(e)           Chair of
Meeting.  Prior to each
meeting, one of the Representatives shall be designated as lead Representative
to serve as chair of the meeting.  The
lead Representative shall rotate from meeting to meeting between a
Representative designated by Zeiss LOB and a Representative designated by
Cymer.


 


(f)            Taking Decisions. 
Except where this Agreement specifically provides otherwise, any
decision taken at a meeting of the Committee of Representatives must be
approved as follows: (i) if the Committee of Representatives consists of
four Representatives and Cymer and Zeiss LOB are each entitled to designate two
Representatives, the decision shall require the consent of [. . . *** . . .] Representatives; (ii) if
the Committee of Representatives is increased to five Representatives pursuant
to Section 10.02 of this Agreement, the decisions shall require only the
consent of the Representatives of the Member having a [. . . *** . . .] of the Percentage Interests; and (iii) if
one Member is entitled to designate all the Representatives pursuant to Section 11.03,
the decisions shall require [. . . ***
.. . .] the consent of the Representatives of that Member.


 










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TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


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(g)           Expenses.  Each Member shall pay all reasonable travel
and other expenses of the Representatives designated by such Member in
connection with participating in meetings of the Committee of Representatives.


 


Section 6.06.  Decision by Consent.  Any decision required or permitted
to be taken by the Committee of Representatives or Members Meeting, either at a
meeting or otherwise, may be taken without a meeting if all Representatives or
Members consent thereto in writing.  Any
such decision of the Committee of Representatives, taken without a meeting,
must be confirmed in writing by all Representatives.  Any such decision of the Members Meeting,
taken without a meeting, shall be confirmed in writing by all the Members.


 


Section 6.07.  Telephonic Meetings.  Representatives may participate in
a meeting of the Committee of Representatives by means of conference telephone
or similar communications equipment by means of which all persons participating
in the meeting can hear each other, and such participation in a meeting shall
constitute presence in person at the meeting.


 


Section 6.08.  Swiss Legal
Implementation.  (a) The
Members undertake to participate in Members Meetings and to exercise their
voting rights with regard to and in strict compliance with the provisions of
this Agreement.  With respect to any
action reserved for and approved by the Committee of Representatives pursuant
to Section 6.01(c), the Members undertake to and shall use their voting
rights in Members Meetings in such way as to ensure that the decisions taken by
the Committee of Representatives are approved.


 


(b)           For the purposes of
implementing the corporate governance structure set forth in the other
provisions of this Article 6 in a manner consistent with applicable Swiss
corporate law, the Company shall have in addition to the Chief Executive
Officer, two additional “Geschäftsführer”,
each one designated by each of the Members and each being a Swiss resident
(each a “Swiss Trustee”)


 


(c)           The Swiss Trustees
shall exercise their powers as Geschäftsführer
each in accordance with a trust agreement (the “Swiss Trust
Agreement”), substantially in the form attached hereto as Exhibit H,
to be entered into among the Swiss Trustees and the Members, which agreements
shall provide, among other things, that the Swiss Trustees shall only act on
joint instructions from both Members. 
The Swiss Trustees shall be granted power to sign for the Company only
jointly by two and not individually, such power to be exercised solely in
accordance with the Swiss Trust Agreement, which power shall be entered into
the commercial register.


 


(d)           The Chief Executive
Officer shall exercise his powers as Geschäftsführer
so as to vote for, ratify, give full effect to and facilitate, and not to
hinder or contravene, any decision or action taken by the Members Meeting in


 


20





















 


accordance
with the other provisions of this Agreement. 
The Chief Executive Officer shall be granted power to sign for the
Company individually, such power to be exercised solely in accordance with this
Section 6.08(d) and the other provisions of this Agreement, which
power shall be entered into the commercial register.  This Section 6.08(d) shall not
confer on the Chief Executive Officer any power or authority not otherwise
conferred on such officer in accordance with the other provisions of this
Agreement.


 


(e)           It is understood and
agreed that this Section 6.08 is intended to implement the corporate
governance structure set forth in the other provisions of this Article 6 in
a manner consistent with applicable Swiss corporate law.  Accordingly, this Section 6.08 shall not
require, authorize or permit the Chief Executive Officer, or the Swiss Trustees
to take any decision or action not otherwise authorized, permitted or required
under the other provisions of this Article 6.  To the extent any decision or action to be
taken in accordance with the other provisions of this Article 6 cannot be
implemented effectively pursuant to this Section 6.08 in a manner
consistent with applicable Swiss corporate law, the Members hereby agree to
amend this Section 6.08 as may be reasonably necessary for such
implementation.


 


Section 6.09.  Nature of Obligations among
Members.  Except as otherwise
provided in this Agreement or by written agreement among the Members, no
Representative shall have any authority to act for or assume any obligation or
responsibility on behalf of any Member or the Company, and no Member shall have
any authority to act for or assume any obligation or responsibility on behalf
of any other Member or the Company.


 


ARTICLE 7

ACCOUNTING AND TAX MATTERS


 


Section 7.01.  Fiscal Year/Independent
Auditors.  The fiscal year of
the Company (the “Fiscal Year”)
shall end on December 31st of each year. 
The Members Meeting shall select the Company’s independent auditors,
which shall be a recognized international accounting firm based upon decisions
taken by the Committee of Representatives.


 


Section 7.02.  Books and Records.  (a) The Company shall keep,
including through bookkeeping services rendered pursuant to the Administrative
Services Agreement, adequate books and records at its principal office.  Such books and records shall include a
current list of the full name and last known business, residence or mailing
address of each Member, originals of this Agreement, and any amendments thereto
(and any signed powers of attorney pursuant to which any such document was
executed), a copy of the Company’s federal, cantonal, communal and other tax
returns and reports, if any, and annual financial statements of the Company,
for the [. . . *** . . .] ([. . . *** . . .]) most recent [. . . *** . . .], and minutes of


 










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proceedings of the Members Meeting. 
The Company’s books of account and business records shall be filed and
preserved for a period of at least [.
.. . *** . . .] ([. . . *** . .
..]) [. . . *** . . .] or
such longer period as required by law.


 


(b)           The Company shall
permit each Member and its officers, agents and representatives, upon
reasonable advance notice and during normal business hours and such other times
as any such Member may reasonably request, to: 
(i) visit and inspect any of the properties of the Company; (ii) examine
the corporate and financial records of the Company and make copies thereof or
extracts therefrom, and (iii) discuss the affairs, finances, and accounts
of the Company with the Representatives, officers, employees, and independent
accountants of the Company.  In addition,
the Company shall require its independent accountants to make available to the
Members copies of all reports, investigations and work papers prepared by such
accountants during the course of any audit of the Company or otherwise, provided that the Members may be required to enter into the
standard form of agreement customarily required by such independent accountants
as a condition to access to such material. 
Any Member may, at its own expense, request and obtain a separate audit
of the Company’s books by its own accountant, provided
that such separate audit is not made more frequently than [. . . *** . . .] in each Fiscal Year
and that at least [. . . *** . . .] ([. . . *** . . .]) [. . . *** . . .] prior written
notice of such request is given to the Chief Executive Officer.  The Chief Executive Officer shall cause the
Company’s officers and employees to cooperate with such Member’s accountant in
the execution and preparation of such audit, including providing customary
certifications to such Member’s accountant.


 


Section 7.03.  Financial Reports.  (a) The Company, at its
expense, shall provide or cause to be provided to each Member, no later than
thirty days after the close of each of the first three quarters of the Company’s
Fiscal Year, and no later than ninety days after the end of each such Fiscal
Year, a financial report of the business and operations of the Company prepared
in accordance with GAAP consistently applied, relating to such period, which
report shall include (i)  a balance sheet as at the end of such period, (ii) a
statement of income (loss) containing actual operating performance vs. budgeted
operating performance for the current period and the year-to-date, and (iii) a
cash flows statement (including sources and uses of funds) for the current
period and the year-to-date, and in each case a comparison of the period then
ended with the corresponding period in the Fiscal Year immediately preceding
such periods, which, in the case of the report furnished after the close of the
Fiscal Year, shall be audited by the Company’s independent certified public
accountants, and which, in the case of the reports furnished after each of the
first three quarters of the Company’s Fiscal Year, shall be unaudited and shall
not include any notes thereto.  In
addition, the quarterly financial statements shall be accompanied by (x) a
statement of changes in Members’ equity containing a detail of Capital
Contributions, distributions and income/loss allocations for each of the
Members and in total, for the current period and the year-to-date, and (y) an
analysis, in reasonable detail, of the variance between the Company’s operating
results and the corresponding amounts


 










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in the then current annual Budget. 
The quarterly financial reports may in each case be subject to normal
year-end adjustments.  In addition, the
Members shall be entitled to any other financial information, including monthly
management reports in the form produced by the Company, that the Members may
reasonably request.


 


Section 7.04.  Tax Matters.  The Company and its Affiliates
shall abide by the tax law and regulations in each jurisdiction in which it
operates and shall cooperate with the Members to provide documents and
information that either Member may need to file its own tax returns in any
jurisdiction.


 


ARTICLE 8

CERTAIN COVENANTS


 


Section 8.01.  Press Release.  Upon the Closing or such other
time as may be mutually agreed, Cymer and Zeiss SMT shall issue a mutually
agreed joint press release, announcing the formation of the Company and their
collaboration under this Agreement.


 


Section 8.02.  Non-Competition.  In order to ensure the requisite
level of dedication to enable the Company to offer the most competitive
products in the marketplace, until such time as a Member ceases to be, directly
or through an Affiliate, a Member of the Company (at which time such Member and
its Affiliates may become subject to the non-compete covenant set forth in Section 11.02(b))
or the Company is dissolved, neither such Member nor any of its Affiliates
shall engage, either directly or indirectly, as a principal for its own account
or solely or jointly with others, or as a stockholder in any corporation or
joint stock association, in any business engaged in the Business (other than
the Company or as contemplated by the Joint Venture Documents).  For the avoidance of doubt, without limiting
the generality of the foregoing covenant, it is acknowledged and agreed that
until such time as a Member ceases to be, directly or through an Affiliate, a
Member of the Company (at which time such Member and its Affiliates may become
subject to the non-compete covenant set forth in Section 11.02(b)) or the
Company is dissolved, neither such Member nor any of its Affiliates shall
knowingly supply services, products or components for use in products or
services competitive with the Business or the Products of the Company; provided, however, that if neither IMT nor any Person under
its control continues to act as supplier of Stages (as defined in the Supply
Agreement) or other products to the Supplier or an Affiliate of the Supplier
under the Zeiss Supply Agreement, IMT and any Person under its control shall
cease to be subject to the foregoing covenant [. . . *** . . .] after the date IMT and any person under its
control ceased to act as a supplier.


 










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ARTICLE 9

EXCULPATION AND INDEMNIFICATION


 


Section 9.01.  Exculpation and
Indemnification.  Each Member
agrees that it shall vote its shares in the Company and take all other
necessary action in its capacity as a shareholder of the Company (including, to
the extent permissible pursuant to applicable law, causing the Company to call
a special meeting of Members) to provide for (a) the elimination of the
liability of each Representative on the Committee of Representatives to the
maximum extent permitted by applicable law (and each Member hereby irrevocably
waives any right to pursue and agrees to vote its shares and take all other
necessary action in its capacity as a shareholder of the Company not to pursue
any such eliminated liability) and (b) indemnification of each
Representative on the Committee of Representatives for acts on behalf of the
Company, if any, to the maximum extent permitted by applicable law.


 


ARTICLE 10

DISPOSITION OF INTERESTS


 


Section 10.01.  General.  (a) No Member may Transfer
all or any part of its Interest, and no Member Parent may Transfer its direct
or indirect interest in a Member that is its Affiliate (each a “Transfer of an
Interest”), without the consent of the other Member, except that no consent
shall be required for (and the non-Transferring Member shall give any consent
that may be required under mandatory Swiss company law to effect) the direct or
indirect Transfer by the Member of the entirety of a Member’s Interest or by a
Member Parent of the entirety of its interest in a Member that is its Affiliate
to


 


(i)    any Affiliate of such Member; or


 


(ii)   with respect to any Transfer [. . . *** . . .], any other Person
if (x) such other Person is not a competitor of the other Member or Member
Parent and (y) the aggregate purchases by the Company and its Affiliates of
Products containing Core Components (as such terms are defined in the Supply
Agreement between the relevant Member or its Affiliate and the Company) from
the relevant Member or its Affiliate under the Supply Agreement during the last
four fiscal quarters of the Company for which financial statements are
available accounted for not more than [.
.. . *** . . .]% of the Company’s aggregate cost of (A) the bill of
materials for goods sold and (B) system integration during the same period
(each of the transferees referred to in clauses (i) and (ii) above a “Permitted Transferee”); and no Permitted Transferee may
Transfer any or all of its Interest, except the entirety of its Interest to
another Permitted Transferee.  In the event
a Member transfers its Interest to an Affiliate, such Affiliate shall, unless
otherwise agreed by the other Member, assume


 










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all of the transferring Member’s obligations
under this Agreement and such Member hereby agrees to irrevocably and
unconditionally guarantee to the Company and the other Member the timely
payment and performance by such Affiliate of such Member’s obligations
thereunder for so long as such transferee remains an Affiliate of the
transferring Member.


 


(b)           Any Transfer of an
Interest that is not made in compliance with the provisions of this Agreement
shall be void, and the Company shall not recognize any such Transfer.  Any purported or attempted transfer of any
Interest that is not made in compliance with the provisions of this Agreement
shall constitute a material breach of this Agreement.  Notwithstanding anything else contained
herein, no Transfer shall be made except in compliance with applicable law.


 


(c)           For the avoidance of
doubt, the provisions of this Article 10 shall not apply to any Transfer
of any direct or indirect interest in a Member that could be deemed to occur as
a result of a change of control involving the relevant Member Parent.


 


Section 10.02.  Non-affiliate Transfers.  (a) Prior to any Transfer of
an Interest permitted under Section 10.01(a)(ii) above, the Member or
Member Parent, as the case may be, who proposes to Transfer its Interest (the “Transferring Member”) (such transferee, the “Proposed Transferee” and such transfer, a “Non-Affiliate Transfer”) shall give the other Member (the “Non-Transferring Member”) written notice of its intention,
describing the Proposed Transferee, the price and the terms and conditions of
the proposed Transfer.  The
Non-Transferring Member shall have a right [. . . *** . . .] to purchase the Transferring Member’s Interest
at [. . . *** . . .] and upon [. . . *** . . .] by the Proposed
Transferee.  The Non-Transferring Member
shall have thirty (30) days from the receipt of such notice to agree to
purchase the Transferring Member’s Interest by giving written notice to the
Transferring Member.  If the
Non-Transferring Member fails to exercise its right [. . . *** . . .] under this Section 10.02(a), the
Transferring Member shall have thirty (30) days thereafter to sell its Interest
to the Proposed Transferee at a price and upon terms and conditions [. . . *** . . .] to the Proposed
Transferee than specified in the Transferring Member’s notice to the
Non-Transferring Member of the proposed Transfer.  If the Transferring Member does not sell its
Interest to the Proposed Transferee during such thirty (30) day period, the
Transferring Member shall not thereafter Transfer its Interest, without first
offering such Interest to the Non-Transferring Member in the manner provided
above.


 


(b)           Following the
consummation of a Transfer of an Interest either (x) to a Proposed Transferee
pursuant to a Non-Affiliate Transfer or (y) to the Non-Transferring Member upon
the exercise of such Member’s right [.
.. . *** . . .] pursuant to Section 10.02(a) above:


 










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(i)    the Transferring Member and its Affiliates
shall be subject to the non-compete covenant set forth in Section 11.02(b) as
if the Transferring Member were the Triggering Party; provided
that the Non-Compete Period shall begin on the date of the [. . . *** . . .] of the Transfer and
end on the [. . . *** . . .] of
the [. . . *** . . .] of such [. . . *** . . .] or the [. . . *** . . .] of the [. . . *** . . .]; and


 


(ii)   (A)  the Representatives of the
Transferring Member shall be automatically removed from the Committee of
Representatives and (B) if the Transferring Member is [. . . *** . . .] or its Affiliate, (1) the size of the
Committee of Representatives shall be increased to five Representatives, (2) each
Member shall be entitled to designate a number of Representatives that is in
proportion to its Percentage Interest (three Representatives for a 60%
Percentage Interest, two Representatives for a 40% Percentage Interest) and (3) actions
by or decisions of the Committee of Representatives shall no longer require [. . . *** . . .] pursuant to Section 6.05(f),
but only approval by [. . . *** . . .]
of the Representatives participating at a duly convened meeting at which
a quorum is present (in person or by proxy).


 


Section 10.03.  Recognition of Transfers.  (a)  Prior to any Transfer of
its Interest as permitted by this Article 10, the Member transferring such
Interest shall give written notice of such Transfer to the other Member and to
the Company.  Upon receipt of such written
notice, the Company shall notify the transferee of the transfer restrictions
contained in this Agreement.


 


(b)           No transferee shall
be admitted to the Company as a Member unless the Transfer was permitted
hereby.  Subject to the foregoing, each
such transferee, as a condition to its admission as a Member, shall execute and
deliver to the Company such instruments, in form and substance satisfactory to
the Members, as the Members shall reasonably deem necessary or desirable to
confirm the agreement of such transferee to be bound by all the terms and
provisions of this Agreement (as it may be amended in connection with the
admission of such transferee as a Member). 
The Members agree to amend this Agreement to the extent necessary to
reflect the transfer and admission of the new Member and to continue the
Company without dissolution.  Upon
execution of such instruments, the transferee shall be admitted to the Company
as a Member.  Immediately following the
admission of the transferee to the Company as a Member, the Member who has
thereby transferred all of its Interest shall cease to be a Member of the
Company.  The transferee, as a Member of
the Company, and the other Member are hereby authorized to, and shall, continue
the business of the Company without dissolution.


 


(c)           Any transferee who is admitted to the
Company as a Member shall succeed to the rights and powers (including
distribution preferences), and be


 










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subject to the
restrictions and liabilities, of the transferor Member to the extent of the
Interest transferred.


 


ARTICLE 11

TERMINATION, DISSOLUTION AND LIQUIDATION


 


Section 11.01.  Term.  The term of the Company shall
continue until the Company is dissolved pursuant to this Article.


 


Section 11.02.  Triggering Events.  (a) Within the first 15 days
of each [. . . *** . . .] (beginning
in [. . . *** . . .]) either
Member (such Member, the “Triggering Party”)
may, for convenience, notify the other Member (the “Non-Triggering
Party”) in writing of its election to treat such notice as a “Triggering Event.”


 


Upon notice of
a Triggering Event, the Non-Triggering Party will notify the Triggering Party
in writing within 15 days of the Non-Triggering Party’s exercise of one of the
following options:


 


(i)    purchase the Triggering Party’s Interest at
a [. . . *** . . .] ([. . . *** . . .]); provided that the Triggering Party shall remain liable for
any Required Funding Contributions for the Fiscal Year in which the Triggering
Event occurs, pro-rated for the period from the beginning of such Fiscal Year
to the Triggering Event, and provided further
that the Triggering Party shall be entitled to receive, in addition to the cash
purchase price, any royalties if and as payable to it pursuant to the
Intellectual Property Agreement; or


 


(ii)   dissolve and commence winding up of the
Company pursuant to Section 11.05(c).


 


Upon receipt
by the Triggering Party, such notice shall be final and irrevocable, unless
otherwise agreed by the Triggering Party.


 


(b)           If the
Non-Triggering Party has exercised its option (i) pursuant to Section 11.02(a),
then effective from the consummation of the purchase of the Triggering Party’s
Interest by the Non-Triggering Party, the Triggering Party and its Affiliates
shall not for a period beginning on the date of such [. . . *** . . .] and ending on the [. . . *** . . .] of the [.
.. . *** . . .] of such [. . .
*** . . .] or the [. . . *** .
.. .] of the [. . . *** . . .] (the
“Non-Compete Period”) engage, either
directly or indirectly, as a principal for its own account or solely or jointly
with others, or as a stockholder in any corporation or joint stock association,
in any business engaged in the Business (other than the Company).  For the avoidance of doubt, without limiting
the foregoing covenant, it is acknowledged and agreed that


 










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neither the
Triggering Party nor any of its Affiliates shall knowingly supply services,
products or components for use in products or services competitive with the
Business or the Products of the Company during the Non-Compete Period (other than
to the Company and its Affiliates and the Non-Triggering Party).


 


(c)           If the
Non-Triggering Party exercises its option (ii) pursuant to Section 11.02(a),
(A) the Intellectual Property Rights of the Company shall be distributed
to the Members as joint owners of an equal undivided interest therein with no
duty to account to the other party and (B) each Member shall be entitled
to receive, as soon as possible and in any event within 30 days after the
exercise of such option by the Non-Triggering Party, copies of source code,
documentation and other materials as may be necessary to continue to develop
the Products.


 


Section 11.03.  Breach under this Agreement or
Event of Default under Supply Agreements.  If a material breach of this Agreement,
including without limitation any failure by a Member to pay its Required
Funding Contributions when due, or an Event of Default (as defined in the
Supply Agreements) on the part of the Supplier that is an Affiliate of such
Member occurs and remains unremedied for a period of 30 days following notice
thereof from the non-defaulting Member and is continuing, in addition to, and
without prejudice to, any and all other remedies, the non-defaulting Member
may, at its option, either (A) treat such default as a “Triggering Event”
pursuant to Section 11.02(a) except that the non-defaulting Member
shall be treated as the Non-Triggering Party and the defaulting Member shall be
treated as the Triggering Party thereunder or (B) remove the two
Representatives on the Committee of Representatives designated by the
defaulting Member and designate two Representatives selected by the
non-defaulting Member in its sole discretion to replace such removed
Representatives to serve until such time as the material breach or Event of
Default has been remedied by the defaulting Member.  In addition to replacement of such removed
Representatives, if the breach is non-payment of a Required Funding
Contribution, then without limiting the non-defaulting Member’s other rights
under this Agreement, (A) the non-defaulting Member shall have the right,
in its sole discretion, to pay the defaulting Member’s Required Funding
Contribution and (B) the non-defaulting Member’s Percentage Interest shall
be increased to a percentage equal to the quotient of (x) the sum of the
cumulative contributions paid by the non-defaulting Member since inception of
the Company (including pursuant to this Section 11.03), divided by (y) the
sum of the cumulative contributions paid by both Members (including pursuant to
this Section 11.03) since inception of the Company, and the other Member’s
Percentage Interest shall be reduced accordingly; provided
that if the material breach by the defaulting Member is willful, occurs at any
time [. . . *** . . .] and
remains unremedied for a period of 30 days following notice thereof from the
non-defaulting Member and is continuing, in addition to, and without prejudice
to, any and all other remedies (including pursuant to the first part of this Section 11.03),
the non- defaulting Member may treat such breach as a “Triggering Event”
pursuant to Section 11.02(a) except that the willfully defaulting
Member shall be


 










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treated as the Triggering Party thereunder and provided
that the purchase price for the willfully defaulting Member’s Interest shall be
$[. . . *** . . .], and provided further that the willfully defaulting Member shall
remain liable for its share of all Required Funding Contributions for the
Fiscal Year in which the breach occurs.


 


Section 11.04.  Change of Control.  (a) Change of Control at Parent
Level.  If, through a
transaction or series of transactions, a Member Parent of a Member is acquired
by, or comes otherwise under the control of, a competitor or Major Customer of
the other Member Parent, the other Member may treat such event as a “Triggering
Event” pursuant to Section 11.02(a), except that such other Member shall
be treated as the Non-Triggering Party and the Member whose Member Parent is
affected by such event shall be treated as the Triggering Party
thereunder.  As used in this Section 11.04,
“Major Customer” means, with respect to
any Member Parent from time to time, a customer that (i) accounts for in
excess of [. . . *** . . .]% of
the consolidated revenues of such Member Parent during the preceding twelve
(12) months for which financial statements are available or (ii) is of
material strategic significance to the future development of the consolidated
business of such Member Parent due to an expected share of such Member Parent’s
consolidated revenues in excess of [.
.. . *** . . .]% during any twelve (12) month period within the next [. . . *** . . .] based upon the
projected revenues in such Member Parent’s then current business plan, in each
case as shall have been certified to the other Member Parent by the chief
executive officer of such Member Parent prior to any relevant transaction.


 


(b)           Supplier and
Company Interest No Longer Affiliates.  If,
as a result of a transaction or series of transactions other than a Transfer of
an Interest to a Permitted Transferee pursuant to Section 10.01(a), a
Supplier ceases to be an Affiliate of a Member without becoming an Affiliate of
a Person that, as a result of such transaction or series of transactions, Article 10,
becomes a Member or an Affiliate of a Member, then the Member that was not an
Affiliate of such Supplier immediately prior to such transaction or series of
transactions may treat such event (a “Triggering
Separation”) as a “Triggering
Event” pursuant to Section 11.02(a), except that such Member shall be
treated as the Non-Triggering Party and the other Member shall be treated as
the Triggering Party thereunder.


 


(c)           Joint Transfer of Supplier and Company Interest.  Notwithstanding any other provision of this Article 11
or Article 10, any Transfer of an Interest by a Member or Member Parent,
in a transaction or series of transactions, that does not result in a
Triggering Separation shall be permitted at all times, whether or not to a
Permitted Transferee, as long as the transferee is not a competitor or Major
Customer of the Member Parent of the other Member, subject to compliance with
this Section 11.04(c).  In
connection with any Transfer permitted under this Section 11.04(c), (x)
the other Member shall have a [. . .
*** . . .] with respect to the Interest and interest in or assets of the
Supplier to be Transferred, and any other assets to be transferred as part of
such transaction or series of transactions, such right to be exercised in the
manner set forth in Section 10.02(a),


 










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(y) the
transferring Member or Member Parent, as the case may be, and its Affiliates
shall be subject to the non-compete covenant set forth in Section 11.02(b) as
if the transferring Member were the Triggering Party; provided
that the Non-Compete Period shall begin on the date of the [. . . *** . . .] of the Transfer and
end on the [. . . *** . . .] of
the [. . . *** . . .] of such [. . . *** . . .] or the [. . . *** . . .] of the [. . . *** . . .], and (z) if as a
result of such Transfer Member and the Supplier are no longer Affiliates of [. . . *** . . .], the composition of
the Committee of Representatives shall be modified as set forth in Section 10.02(b)(ii).  The provisions of this Section 11.04(c) shall
not apply to any Transfer of any direct or indirect interest in a Member that
could be deemed to occur as a result of a change of control involving the
relevant Member Parent.


 


Section 11.05.  Liquidating Events.  The Company shall dissolve (and
each Member agrees to vote its shares in favor such dissolution) and commence
winding up upon the first to occur of any of the following events (each a “Liquidating Event”):


 


(a)       upon the unanimous written agreement of
the Members to dissolve and wind up the Company;


 


(b)      any time there are no Members of the
Company unless the Company is continued in accordance with applicable law;


 


(c)       upon the exercise of the Non-Triggering
Party of its option (ii) upon notice of a Triggering Event in accordance
with Section 11.02(a); or


 


(d)      the entry of a decree of judicial
dissolution pursuant to applicable law.


 


Section 11.06.  Winding Up.  Upon the occurrence of a
Liquidating Event, the Company shall continue solely for the purposes of
winding up its affairs in an orderly manner, distributing its Intellectual
Property Rights, liquidating its assets, and satisfying the claims of its
creditors and Members, and no Member shall take any action that is inconsistent
with, or not necessary to or appropriate for, the winding up of the Company’s
business and affairs; provided that
all covenants contained in this Agreement and obligations provided for in this
Agreement shall continue to be fully binding upon the Members until such time
as the assets or property or the proceeds from the sale thereof has been
distributed pursuant to this Article and the Company has terminated.  The Member with the greater Percentage
Interest, or in the case of a Liquidating Event pursuant to Section 11.05(c),
the Non-Triggering Party, shall be responsible for overseeing the winding up of
the Company.  Such party (the “Liquidator”) shall take full account of the Company’s assets
and liabilities, and except as otherwise required by law, the Company’s affairs
shall be wound up in an orderly manner in accordance with the following
procedures:


 










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(a)           (A) the Intellectual Property
Rights of the Company shall be distributed to the Members as joint owners of an
equal undivided interest therein with no duty to account to the other party and
(B) each Member shall be entitled to receive, as soon as possible and in
any event within 30 days after the Liquidating Event, copies of source code,
documentation and other materials as may be necessary to continue to develop
the Products.


 


(b)           To the extent that the Liquidator
determines that any or all of the assets of the Company (other than the
Intellectual Property Rights provided for in Section 11.06(a) above)
shall be sold, such assets shall be sold as promptly as possible, but in a
business-like manner so as not to involve undue sacrifice, and the proceeds
thereof shall be used first to satisfy any liabilities of the Company and then
shall be distributed to the Members in accordance with their Percentage Interests.


 


Section 11.07.  Rights of Members;
Resignation.  (a)  Except
as otherwise provided in this Agreement, each Member shall look solely to the
assets of the Company for the return of its capital contributions and shall
have no right or power to demand or receive property other than cash from the
Company.


 


(b)           No Member shall
resign from the Company prior to the dissolution and winding up of the Company
in accordance with this Agreement.


 


Section 11.08.  Waiver of Partition.  Each Member hereby irrevocably
waives any and all rights that it may have pursuant to Swiss law to maintain an
action for partition of any of the Company’s property, or to compel a sale
thereof.


 


ARTICLE 12

MISCELLANEOUS


 


Section 12.01.  Notices.  All notices, requests and other communications
to any party or to the Company shall be in writing (including facsimile or
similar writing) and shall be given:


 


if to the
Company, to such address as the Company shall notify the other parties hereto
as soon as possible after its formation;


 


if to Cymer,
to:


 


Cymer, Inc.


17075 Thornmint Court


San Diego, CA 92127-1712 USA


Attn:  Chief Financial Officer

Fax No.: (858) 385-6090


 


31





















 


with a copy
to:


 


Cooley Godward LLP


Five Palo Alto Square


3000 El Camino Real

Palo Alto, CA 94306-2155 USA


Attn: Gary H. Moore

Fax No.: (650) 849-7400


 


if to Zeiss
LOB, to:


 


Carl Zeiss Laser Optics Beteiligungsgesellschaft mbH


Carl-Zeiss-Strasse 22


73447 Oberkochen, Germany


Attention: Axel Jaeger


Facsimile No: [. . . *** . .
..]


Telephone No.: [. . . *** . .
..]


 


if to Zeiss
SMT, to:


 


Carl Zeiss SMT AG


Carl-Zeiss-Strasse 22


73447 Oberkochen, Germany


Attention: Dr. Hermann Gerlinger


Facsimile No: 011-49-7364-208100


Telephone No.: [. . . *** . .
..]


 


with a copy
to:


 


Davis Polk & Wardwell


99 Gresham Street


London EC2V 7NG


Attention: John W. Banes


Facsimile No: 011-44-20-7418-1055

Telephone No.: 011-44-20-7418-1317


 


or to such
other address or facsimile number as any such party may hereafter specify for
the purpose by notice to the other parties. 
Each such notice, request or other communication shall be effective when
received at the address specified in this Section, or such other address or
facsimile number as such party may hereafter specify for the purpose by notice
to the other parties hereto.  All such
notices, requests and other communications shall be deemed received on the date
of receipt by the recipient thereof if received prior to 5:00 p.m. in the
place of receipt and such day is a business day in the place of receipt.  Otherwise, any such


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


32





















 


notice,
request or communication shall be deemed not to have been received until the
next succeeding business day in the place of receipt.


 


Section 12.02.  Amendments; No Waivers.  (a) Any provision of this
Agreement may be amended or waived if, and only if, such amendment or waiver is
in writing and signed, in the case of an amendment, by each Member, or in the
case of a waiver, by the Member against whom the waiver is to be effective.


 


(b)           No failure or delay
by any party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.  The rights
and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.


 


Section 12.03.  Expenses.  All costs and expenses incurred by
the parties hereto in connection with this Agreement shall be paid by the party
incurring such cost or expense, except that any incremental legal or
administrative costs or expenses incurred by Cymer or the Company resulting
from legal organization of the Company in Switzerland and described in more
detail in Exhibit E shall be paid by Zeiss LOB.


 


Section 12.04.  Zeiss SMT [. . . *** . . .].  For so long as Zeiss LOB is
controlled by Zeiss SMT, Zeiss SMT [.
.. . *** . . .] by Zeiss LOB of Zeiss LOB’s obligations under this
Agreement.


 


Section 12.05.  Successors and Assigns.  This Agreement is personal to the
Members and may not be assigned or otherwise transferred by a Member except to
a transferee of such Member’s Interest in connection with a transfer permitted
by and made in accordance with the terms hereof.  Any purported assignment or other transfer in
violation of this Agreement shall be null and void.  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and assigns. 
This Agreement is for the sole benefit of the parties hereto and, except
as otherwise contemplated herein, nothing herein expressed or implied shall
give or be construed to give any Person, other than the parties hereto, any
legal or equitable rights hereunder.


 


Section 12.06.  Headings.  Headings are for ease of reference
only and shall not form a part of this Agreement.


 


Section 12.07.  Entire Agreement.  This Agreement together, with the
Exhibits hereto, and any documents referred to herein or therein, constitutes
the entire agreement of the Members with respect to the subject matter
hereof.  Any references in this Agreement
to provisions in the Exhibits to this Agreement are intended for clarification
only, and in the event of any inconsistency, the provisions of the Exhibits
shall govern.


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


33





















 


Section 12.08.  Governing Law.  This Agreement shall be governed
by, and construed under, the laws of [.
.. . *** . . .] (without regard to conflicts of laws principles).


 


Section 12.09.  Waiver of Jury Trial.  EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


 


Section 12.10.  Dispute Resolution;
Arbitration.  (a) Any
dispute, controversy or claim arising out of or in connection with this
Agreement, or any of the Joint Venture Documents, or the alleged breach,
termination or invalidity thereof, may be escalated, at the request of either
Member, to the Chairman of the Board (or equivalent officer) of each Member for
resolution.  In the event of such a
request, the Chairmen shall meet, either in person or by telephone, within
thirty (30) days after the date of such request in order to discuss and attempt
to resolve such dispute, controversy or claim by mutual agreement.


 


(b)           Any dispute,
controversy or claim arising out of or in connection with this Agreement or the
alleged breach, termination or invalidity thereof that is not settled by the
dispute resolution process set forth in Section 12.10(a) or otherwise
by the joint agreement of the Parties shall be finally settled under Rules of
Arbitration of the International Chamber of Commerce by three arbitrators
appointed in accordance with the said Rules. 
Unless otherwise agreed by the Parties, such arbitration shall take
place in [. . . *** . . .].  Any award rendered by the arbitrators
will be final and binding on the parties, and judgment upon the award may be
entered in the [. . . *** . . .],
or any other court having jurisdiction over the award or having jurisdiction
over the parties or their assets.  The
arbitration agreement contained in this Section 12.10 will not be
construed to deprive any court of its jurisdiction to grant provisional relief
(including by injunction or order of attachment) in aid of arbitration
proceedings or enforcement of an award.


 


Section 12.11.  Counterparts;
Effectiveness.  This Agreement
may be signed in any number of counterparts, each of which shall be deemed an
original.  This Agreement shall become
effective only after and subject to each party having received a counterpart
hereof signed by each of the other parties.


 


Section 12.12.  Severability.  If any term, provision, covenant
or restriction of this Agreement is held by a court of competent jurisdiction
or other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party.  Upon such a determination, the parties


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


34





















 


shall negotiate in good faith to modify this Agreement so as to effect
the original intent of the parties as closely as possible in an acceptable
manner in order that the transactions contemplated hereby be consummated as
originally contemplated to the fullest extent possible.


 


Section 12.13.  Further Assurances; Swiss
Corporate Documents.  The
Members will execute and deliver such further instruments and do such further
acts and things as may be required to carry out the intent and purpose of this
Agreement.  In particular, and without
limiting the generality of the foregoing, each Member agrees (i) that the
Company’s Articles of Association (Statuten) and
other Swiss corporate legal documents (collectively, the “Swiss
Corporate Documents”) shall at all times contain provisions as may
be necessary or appropriate to give effect and facilitate the provisions of
this Agreement, (ii) that in the event of any inconsistency between the
Swiss Corporate Documents and this Agreement, this Agreement shall prevail and (iii) to
take such actions with respect to its shares or in its capacity as a
shareholder of the Company, including voting its shares at a shareholders
meeting and adopting any changes to the Swiss Corporate Documents, all to be
consistent with and in accordance with the terms of this Agreement.


 


[The remainder of this page is intentionally left blank.]


 


35





















 


IN WITNESS
WHEREOF, the parties hereto have entered into this Agreement as of the date set
forth above.


 


	
   

  	
  CYMER, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Robert P. Akins

  
	
   

  	
   

  	
  Name:

  	
  Robert P. Akins

  
	
   

  	
   

  	
  Title:

  	
  CEO

  
					



 


 


 


	
   

  	
  CARL ZEISS LASER OPTICS

  BETEILIGUNGSGESELLSCHAFT

  MBH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ J. Krause-Bonte

  
	
   

  	
   

  	
  Name:

  	
  Dr. Jürgen Krause-Bonte

  
	
   

  	
   

  	
  Title:

  	
  Attorney-in-fact (Handlungsbevollmächtigter)

  



 


 


	
   

  	
  CARL ZEISS SMT AG

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ H. Gerlinger, C.E.O.

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
  By:

  	
    /s/ Daniel Schoh 

  
	
   

  	
   

  	
  Name:

  	
  Daniel Schoh

  
	
   

  	
   

  	
  Title:

  	
  Member of the Board &

  CFO

  
						



 


 


	
   

  	
  Joined by TCZ GmbH as the Company as

  of                  ,
  2005:

  
	
   

  	
   

  
	
   

  	
  TCZ GMBH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian C. Klene

  
	
   

  	
   

  	
  Name:

  	
  Brian C. Klene

  
	
   

  	
   

  	
  Title:

  	
  President & CEO

  



 


36





















 


EXHIBIT A


 


Form of Intellectual Property Agreement


 





















 


Intellectual
Property Agreement


 


dated as of


 


                      ,
2005


 


among


 


Cymer, Inc.


 


Carl Zeiss SMT AG


 


and


 


TCZ GMBH


 


 


A-1





















 


TABLE OF
CONTENTS


 


	
   

  	
  Page

  
	
   

  	
   

  
	
  ARTICLE 1

  DEFINITIONS

  	
   

  
	
   

  	
   

  
	
  Section 1.01.
  Definitions

  	
  1

  
	
   

  	
   

  
	
  ARTICLE 2

  OWNERSHIP OF TECHNOLOGY

  	
   

  
	
   

  	
   

  
	
  Section 2.01
  Ownership of Foreground Technology

  	
  5

  
	
  Section 2.02.
  Ownership of Background Technology

  	
  5

  
	
  Section 2.03
  Employees and Contractors

  	
  6

  
	
   

  	
   

  
	
  ARTICLE 3

  PROSECUTION AND ENFORCEMENT OF SHARED FOREGROUND TECHNOLOGY

  	
   

  
	
   

  	
   

  
	
  Section 3.01.
  Prosecution of Inventions in Solely Owned Foreground Technology

  	
  6

  
	
  Section 3.02.
  Prosecution of Inventions in Shared Foreground Technology

  	
  8

  
	
  Section 3.03.
  Infringement of Patents in the Shared Foreground Technology by Third Parties

  	
  10

  
	
   

  	
   

  
	
  ARTICLE 4

  LICENSES

  	
   

  
	
   

  	
   

  
	
  Section 4.01.
  Non-Exclusive Licenses for Competencies

  	
  11

  
	
  Section 4.02
  Exclusive Licenses in Exclusive Fields

  	
  12

  
	
  Section 4.03
  License to JV of Selling Party’s Foreground Technology

  	
  12

  
	
  Section 4.04.
  License to Continuing Party of Selling Party’s Foreground Technology

  	
  12

  
	
  Section 4.05
  Limitation of Exclusivity of License to Selling Party of Foreground
  Technology of Continuing Party

  	
  13

  
	
  Section 4.06
  License to Selling Party of JV’s Foreground Technology

  	
  13

  
	
  Section 4.07
  No Right to Prosecute or Enforce

  	
  13

  
	
   

  	
   

  
	
  ARTICLE 5

  ROYALTIES

  	
   

  
	
   

  	
   

  
	
  Section 5.01.
  Royalties.

  	
  14

  
	
  Section 5.02.
  Reporting

  	
  14

  
	
  Section 5.03.
  Records Retention

  	
  15

  
	
  Section 5.04.
  Taxes

  	
  15

  



 


i


 


A-2





















 


	
   

  	
  Page

  
	
   

  	
   

  
	
  Section 5.05.
  Audit

  	
  15

  
	
   

  	
   

  
	
  ARTICLE 6

  TERM

  	
   

  
	
   

  	
   

  
	
  Section 6.01.
  Term

  	
  15

  
	
  Section 6.02.
  Survival

  	
  15

  
	
   

  	
   

  
	
  ARTICLE 7

  MISCELLANEOUS

  	
   

  
	
   

  	
   

  
	
  Section 7.01.
  Assignment

  	
  15

  
	
  Section 7.02.
  Independent Contractors

  	
  16

  
	
  Section 7.03.
  Severability

  	
  16

  
	
  Section 7.04.
  Entire Agreement.

  	
  16

  
	
  Section 7.05.
  No Waiver

  	
  16

  
	
  Section 7.06.
  Notices

  	
  16

  
	
  Section 7.07.
  Counterparts

  	
  17

  
	
  Section 7.08.
  Amendments

  	
  17

  
	
  Section 7.09.
  Expenses

  	
  17

  
	
  Section 7.10.
  Limitation Of Liability

  	
  17

  
	
  Section 7.11.
  Governing Law

  	
  18

  
	
  Section 7.12
  Dispute Resolution; Arbitration

  	
  18

  
	
  Section 7.13.
  WAIVER OF JURY TRIAL

  	
  18

  
	
  Section 7.14.
  Third Party Beneficiaries

  	
  18

  
	
  Section 7.15.
  Representation and Warranty

  	
  18

  
	
   

  	
   

  
	
  EXHIBITS

  	
   

  
	
   

  	
   

  
	
  Exhibit A

  	
  Competencies

  	
  20

  
	
   

  	
   

  	
   

  
	
  Exhibit B

  	
  Additional Products

  	
  23

  



 


ii


 


A-3





















 


Intellectual
Property Agreement


 


This Intellectual Property
Agreement (this “Agreement”) dated
as of                                           ,
2005 (the “Effective Date”) by and
among Cymer, Inc., a Nevada corporation (“Cymer”) having its principal offices located at 17075
Thornmint Court, San Diego, California USA 92127, Carl Zeiss SMT AG a stock
corporation organized under the laws of Germany (“SMT”) having its principal offices located at 73446
Oberkochen, Germany, and TCZ GmbH, a limited liability company organized under
the laws of Switzerland (“JV”)
having its principal offices located at
                                                                                    .  Cymer, SMT and JV are each a “Party” and together constitute the “Parties” to this Agreement.


 


RECITALS:


 


1.                                       The
Parties desire to collaborate to develop, integrate, market, sell and support
tools employing a beam generated by an excimer laser to induce crystallization
for Low Temperature of Poly-Silicon (LTPS) processing for the manufacture of
flat panel displays, including LCDs, LCD-SOGs and OLEDs, to engage in related
application development and any products, if any, within the scope of a
Business Plan approved by JV (the “Collaboration”).


 


2.                                       Cymer
and SMT have formed JV in furtherance of the Collaboration, pursuant to an
agreement dated July 15, 2005 (the “JV Agreement”).


 


3.                                       The
Parties are entering into this Agreement in order to set forth the intellectual
property rights in the intellectual property created during the term of the JV
and rights that will apply following the termination of the JV.


 


NOW, THEREFORE, in consideration
of the promises and the respective representations, warranties, covenants, and
agreements set forth herein, the Parties agree as follows:


 


ARTICLE 1

DEFINITIONS


 


Section 1.01.  Definitions.  (a) The following terms shall be used in
this Agreement with the following meanings. 
Capitalized terms not otherwise defined in this Agreement shall have the
meaning set forth in the JV Agreement.


 


“Affiliate”
means, with respect to any Person, any other Person directly or indirectly
controlling, controlled by or under common control with such Person.  As used herein, “control”
(and the derivative terms “controlling”
and “controlled”) means the direct or
indirect ownership of more than fifty percent (50%) of the equity securities or
other ownership interests and voting rights of,


 


1


 


A-4





















 


and the
possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of a person, whether through the ownership of
voting securities, by contract or otherwise. 
No party or its Affiliates shall by reason of this Agreement be deemed
to be an affiliate of the other party or its Affiliates.  The term “affiliated”
shall have a corresponding meaning. 
Notwithstanding the foregoing definition, when used with respect to SMT,
the term “Affiliate” shall exclusively mean
(a) SMT and any Person under the control of SMT and (b) IMT and any
Person under the control of IMT. 
Notwithstanding the foregoing definition, for purposes of this
Agreement, JV shall not be considered an Affiliate of either Cymer or SMT.


 


“Background Technology” means (i) Patents and Know-How
existing prior to the commencement of the Collaboration on August 1, 2004
that are owned, licensed or otherwise controlled by a Party or its Affiliates
and (ii) Patents and Know-How that are conceived, developed, licensed or
otherwise brought under the control of, a Party or its Affiliates outside the
Collaboration.


 


“Competency(ies)” means: with respect to Cymer and SMT, the fields specified
in Exhibit A as Cymer Competencies and Zeiss Competencies, respectively;
and with respect to JV, application development and systems integration with
respect to the Products.


 


“Continuation
Event” means (a) the exercise by the Non-Triggering Party of
its option to purchase the Triggering Party’s interest in JV following a
Triggering Event in accordance with the JV Agreement, (b) the exercise by
a Member of its rights [. . . *** . . .] to purchase the other Member’s
Interest in the JV under the JV Agreement, or (c) the Transfer by a Member
of its interest in the JV to a Permitted Transferee which is not an Affiliate
of such Member.


 


“Continuing Party”
shall mean (a) the Non-Triggering Party as defined in the JV Agreement,
(b) the Member that exercises its right [. . . *** . . .]
to purchase the Interest in the JV of
the other Member of the JV, or (c) the Member that retains its Interest in
the JV upon the Transfer by the other Member of the JV of its Interest in the
JV to a Permitted Transferee which is not an Affiliate of such Member.


 


“Cymer Contributed [. . . *** . . .]” means the [. . . *** . . .] ([. . . *** . . .]) [. . . *** . . .]
Cymer contributed to JV pursuant to
the Contribution Agreement dated as of the date hereof as identified in
Exhibit A hereto.


 


“Cymer Exclusive Fields” means those Competencies specified in
Exhibit A as Cymer Competencies that are not specified in Exhibit A
as Zeiss Competencies and are not specified as a JV Competency.


 


“Disclosed Know-How” means Know-How of one Party or its
Affiliates that is disclosed to another Party or its Affiliates in the course
of performance of the Collaboration.


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


2


 


A-5





















 


“Exclusive
Field” means the Cymer Exclusive Field, Zeiss Exclusive Field or JV
Exclusive Field, as applicable.


 


“Existing
Cross License Agreements” means
(i) [. . . *** . . .] and (ii) any
cross-license agreement in effect as of the Effective Date between a Party or
its Affiliates, on the one hand, and a third party, on the other hand.


 


“Foreground Technology” means Patents and Know-How relating to
Products that are made, conceived or reduced to practice in the course of
performance of the Collaboration by a Party or any of its Affiliates.  Foreground Technology does not include
Background Technology.


 


 “IMT” means Carl
Zeiss Industrielle Messtechnik GmbH, a limited liability company organized
under the laws of Germany.


 


“Interest”
shall have the meaning set forth in the JV Agreement.


 


“JV Exclusive
Field” means those Competencies specified as JV Competencies that
are not specified in Exhibit A as Zeiss Competencies or Cymer
Competencies.


 


“Know-How” means information or inventions not generally known
or available.


 


“Member”
shall mean Cymer or SMT, or any Affiliate of Cymer or SMT who is a Member (as
defined in the JV Agreement) of JV.


 


“Net Sales” means, with respect to any Party, the amount of
gross sales invoiced by such party or its Affiliates to third parties
(excluding any party hereto or its Affiliates) for Products, less deductions
for the following items which are included in the invoiced amounts and do not
exceed reasonable and customary amounts in the country in which such sale
occurred: (a) returns (including withdrawals and recalls),
(b) rebates, (c) volume discounts granted at the time of invoicing,
(d) sales taxes, value-added taxes and other taxes directly linked and
included in the gross sales amount. “Net
Sales” shall also include the amount or fair market value of all
other consideration received by a Party or its Affiliates (other than JV) with
respect to Products, whether such consideration is in cash, payment in kind,
exchange or another form.


 


“Non-Compete Period” shall have the meaning
set forth in the JV Agreement.


 


“Patents” mean all foreign and domestic patents, utility models
and patent applications (including all provisional, divisional, substitution,
continuation and continuation in-part applications, and all foreign
counterparts thereof).


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


3


 


A-6





















 


“Person” means
an individual, corporation, partnership, association, trust, limited liability
company or any other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.


 


“Products” means low temperature polysilicon tools for laser
induced crystallization for manufacturing flat panel displays, including
without limitation LCDs, SOGs and OLEDs, and any additional products listed in
Exhibit B as amended from time to time by mutual agreement of the Parties.


 


“Selling Party” shall
mean (a) the Triggering Party as defined in the meaning set forth in the
JV Agreement, (b) the Member that sells its Interest in the JV to the
other Member of the JV upon the other Member’s exercise of its right [. . . *** . . .] under the JV Agreement, or (c) the
Member that Transfers its Interest in the JV to a Permitted Transferee which is
not an Affiliate of such Member.  If the
Triggering Party under (a) or the selling or transferring Member under
(b) or (c) above is [. . . *** . . .] or an Affiliate of [. . . *** . . .], then the “Selling Party” shall, for
purposes of this definition, include [. . . *** . . .] and [. . . *** . . .] and their respective Affiliates.


 


“Supply
Agreement” means the Supply Agreement between JV and Cymer or the
Supply Agreement between JV and SMT or an Affiliate of SMT, each of even date
with this Agreement.


 


“Triggering Event” shall have the meaning
set forth in the JV Agreement.


 


“Zeiss Exclusive Fields” means those
Competencies specified in Exhibit A as Zeiss Competencies that are not
specified in Exhibit A as Cymer Competencies and are not specified as JV
Competencies.


 


(b)                                 Each
of the following terms is defined in the Section set forth opposite such
term:


 


	
  Term

  	
   

  	
  Section

  
	
  Agents

  	
   

  	
  Section 6.01

  
	
  Collaboration

  	
   

  	
  Recitals

  
	
  Effective
  Date

  	
   

  	
  Preamble

  
	
  JV Agreement

  	
   

  	
  Recitals

  
	
  Licensed
  Party

  	
   

  	
  Section 4.01

  
	
  Licensing
  Party

  	
   

  	
  Section 4.01

  
	
  [. . . *** . . .]
  Royalty Period

  	
   

  	
  Section 5.01(a)

  
	
  [. . . *** . . .]
  Royalty Rate

  	
   

  	
  Section 5.01(c)

  
	
  [. . . *** . . .]
  Royalty Period

  	
   

  	
  Section 5.01(b)

  
	
  [. . . *** . . .]
  Royalty Rate

  	
   

  	
  Section 5.01(c)

  
	
  Responsible
  Party

  	
   

  	
  Section 3.02(a)

  
	
  Shared
  Foreground Technology

  	
   

  	
  Section 2.01(b)

  
	
  Ships a
  Product

  	
   

  	
  Section 5.01(b)

  
	
  Solely Owned
  Foreground Technology

  	
   

  	
  Section 2.01(a)

  



 










*                 CONFIDENTIAL
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ARTICLE 2

OWNERSHIP OF TECHNOLOGY


 


Section 2.01 Ownership of Foreground Technology.


 


(a)   Solely Owned Foreground Technology.  Foreground Technology that is solely made,
conceived and reduced to practice by the employees or contractors of one Party,
or any of its respective Affiliates, and all intellectual property rights
therein, shall represent “Solely Owned
Foreground Technology” of such Party and shall be solely owned by
such Party.


 


(b)  Shared Foreground
Technology.  Foreground
Technology that is made, conceived or reduced to practice by at least one
employee or contractor of one Party or its Affiliates, on the one hand, and at
least one employee or contractor of another Party or its Affiliates, on the
other hand, and all intellectual property rights therein, shall represent “Shared Foreground Technology” and shall be
owned equally by such Parties. Except
for Patents contained in Shared Foreground Technology that are exclusively
licensed under the provisions of Article 4 and then only to the extent
limited by such exclusive license, each jointly owning Party may use
Shared Foreground Technology and grant any licenses to the Shared Foreground
Technology to third parties without the consent of the other Party and without
any obligation to account to or share any royalties or other proceeds resulting
from licenses with the other jointly owning Party.


 


Section 2.02.  Ownership
of Background Technology. 
Each Party and its Affiliates shall retain sole right, title and
interest to its Background Technology and this Agreement shall not confer to a
Party any intellectual property rights in the Background Technology of any
other Party or its Affiliates.  Other
than as expressly provided with respect to Disclosed Know-How, no license to
Background Technology is granted hereunder. 
Cymer and SMT each represent and warrant that, to the best of its
knowledge, it and its Affiliates
[. . . *** . . .] as of the Effective Date
[. . . *** . . .] with claims that would be directly infringed by a tool employing a beam generated by an excimer laser to induce
crystallization for Low Temperature Poly-Silicon processing for the manufacture
of flat panel displays (“Subject Tool”)
(excluding the [. . . *** . . .] to be contributed by Cymer to JV
pursuant to a Contribution Agreement of even date with this Agreement) but not
by a component, subassembly, or materials contained therein within the
Competency of Cymer or SMT, respectively. 
Cymer and SMT each agree and covenant that should any Patent issue in
the future on any currently pending patent applications owned or controlled by
such Party or any of its Affiliates, or any continuation or divisional of any
such pending patent application, that would be directly infringed by a Subject
Tool made or sold by JV but not by a component, subassemply or materials
contained therein within the Competency of Cymer or SMT,


 










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respectively, such Party will, for itself and on behalf of its
Affiliates, grant to JV a world-wide, non-transferable, non-sublicensable,
non-exclusive, royalty-free, perpetual, irrevocable license under such Patent
to make, have made, use, import, sell and offer for sale, lease and otherwise
transfer Subject Tools that would directly infringe such Patent.  For the avoidance of doubt, Subject Tool does
not include, and neither Party shall have any obligation to grant any license
under any claim in any Patent that would be infringed by, any component,
subassembly or materials used in a Subject Tool even if such component,
subassembly or materials have no substantial non-infringing use other than use
in a Subject Tool or would be deemed to contributorily infringe or induce
infringement of a Patent covering a Subject Tool.


 


Section 2.03  Employees and Contractors.  Each Party and its Affiliates shall have a
written agreement with each employee or contractor engaged in any development
activities related to and conducted as part of the Collaboration, or shall take
such other or additional steps as may be necessary under applicable law, to
secure ownership by such Party or its Affiliates of all Foreground Technology
made, conceived or reduced to practice by its employees or contractors in the
course of performance of the Collaboration. 
Without limiting the generality of the foregoing, any Party or its
Affiliates with employees in Germany will take at its expense all steps
necessary to claim full, unrestricted ownership of Foreground Technology made
by its employees that may be patentable and may result in a Patent under which
another Party has been granted an exclusive license under the provisions of
Section 4.02, provided that such other Party undertakes to file a patent
application therefor in Germany under the provisions of
Section 3.01(b) or Section 3.02. 
Each Party or its Affiliates shall be solely responsible for payment of
any remuneration payable to its employees or contractors in respect to Foreground
Technology.


 


ARTICLE 3

PROSECUTION AND ENFORCEMENT OF SHARED FOREGROUND TECHNOLOGY


 


Section 3.01.  Prosecution of Inventions
in Solely Owned Foreground Technology.


 


(a) The Party owning
Solely Owned Foreground Technology shall be entitled, but have no obligation to
file, prosecute and maintain the Patents claiming such inventions, except as
otherwise provided in Section 3.01(b).


 


(b) With respect to any invention contained in Solely Owned
Foreground Technology that may be patentable and may result in a Patent under which another Party has been
granted an exclusive license under the provisions of Section 4.02 (the “Exclusively Licensed Party”), such
Exclusively Licensed Party shall have the first right, but not the obligation,
of filing, prosecuting and maintaining the Patent claiming such invention.  At least forty-five (45) days prior to filing
an application disclosing or claiming Solely Owned Foreground 


 


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Technology that may be patentable and may
result in a Patent exclusively licensed to another Party under
Section 4.02, the owning Party will by notice request the Exclusively
Licensed Party to elect whether or not it will undertake the filing,
prosecuting and maintaining of such Patent.


 


(i)             If the Exclusively
Licensed Party notifies the owning Party within forty-five (45) days after such
request that it elects to undertake the filing, prosecution and maintenance of
such Patent, the Exclusively Licensed Party (x) shall take all commercially
reasonable efforts to prepare, file, prosecute and maintain such Patent on
behalf of the owning Party, and (y) shall be responsible for the expenses and
attorneys fees in connection therewith, reasonably consult with the owning
Party regarding such filing and prosecution efforts, keep the owning Party
reasonably informed of the prosecution (including by providing copies of all
patent applications, amendments and correspondence from U.S. and foreign patent
offices) so as to allow the owning Party a reasonable amount of time to review
such information, seek the comments of the owning Party on proposed
applications, amendments, and responses to office actions and make commercially
reasonable efforts to accommodate such comments of the owning Party.  The owning Party shall provide the
Exclusively Licensed Party with reasonable access to the inventors to assist
the Exclusively Licensed Party in preparing and prosecuting such Patent.


 


(ii)          If the Exclusively
Licensed Party notifies the owning Party in writing within such forty-five (45)
day period that it elects not to file such Patent or fails to respond within
such forty-five (45) day period, the owning Party shall have the right, but no
obligation, to proceed with the filing, prosecution and maintenance of the
patent application for such invention at its own expense.  If the owning Party undertakes such filing,
any license to such Patent granted under Section 4.02 shall become
non-exclusive.


 


(c) If the Exclusively Licensed Party has undertaken the filing,
prosecution and maintenance of a Patent pursuant
subsection (b) above, then within six (6) months from the filing
of the first application for such Patent it shall notify the owning Party in
writing in which additional jurisdictions the Exclusively Licensed Party
intends to file, prosecute and maintain such Patent.  With respect to the jurisdictions so notified
to the owning Party, the Exclusively Licensed Party and the owning Party shall
have the same obligations as with respect to the initial Patent filing pursuant
to subsection (b)(i) above.  In
addition, the owning Party then shall have the right, but no obligation, to
file, prosecute and maintain such Patent in any jurisdictions not so notified
to it by the Exclusively Licensed Party and any license to such Patent under
Section 4.02 shall become non-exclusive in such jurisdictions.


 


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(d)                                 If
the Exclusively Licensed Party has undertaken the filing, prosecution and
maintenance of a Patent pursuant to subsection (b) or (c) above
subsequently decides not to prosecute or maintain such Patent in any
jurisdiction, it shall notify the owning Party of that decision in writing at
least one hundred twenty (120) days before the Patent would lapse if not duly
prosecuted or maintained in such jurisdiction. 
The owning Party then shall have the right, but no obligation, to assume
such filing, prosecution or maintenance of the Patent in any such jurisdiction
from the Exclusively Licensed Party at its own expense, and any license to such
Patent under Section 4.02 shall become non-exclusive in any such
jurisdiction in which the owning Party assumes such Patent.


 


Section 3.02.  Prosecution of Inventions
in Shared Foreground Technology.


 


(a) (i) With respect to each invention within Shared
Foreground Technology that may be patentable, such invention shall be
considered by a joint committee to be established by the Parties consisting of
one representative from each Party owning such Shared Foreground Technology,
which shall determine in good faith which of the owning Parties (the “Responsible Party”) should prosecute the Patents claiming
such invention.  The Responsible Party
shall have the first right, but not the obligation, of filing, prosecuting and
maintaining the Patents claiming such invention on behalf of the owning
Parties, with expenses and attorney fees to be shared equally.  At least forty-five (45) days prior to filing
a patent application disclosing or claiming Shared Foreground Technology, the
Responsible Party will provide the other owning Party with written notice of
its intent.


 


(ii)          If the other owning
Party consents to such filing or fails to respond within such forty-five (45)
day period, the Responsible Party shall reasonably consult with the other
owning Party regarding such filing and prosecution efforts, keep the other
owning Party reasonably informed of the prosecution (including by providing
copies of all patent applications, amendments and correspondence from U.S. and
foreign patent offices) so as to allow the other owning Party a reasonable
amount of time to review such information, seek the comments of the other
owning Party on proposed applications, amendments, and responses to office
actions and make commercially reasonable efforts to accommodate such comments
of the other owning Party.


 


(iii)       If the other owning Party
notifies the Responsible Party in writing within such forty-five (45) day
period that it does not consent to such filing, the Responsible Party shall
have the right to proceed with the filing and prosecution of one or more patent
applications for such invention at its own expense and for its own
benefit.  If the Responsible Party
undertakes such filing and prosecution, the non-consenting owning Party shall
promptly assign all of its right, title and interest in and to such invention
and any intellectual property rights arising therefrom to the


 


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Responsible Party; provided
that, in such case the license granted under Section 4.02 to the
non-consenting owning Party shall not apply and the Responsible Party will
grant to the non-consenting owning Party and its Affiliates a worldwide, fully
paid up, [. . . *** . . .], non-transferable, non-sublicensable, non-exclusive, perpetual,
irrevocable license to make, have made, use, import, sell and offer for sale,
lease and otherwise transfer products using such invention and using any
intellectual property rights arising therefrom outside the Exclusive Field of
any Party other than the non-consenting owning Party.  To the extent such Patent is covered by one
or more of the Existing Cross License Agreements the Responsible Party agrees
to be bound by all applicable licenses, immunities, covenants and restrictions
set forth in such Existing Cross License Agreements.


 


(b)                                 (i) The
other owning Party may request that the Responsible Party take all necessary
actions to file and prosecute a patent application on any particular invention
within the Shared Foreground Technology on behalf of each owning Party, or
their respective Affiliates, and shall provide sixty (60) days notice prior to
any critical date if possible.  Upon such
request, the Responsible Party shall have thirty (30) days to inform the other
owning Party whether the Responsible Party will proceed with the requested
filing or prosecution, or if the Responsible Party will forego the same.


 


(ii)                                  If
the Responsible Party elects to proceed, it shall take all commercially
reasonable efforts to accomplish such filing and prosecution and proceed as set
forth in Section 3.02(a).  Within
six (6) months of the filing of the first application for such Patent it
shall notify the other owning Party in writing in which additional
jurisdictions the Responsible Party intends to file, prosecute and maintain
such Patent.  With respect to the
jurisdictions so notified by the Responsible Party, the Responsible Party and
the other owning Party shall have the same obligations as with respect to the
initial Patent filing.


 


(iii)                               If
the Responsible Party elects not to proceed within such thirty (30) day period
(or with respect to any additional jurisdictions in which the Responsible Party
does not notify its intention to file, prosecute and maintain), the other
owning Party shall have the right to proceed with the filing and prosecution of
one or more patent applications for such invention at its own expense and for its
own benefit.  If the other owning Party
undertakes such filing and prosecution, the Responsible Party shall promptly
assign all of its right, title and interest in and to such invention and any
intellectual property rights arising therefrom to the other owning Party (as a
whole if the Responsible Party elects not to proceed with an initial filing or
with respect to the non-notified additional jurisdictions in the case that the
Responsible Party elects to proceed with an initial filing); provided that, in such case the license granted under
Section 4.02 to the Responsible Party shall not apply (in all
jurisdictions if the Responsible Party elects not to proceed with an initial
filing or in the non-notified


 










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additional jurisdictions in the case that the
Responsible Party elects to proceed with an initial filing) and the other
owning Party will grant to the Responsible Party and its Affiliates a
worldwide, [. . . *** . . .],
[. . . *** . . .], non-transferable, non-sublicensable, non-exclusive, perpetual,
irrevocable license to make, have made, use, import, sell and offer for sale,
lease and otherwise transfer products using such invention and using any
intellectual property rights arising therefrom outside the Exclusive Field of
any Party other than the Responsible Party (in all jurisdictions if the
Responsible Party elects not to proceed with an initial filing or in the
non-notified additional jurisdictions in the case that the Responsible Party
elects to proceed with an initial filing). 
To the extent such Patent is covered by one or more of the Existing
Cross License Agreements the other owning Party agrees to be bound by all
applicable licenses, immunities, covenants and restrictions set forth in such
Existing Cross License Agreements.


 


(c)                                  If
the Responsible Party has undertaken the filing, prosecution and maintenance of
a Patent pursuant to subsection (a) or (b) above subsequently
decides not to prosecute or maintain such Patent in any jurisdiction, it shall
notify the other owning Party of that decision in writing at least one hundred
twenty (120) days before the Patent would lapse if not duly prosecuted or
maintained in such jurisdiction.


 


(d)                                 SMT,
Cymer and JV shall reasonably assist the other in the filing, prosecution and
maintenance of Patents under Section 3.02, including executing any
necessary powers of attorney.  Each of
SMT, Cymer and JV, and their respective Affiliates, as appropriate, shall
promptly execute any necessary documents or instruments in connection with any
assignments of its right, title and interest in and to any invention within the
Shared Foreground Technology required by this Section 3.02, and
intellectual property rights arising therefrom.


 


(e)                                  The
provisions of this Article 3 and of Article 2 are based on the
assumption that Shared Foreground Technology and the intellectual property rights
arising therefrom will be owned by
[. . . *** . . .] but not
[. . . *** . . .] or
[. . . *** . . .] of the Parties.  If the
case should arise that Shared Foreground Technology and intellectual property
rights arising therefrom are owned by [. . . *** . . .]
(or [. . . *** . . .]) Parties, the Parties will adapt and apply the provisions of
this Article 3 and Article 2 as appropriate to address such case.


 


Section 3.03.  Infringement of Patents in the
Shared Foreground Technology by Third Parties.


 


(a)                                  For
all joint Patents that are filed under Section 3.02(a)(ii) or
Section 3.02(b)(ii), the owning Parties shall proceed as set forth in
subsections (b) and (c) below with respect to such third party
infringement.  As to any Patent in the
Shared Foreground Technology which is filed under
Section 3.02(a)(iii) or


 










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Section 3.02(b)(iii),
the Party that solely owns such Patent shall have sole rights, at its sole
discretion, to enforce such patent.


 


(b)                                 Each
owning Party must consent in advance to either owning Party or its Affiliates
bringing an action against any person or entity directly or contributorily
infringing a Patent in the Shared Foreground Technology.  Notwithstanding the foregoing, in no event
shall either owning Party or its Affiliates be obligated to participate or
otherwise cooperate, in any such action against a third party infringer.  For the avoidance of doubt, but without
limiting the foregoing sentence, neither owning Party shall have any obligation
to notify the other owning Party of any alleged or threatened infringement, to
be named as a party in any such action, or to provide testimony in any such
action.


 


(c)                                  Regardless
of which owning Party brings the action, any recovery obtained by settlement or
otherwise in the action attributable to direct or contributory infringement of
a Patent in Shared Foreground Technology shall be distributed as follows:  (i) any recovery shall be applied first
to cover the reasonable expenses (including counsel fees) incurred by the
owning Parties in such action, and (ii) thereafter, the net recovery shall
be retained solely by the owning Party named as party in such action (if only
one owning Party is named as a party in such action) or shared equally between
the owning Parties (if both owning Parties are named as parties in such
action).


 


Section 3.04                                Transfers Subject to Existing License Agreement.  The Parties acknowledge and agree that any
Patent exclusively licensed, transferred or assigned from one Party to another
Party under the terms of this Section 3 or other provisions of this
Agreement remains subject to any applicable Existing Cross License Agreement of
the transferring or assigning Party.


 


ARTICLE 4

LICENSES


 


Section 4.01. Non-Exclusive Licenses for Competencies.  Without limiting any other license granted in this Article 4, each
Party, on behalf of itself and its Affiliates, hereby grants each other Party
and its Affiliates (in each case, the licensing Party and its Affiliates being
referred to as the “4.01  Licensing Party” and
the licensed Party and its Affiliates being referred to as the “4.01  Licensed Party”) a worldwide, non-exclusive,
non-transferable, non-sublicensable, perpetual, irrevocable, paid-up and
royalty-free license under any claims related to any Competency of the 4.01
Licensed Party in the Patents in the Solely Owned Foreground Technology owned
by the 4.01 Licensing Party or its Affiliates to make, have made, use, import,
sell and offer for sale, lease and otherwise transfer any products or portions
of products solely in the 4.01 Licensed Party’s Competencies.


 


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Section 4.02  Exclusive Licenses in
Exclusive Fields.  Without
limiting any other licenses granted in this Article 4, each Party, on
behalf of itself and its Affiliates, hereby grants each other Party and its
Affiliates (in each case , the licensing Party and its Affiliates being
referred to as the “4.02 Licensing Party” and the
licensed Party and its Affiliates being referred to as the “4.02 Licensed Party”) a worldwide,
exclusive (even as to the 4.02 Licensing Party, except as provided in
Section 4.05, but subject to any Existing Cross License Agreements),
non-transferable, non-sublicensable, perpetual, irrevocable,
[. . . *** . . .] and
[. . . *** . . .] license under any claims related to any Exclusive Field of the
4.02 Licensed Party in the Patents contained in Solely Owned Foreground
Technology or Shared Foreground Technology owned by the 4.02 Licensing Party to
make, have made, use, import, sell and offer for sale, lease and otherwise
transfer any products or portions of products solely in the 4.02 Licensed
Party’s Exclusive Fields.


 


Section 4.03  License to JV of Selling Party’s Foreground Technology.


 


(a)                                  Effective upon the occurrence of a
Continuation Event, the Selling Party, on behalf of itself and its
Affiliates, hereby grants JV and its
Affiliates (i) a worldwide, non-transferable, non-sublicensable,
perpetual, irrevocable license under the Patents contained in all Foreground
Technology owned by the Selling Party or its Affiliates to make, have made,
use, import, sell and offer for sale, lease and otherwise transfer Products and
components for use in Products, and (ii) a worldwide, non-transferable, non-sublicensable, perpetual,
irrevocable license to use Disclosed Know-How owned by the Selling Party or its
Affiliates to make, have made, use, import, sell and offer for sale, lease and
otherwise transfer Products and components for use in Products.


 


(b)                                 The
licenses granted in subsection (a) shall be exclusive (even as to the
Selling Party and its Affiliates but subject to any Existing Cross License
Agreements) during the Non-Compete Period and non-exclusive thereafter.


 


Section 4.04.  License to Continuing Party of
Selling Party’s Foreground Technology.  (a) Effective upon the occurrence of a Continuation Event, the Selling
Party, on behalf of itself and its Affiliates, hereby grants the Continuing Party and its Affiliates (i) a worldwide,
non-transferable, non-sublicensable, perpetual, irrevocable license under the
Patents contained in all Foreground Technology owned by the Selling Party or
its Affiliates to make, have made, use, import, sell and offer for sale, lease
and otherwise transfer Products and components for use in Products, and
(ii) a worldwide,
non-transferable, non-sublicensable, perpetual, irrevocable license to use
Disclosed Know-How owned by the Selling Party or its Affiliates to make, have
made, use, import, sell and offer for sale, lease and otherwise transfer
Products and components for use in Products.


 


(b)                                 The
licenses granted in subsection (a) shall be exclusive (even as to the
Selling Party and its Affiliates but subject to any Existing Cross License
Agreements) during the Non-Compete Period and non-exclusive thereafter.


 










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Section 4.05
Limitation of Exclusivity of License to Selling
Party of Foreground Technology of Continuing Party.   Effective upon the occurrence of a
Continuation Event, any license granted to the Selling Party in
Section 4.02 under the Patents contained in Foreground Technology owned by
the Continuing Party or JV, or their Affiliates, shall become non-exclusive as
to the Continuing Party and JV for Products and components for use in
Products.  That is to say, for the
avoidance of doubt, the Continuing Party and, if so licensed by the Continuing Party,
JV shall be entitled to make, have made, use, import, sell, offer for sale,
lease and otherwise transfer Products and components for use in Products under
Patents contained in Foreground Technology owned by the Continuing Party or its
Affiliates and licensed to the Selling Party under Section 4.02.


 


Section 4.06 License to Selling Party of JV’s Foreground Technology.  Without
limiting any other licenses granted in this Article 4, effective upon the termination of the
Non-Compete Period, JV, on behalf of itself and its Affiliates, hereby grants the Selling Party and its
Affiliates a worldwide, non-transferable, non-sublicensable,
non-exclusive, [. . . *** . . .], perpetual, irrevocable license
under the Patents contained in Solely Owned Foreground Technology owned by JV
to make, have made, use, import, sell and offer for sale, lease and otherwise
transfer Products.  The Selling Party
shall have the option to add the Cymer Contributed Patents to the subject
matter of the license granted under this Section 4.06, subject to payment
to the Continuing Party of an amount equal to the portion of the purchase price
paid by the Continuing Party’s attributable to the Cymer Contributed
Patents.  To exercise this option, the
Selling Party must provide JV with notice of its election at least six
(6) months prior to the expiration of the Non-Compete Period and pay any
amount required under this Section 4.06.


 


Section 4.07  No Right to Prosecute or
Enforce.


 


(a)  Except as otherwise provided in
Section 3.01 or 3.02, the licenses granted pursuant to this Article 4
do not (i) include any right to file, prosecute or maintain
Patents for any of the licensed Foreground Technology or Shared Foreground
Technology or (ii) include any right to require, or impose or imply any
obligation on, the licensing party to do so.


 


(b)  The licenses granted
pursuant to this Article 4 do not (i) include any right to
enforce any licensed Foreground Technology or (ii) include any right to
require, or impose or imply any obligation on, the licensing party to do
so.  Notwithstanding the foregoing, the
licensee shall have the right to enforce the Patents licensed under
Section 4.02 and, during the Non-Compete Period, under Sections 4.03 and
4.04, against the Party granting the licenses and its Affiliates, and, to the
extent permitted by applicable law, against third parties.


 










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ARTICLE 5

ROYALTIES


 


Section 5.01.  Royalties.


 


(a)  During the
[. . . *** . . .] Period.  During the period beginning on the [. . . *** . . .] and ending on the [. . . *** . . .] of the [. . . *** . . .] (the [. . . *** . . .]), the JV shall pay royalties to the
Selling Party on the Net Sales of Products by the JV or its Affiliates and the
Continuing Party shall pay royalties to the Selling Party on the Net Sales of
Products by the Continuing Party or its Affiliates (excluding Products included
in the Net Sales of the JV or its Affiliates), at the
[. . . *** . . .] Royalty Rate; provided, however, that no more than one royalty
shall be payable with respect to any Product.


 


(b)  After the
[. . . *** . . .] Period. 
During the period beginning on the [. . . *** . . .] the [. . . *** . . .] and ending on the [. . . *** . . .] of (i) the date on which the Selling
Party or any of its Affiliates [. . . *** . . .] (as defined below) or (ii) [. . . *** . . .]
of the [. . . *** . . .] (the [. . . *** . . .]), the JV shall pay royalties to the
Selling Party on the Net Sales of Products by the JV or its Affiliates, and the
Continuing Party shall pay royalties to the Selling Party on the Net Sales of
Products by the Continuing Party or its Affiliates (excluding Products included
within the Net Sales of Products by the JV or its Affiliates), at the
[. . . *** . . .] Royalty Rate; provided, however, that no more than one royalty
shall be payable with respect to any Product. 
After the [. . . *** . . .] Royalty Period, the licenses set forth in
Sections 4.03 and 4.04 shall be [. . . *** . . .] and [. . . *** . . .].  For
purposes of this Section 5.01(b), “Ships
a Product” means that the Selling Party or any of its Affiliates
sells or otherwise delivers to a third party or specifically (and not as part
of a general license agreement) licenses any third party to sell or otherwise
deliver, whether for revenue, demonstration, testing or any other purposes, a
Product or a component used or designed for use in a Product.


 


(c)  Royalty Rates.  The [. . . *** . . .] Royalty Rate shall be
[. . . *** . . .] percent ([. . . *** . . .]%) and
the [. . . *** . . .] Royalty Rate shall be
[. . . *** . . .] percent ([. . . *** . . .]%).


 


Section 5.02.  Reporting.  JV or the Continuing Party shall
make written reports to the Selling Party within 30 days after the first day of
each January, April, July and October, if it has Net Sales of Product sold
or otherwise disposed of during the preceding three month period on which a
royalty is payable as provided in Section 5.01.  Such report shall state the Net Sales of
Product sold or otherwise disposed of during the preceding
[. . . *** . . .] month period by such Party and the royalty that is payable as
provided in Section 5.01.  The
Selling Party shall make a written report to the JV and the Continuing Party
within 10 days after it Ships a Product. 
If the Selling Party is [. . . *** . . .] or an Affiliate of
[. . . *** . . .], the reports shall be made and any payments shall be sent to
[. . . *** . . .]


 










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Section 5.03. Records Retention.  JV and the Continuing Party shall
retain records and supporting documentation sufficient to document its Net
Sales calculations for a
minimum of [. . . *** . . .] following the
[. . . *** . . .].


 


Section 5.04.  Taxes.  JV or the Continuing Party, as the
case may be, is authorized to withhold from payment to the Selling Party and to
pay over to any federal, cantonal, communal or foreign government any amounts
which it reasonably determines may be required to be so withheld pursuant to
the THL or any provisions of any other federal, cantonal, communal or foreign
law.  All amounts withheld pursuant to the THL or any provision of any
federal, cantonal, communal or foreign tax law with respect to any payment to
the Selling Party shall be treated as amounts paid to the Selling Party pursuant
to this Article for all purposes under this Agreement.


 


Section 5.05.  Audit.  Each Party shall keep records
showing the sales or other disposition of products sold or otherwise disposed
of under the licenses herein granted in sufficient detail to enable the
royalties payable hereunder by such Party to be determined, and further agrees
to permit its books and records to be examined from time to time to the extent
necessary to verify the reports provided for in Section 5.02, such
examination to be made at the expense of the other Party by a certified public
accountant appointed by that Party, who shall be acceptable to the Party
subject to the examination. However, if such an audit reveals that the amount
paid by the Party subject to the examination for the period covered by such
audit was more than [. . . *** . . .] percent
([. . . *** . . .]%) less than the amount that
such Party should have been required to pay under this Article 5 for such
period, the Party subject to the examination shall bear the costs of such
audit.


 


ARTICLE 6

TERM


 


Section 6.01.  Term.  This Agreement shall commence as of the
Effective Date and shall continue in force until the invalidity or expiration
of all Patents contained within the Foreground Technology.  This Agreement may not be terminated for
breach.


 


Section 6.02.  Survival.  The duties and obligations of the
parties under Articles 1, 2, 5, 6 and 7 of this Agreement shall survive
termination or expiration of this Agreement.


 


ARTICLE 7

MISCELLANEOUS


 


Section 7.01.  Assignment.  No Party shall assign, or grant any right
under any of its Foreground Technology unless such assignment or grant is made 


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


15


 


A-18





















 


subject to the
terms and conditions of this Agreement. 
This Agreement may not be assigned or otherwise transferred by any
Party, in whole or in part, whether voluntarily or by operation of law
(including by way of sale of assets, merger or consolidation) other than to a
person that is the successor to substantially all of the assets of such Party
related to this Agreement and who executes a written agreement of assumption by
which it agrees to be bound hereby.


 


Section 7.02.  Independent Contractors.  The relationship of the Parties established
by this Agreement is that of independent contractors, and nothing contained in
this Agreement shall be construed or implied to give any Party the power to
direct or control the day-to-day activities of any other Party, nor shall any
Party have the right or authority to assume, create or incur any third party
liability or obligation of any kind, express or implied, against or in the name
of or on behalf of another Party except as expressly set forth in this
Agreement.


 


Section 7.03.  Severability.  In the event that any provision of this
Agreement conflicts with governing law or if any provision is held to be null,
void or otherwise ineffective or invalid by a court of competent jurisdiction,
(a) such provision shall be deemed to be restated to reflect as nearly as
possible the original intentions of the Parties in accordance with applicable
law, and (b) the remaining terms, provisions, covenants and restrictions
of this Agreement shall remain in full force and effect.  This Agreement has been negotiated by the
Parties and their respective counsel and will be interpreted fairly in
accordance with its terms and without any strict construction in favor of or
against any Party.


 


Section 7.04.  Entire Agreement.  This Agreement is an integrated document and
all attachments hereto and incorporated herein constitute the entire, final,
complete and exclusive agreement between the Parties and supersede all previous
agreements, intentions, or representations, oral or written, relating to this
Agreement.  This Agreement may not be
modified or amended except in a writing signed by a duly authorized
representative of each Party.  Both
Parties acknowledge having read the terms and conditions set forth in this
Agreement and all attachments hereto, understand all terms and conditions, and
agree to be bound hereby.


 


Section 7.05.  No Waiver.  The failure of any Party to enforce at any
time any of the provisions of this Agreement shall not be deemed to be a waiver
of the right of any Party thereafter to enforce any such provisions.


 


Section 7.06.  Notices.  Any notice or other communication
required or permitted to be made or given to either Party hereto pursuant to
this Agreement shall be sent to such Party by courier or by registered airmail
(except that registered or certified mail may be used where delivery is in the
same country as mailing), postage prepaid, addressed to it at its address set
forth below, or to such other address as it shall designate by written notice
given to the other party, and shall be deemed to have been made or given on the
date of receipt and shall be addressed as follows:


 


16


 


A-19





















 


if to Cymer:


 


Cymer, Inc.


17075
Thornmint Court


San Diego,
California USA 92127


Attn: Senior
Vice President, Chief Intellectual Property Counsel


 


if to SMT:


 


Carl Zeiss SMT
AG


Carl-Zeiss-Strasse
22


73447
Oberkochen, Germany


Attention:
Dr. Hermann Gerlinger


Facsimile No:
[. . . *** . . .]


Telephone No.:
[. . . *** . . .]


 


if to JV:


TCZ GmbH


 


 


Attn: Chief
Executive Officer


 


Section 7.07.  Counterparts.  This Agreement may be executed in
counterparts, each of which so executed will be deemed to be an original and
such counterparts together will constitute one and the same agreement.  This Agreement shall become effective when
each Party hereto shall have received a counterpart hereof signed by all of the
other Parties hereto.  Until and unless
each Party has received a counterpart hereof signed by the other Party hereto,
this Agreement shall have no effect and no Party shall have any right or
obligation hereunder (whether by virtue of any other oral or written agreement
or other communication).


 


Section 7.08.  Amendments.  Any provision of this Agreement
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed, in the case of an amendment, by each Party to this
Agreement, or in the case of a waiver, by the Party against whom the waiver is
to be effective.


 


Section 7.09.  Expenses.  Except as otherwise provided
herein, all costs and expenses incurred in connection with this Agreement shall
be paid by the Party incurring such cost or expense.


 


Section 7.10.  Limitation Of Liability.  IN NO EVENT SHALL ANY PARTY BE LIABLE TO THE
OTHER FOR LOST PROFITS OF THE OTHER PARTY OR ANY CONSEQUENTIAL, SPECIAL,
PUNITIVE, INCIDENTAL OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, 


 










*                 CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


17


 


A-20





















 


HOWEVER CAUSED
AND ON ANY THEORY OF LIABILITY, EXCEPT FOR GROSS NEGLIGENCE OR INTENTIONAL
MISCONDUCT.


 


Section 7.11.  Governing Law.  This Agreement shall be governed by and construed in accordance
with the law of the [. . . *** . . .], without
regard to the conflicts of law rules of such state.


 


Section 7.12  Dispute
Resolution; Arbitration.  Any dispute, controversy or claim
arising out of or in connection with this Agreement or the alleged breach,
termination or invalidity thereof that is not settled by the dispute resolution
process set forth in Section 12.09(a) of the JV Agreement or
otherwise by the joint agreement of the Parties shall be finally settled under
Rules of Arbitration of the International Chamber of Commerce by three
arbitrators appointed in accordance with the said Rules.  Unless otherwise agreed by the Parties, such
arbitration shall take place in [. . . *** . . .].  Any
award rendered by the arbitrators will be final and binding on the parties, and
judgment upon the award may be entered in the
[. . . *** . . .], or any other court having jurisdiction over the award or
having jurisdiction over the parties or their assets.  The arbitration agreement contained in this
Section 12.09 will not be construed to deprive any court of its
jurisdiction to grant provisional relief (including by injunction or order of
attachment) in aid of arbitration proceedings or enforcement of an award.


 


Section 7.13.  WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


 


Section 7.14.  Third Party Beneficiaries.  No provision of this Agreement is
intended to confer upon any person other than the Parties hereto any rights or
remedies hereunder.


 


Section 7.15.  Representation and Warranty. 
[. . . *** . . .] represents and warrants
that all right, title and interest in and to Foreground Technology conceived or
reduced to practice by [. . . *** . . .] or any Person under the control of
[. . . *** . . .] has been assigned by [. . . *** . . .] to and will be owned by
[. . . *** . . .], and that [. . . *** . . .] has obtained all rights from
[. . . *** . . .] to fully perform its obligations under this Agreement.


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


18


 


A-21





















 


IN WITNESS WHEREOF, the parties
hereto have caused this Agreement to be duly signed and effective as of the
Effective Date.


 


Accepted and agreed to:


 


	
  CYMER, INC.

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


 


	
  CARL ZEISS SMT AG

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
  Title:

  	
   

  



 


 


	
  TCZ GMBH

  
	
   

  
	
   

  
	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


19


 


A-22










 













 


Exhibit A


 


Competencies


 


1.              Definitions


 


For purposes
of this Exhibit A:


 


“[. . . *** . . .]” means [. . . *** . . .] based on [. . . *** . . .] for [. . . *** . . .] and [. . . *** . . .] a [. . . *** . . .] and
[. . . *** . . .].


 


“[. . . *** . . .]” means [. . . *** . . .] for [. . . *** . . .]
, [. . . *** . . .], [. . . *** . . .]
([. . . *** . . .]),
[. . . *** . . .] (which means [. . . *** . . .] a [. . . *** . . .] to a [. . . *** . . .] with a [. . . *** . . .] and [. . . *** . . .])
and [. . . *** . . .] a [. . . *** . . .] and [. . . *** . . .].


 


“[. . . *** . . .]”
means [. . . *** . . .] for [. . . *** . . .], including without limitation, [. . . *** . . .], [. . . *** . . .], [. . . *** . . .], [. . . *** . . .],
[. . . *** . . .], [. . . *** . . .],
[. . . *** . . .], a [. . . *** . . .] by a [. . . *** . . .] or a different [. . . *** . . .] to provide a [. . . *** . . .] and [. . . *** . . .] of [. . . *** . . .] at a
[. . . *** . . .].


 


“[. . . *** . . .]” means [. . . *** . . .] for [. . . *** . . .].


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


20


 


A-23





















 


2.              Cymer Competencies


 


General Competencies:


•                  [. . . *** . . .] and [. . . *** . . .] with [. . . *** . . .] such as [. . . *** . . .], [. . . *** . . .], [. . . *** . . .], [. . . *** . . .]
and [. . . *** . . .].


•                  [. . . *** . . .] – [. . . *** . . .], and [. . . *** . . .].


•                  [. . . *** . . .] – [. . . *** . . .] ([. . . *** . . .])
[. . . *** . . .].


•                  [. . . *** . . .]


•                  [. . . *** . . .], but limited to applications in [. . . *** . . .] or [. . . *** . . .] at all
[. . . *** . . .]: (i) [. . . *** . . .]
and [. . . *** . . .], (ii) [. . . *** . . .], (iii) methods for [. . . *** . . .]
and [. . . *** . . .] of [. . . *** . . .], (iv) [. . . *** . . .], (v) [. . . *** . . .]
within the [. . . *** . . .], (vi) [. . . *** . . .]
and [. . . *** . . .] and [. . . *** . . .] in the [. . . *** . . .] of the [. . . *** . . .] between [. . . *** . . .] and [. . . *** . . .] and between [. . . *** . . .] and [. . . *** . . .], based on [. . . *** . . .] mounted on
[. . . *** . . .], (vii) [. . . *** . . .], [. . . *** . . .]
([. . . *** . . .]) [. . . *** . . .]
to process  [. . . *** . . .], (viii) [. . . *** . . .], [. . . *** . . .]
to measure the [. . . *** . . .] properties, (ix) [. . . *** . . .].


 


Specific
responsibilities and competencies within the Collaboration:


•                  [. . . *** . . .], including [. . . *** . . .] ([. . . *** . . .])


•                  Within the [. . . *** . . .]: [. . . *** . . .] ([. . . *** . . .]) and [. . . *** . . .] ([. . . *** . . .])
[. . . *** . . .].


•                  [. . . *** . . .], including (i) [. . . *** . . .],
(ii) [. . . *** . . .], (iii) [. . . *** . . .]
and [. . . *** . . .] with [. . . *** . . .], and (iv) [. . . *** . . .] of [. . . *** . . .] ([. . . *** . . .]
itself is [. . . *** . . .] competency), (v) various [. . . *** . . .] including, [. . . *** . . .] and [. . . *** . . .] and (vi) [. . . *** . . .].


•                  [. . . *** . . .], including (i) [. . . *** . . .]
and [. . . *** . . .], (ii) [. . . *** . . .]
including [. . . *** . . .], and (iii) [. . . *** . . .].


•                  [. . . *** . . .].


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


21


 


A-24





















 


3.              Zeiss
Competencies


 


General Competencies:


•                  [. . . *** . . .], which means (i) [. . . *** . . .], [. . . *** . . .] and [. . . *** . . .], including without limitation [. . . *** . . .], [. . . *** . . .], [. . . *** . . .]
and [. . . *** . . .] for [. . . *** . . .], [. . . *** . . .] and [. . . *** . . .] and (ii) [. . . *** . . .], [. . . *** . . .] and [. . . *** . . .] for [. . . *** . . .], [. . . *** . . .], [. . . *** . . .], [. . . *** . . .], [. . . *** . . .], [. . . *** . . .] and [. . . *** . . .] of such [. . . *** . . .], [. . . *** . . .] and [. . . *** . . .].


•                  [. . . *** . . .] and [. . . *** . . .] which means (i) [. . . *** . . .]
and [. . . *** . . .] or [. . . *** . . .] including [. . . *** . . .] and [. . . *** . . .] and (ii) [. . . *** . . .], [. . . *** . . .]
and [. . . *** . . .] for [. . . *** . . .], [. . . *** . . .], [. . . *** . . .], [. . . *** . . .], [. . . *** . . .], [. . . *** . . .], [. . . *** . . .]
and [. . . *** . . .] of such [. . . *** . . .] and [. . . *** . . .].


•                  [. . . *** . . .].


 


Specific
responsibilities and competencies within the Collaboration:


•                  [. . . *** . . .], including (i) [. . . *** . . .]
and [. . . *** . . .], (ii) [. . . *** . . .] ([. . . *** . . .]) & [. . . *** . . .], (iii) [. . . *** . . .] ([. . . *** . . .]), (iv) [. . . *** . . .]
and [. . . *** . . .], (v) [. . . *** . . .], (vi) [. . . *** . . .], (vii) [. . . *** . . .], (viii) [. . . *** . . .], (ix) [. . . *** . . .] ([. . . *** . . .]), and (x) [. . . *** . . .]
of [. . . *** . . .] ([. . . *** . . .]) & [. . . *** . . .] ([. . . *** . . .]) [. . . *** . . .] ([. . . *** . . .] & [. . . *** . . .] itself is [. . . *** . . .] competency).


•                  [. . . *** . . .], including (i) [. . . *** . . .], (ii) [. . . *** . . .], [. . . *** . . .], and [. . . *** . . .], and (iii) [. . . *** . . .]. [. . . *** . . .]
within [. . . *** . . .].


•                  [. . . *** . . .]
for [. . . *** . . .] and [. . . *** . . .].


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


22


 


A-25





















 


Exhibit B


 


Additional Products


 


None


 


23





















 


EXHIBIT B


 


Form of
Contribution Agreement


 





















 


CONTRIBUTION
AGREEMENT


 


This Contribution Agreement (this “Agreement”) dated as of                                         ,
2005 (the “Effective Date”), is
entered into by and between Cymer, Inc., a Nevada corporation (“Cymer”), and TCZ GmbH, a Swiss limited
liability company (“JV”).  Cymer and JV are each a “Party” and together constitute the “Parties” to this Agreement.


 


RECITALS:


 


A.            Cymer and Carl Zeiss
Laser Optics Beteilungsgesellschaft mbH (“Zeiss LOB”)
formed JV pursuant to a Joint Venture Agreement dated July 15, 2005 (the “JV Agreement”) to collaborate to develop, integrate, market,
sell and support tools employing a beam generated by an excimer laser to induce
crystallization for Low Temperature Poly-Silicon (LTPS) processing for the
manufacture of flat panel displays, including LCDs, LCD-SOGs and OLEDs, to
engage in related application development and to search for other business
opportunities for process tools for the manufacture of flat panel displays as
described in the JV Agreement.


 


B.            Cymer owns the
Contributed Intellectual Property (as hereinafter defined), and Cymer desires
to contribute the Contributed Intellectual Property to the JV as additional
capital surplus consideration for Cymer’s Percentage Interest in the JV.


 


NOW, THEREFORE, in
consideration of the foregoing recitals and the mutual promises hereinafter set
forth, the parties hereto agree as follows:


 


1.                                      Contribution
of Assets; Related Transactions


 


1.1          Contribution
by Cymer.  As
additional capital surplus consideration for Cymer’s Percentage Interest in the
JV, Cymer shall contribute, assign, transfer, convey and deliver to the JV, and
the JV shall accept and acquire from Cymer, at the Closing (as defined in Section 1.3
below), all of Cymer’s right, title and interest in and to the assets listed in
Exhibit A hereto (“Contributed Intellectual Property”), free and clear of any
encumbrances other than any Existing Cross License Agreement (as defined in the
Intellectual Property Agreement among Cymer, JV, Carl Zeiss SMT AG and Carl
Zeiss Industrielle Messtechnik GmbH of even date herewith), on the terms and
subject to the conditions set forth in this Agreement (the “Intellectual Property Contribution”).


 


1.2          Value
of Contributions.  For purposes of Cymer’s capital surplus
contribution to JV, the parties stipulate and agree that the Intellectual
Property Contribution has a value of U.S.$[. . . *** . . .].


 


1.3          Closing.  The Intellectual
Property Contribution set forth in Section 1.1
above, shall take place in accordance with the JV Agreement at the
Closing as set forth and defined in the JV Agreement (the “Closing”) At
the Closing, Cymer shall execute and deliver to the JV such bills of sale,
endorsements, assignments and other documents as may (in the reasonable
judgment of the JV) be necessary or appropriate to assign, transfer, convey and
deliver to the JV


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


B-1





















 


all of Cymer’s right, title and interest in and to the Contributed
Intellectual Property free and clear of any encumbrances other than any Existing
Cross License Agreement (as defined in the Intellectual Property Agreement
among Cymer, JV, Carl Zeiss SMT AG and Carl Zeiss Industrielle Messtechnik GmbH
of even date herewith).  JV acknowledges
and agrees that the Contributed Intellectual Property remains subject to any
applicable Existing Cross License Agreement of Cymer.


 


2.                                      Conditions
to Closing.


 


The parties’
obligations to effect the Intellectual Property Contribution and to consummate
the transactions contemplated hereby at the Closing and, in Cymer’s case, to
make its surplus capital contributions for Cymer’s Percentage Interest in the
JV, are subject to the consummation of the transactions contemplated under and
pursuant to the JV Agreement.


 


3.                                      Miscellaneous.


 


3.1          Definitions.  Except as otherwise defined herein,
capitalized terms used herein shall have the same meanings attributed to them
as in the JV Agreement.


 


3.2          Notices.  All
notices, requests and other communications to any party or to the Parties
hereto shall be in writing (including facsimile or similar writing) and shall
be given in conformance with Section 12.01 of the JV Agreement.


 


3.3          Governing
Law; Jurisdiction; Waiver of Jury Trial; Dispute Resolution; Arbitration.  This Agreement shall give effect to and shall
conform with Sections 12.07, 12.08, 12.09, 12.10 of the JV Agreement and such
sections shall be incorporated by reference and applied to this Agreement mutatis mutandis.


 


3.4          Entire
Agreement.  This
Agreement together, with the JV Agreement and the Exhibits hereto and thereto,
and any documents referred to herein or therein, constitutes the entire
agreement of the Parties with respect to the subject matter hereof.  Any references in this Agreement to
provisions in the Exhibits to this Agreement are intended for clarification
only, and in the event of any inconsistency, the provisions of the Exhibits
shall govern.


 


3.5          Severability.  If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party.  Upon such a determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.


 


2.


 


B-2





















 


3.6          Amendment
and Waiver.


 


(a)           Any provision
of this Agreement may be amended or waived if, and only if, such amendment or
waiver is in writing and signed, in the case of an amendment, by each Party, or
in the case of a waiver, by the Party against whom the waiver is to be
effective.


 


(b)           No failure or
delay by any Party in exercising any right, power or privilege hereunder shall
operate as a waiver thereof nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege.  The rights
and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.


 


3.7          Headings.  Headings are for ease of reference only and
shall not form a part of this Agreement.


 


3.8          Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.


 


IN WITNESS WHEREOF, the parties hereto have executed this Contribution Agreement as of
the date set forth in the first paragraph hereof.


 


	
   

  	
  TCZ GmbH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CYMER, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


3.


 


B-3





















 


EXHIBIT A


 


CONTRIBUTED
INTELLECTUAL PROPERTY


 


The following [. . . *** . .
..], and any [. . . *** . . .], and
any [. . . *** . . .], and any [. . . *** . . .], [. . . *** . . .],
[. . . *** . . .] or [. . . *** . . .] thereof:


 


[. . . *** . . .]


 


[. . . *** . . .]


 


[. . . *** . . .]


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


1.


 


B-4





















 


EXHIBIT C


 


Form of
Supply Agreement


 





















 


SUPPLY
AGREEMENT


 


dated
as of                                           ,
2005


 


between


 


TCZ
GMBH


 


and


 


[Supplier]


 


C-1





















 


	
   

  	
  ARTICLE 1

  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1.01

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 2

  TERM OF AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 2.01

  	
  Term of Agreement

  	
  5

  
	
  Section 2.02

  	
  Additional Term after Continuation Event

  	
  5

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 3

  SCOPE OF AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 3.01

  	
  General

  	
  5

  
	
  Section 3.02

  	
  Exclusivity

  	
  6

  
	
  Section 3.03

  	
  Research and Development Effort

  	
  6

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 4

  PRODUCTS AND CHANGES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 4.01

  	
  Products

  	
  6

  
	
  Section 4.02

  	
  Change at Supplier’s Request

  	
  6

  
	
  Section 4.03

  	
  Change at JV’s Request

  	
  7

  
	
  Section 4.04

  	
  Emergency Changes

  	
  7

  
	
  Section 4.05

  	
  Impact on Part Numbers

  	
  7

  
	
  Section 4.06

  	
  Impact on Open Purchase Orders

  	
  7

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 5

  QUALITY AND INSPECTION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 5.01

  	
  Specification Requirements

  	
  8

  
	
  Section 5.02

  	
  ISO 9000 Certification, Documentation and
  Inspection

  	
  8

  
	
  Section 5.03

  	
  Agency Approvals

  	
  8

  
	
  Section 5.04

  	
  Quality Tracking

  	
  9

  
	
  Section 5.05

  	
  Serialization

  	
  9

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 6

  PRICING

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 6.01

  	
  Cost Model And Prices

  	
  9

  
	
  Section 6.02

  	
  Currency

  	
  10

  
	
  Section 6.03

  	
  Taxes

  	
  10

  
	
  Section 6.04

  	
  Audit
  Rights

  	
  10

  



 


i


 


C-2





















 


	
   

  	
  ARTICLE 7

  PLANNING, ORDERS, AND ADJUSTMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 7.01

  	
  Planning

  	
  11

  
	
  Section 7.02

  	
  Purchase Orders

  	
  11

  
	
  Section 7.03

  	
  Acceptance of Purchase Orders

  	
  11

  
	
  Section 7.04

  	
  Rescheduling of Purchase Orders

  	
  12

  
	
  Section 7.05

  	
  Inventory Planning

  	
  12

  
	
  Section 7.06

  	
  Cancellation
  of Purchase Orders

  	
  12

  
	
  Section 7.07

  	
  Excess and Obsolete Material

  	
  12

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 8

  INVENTORY PLANNING

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 8.01

  	
  Procurement of Materials

  	
  12

  
	
  Section 8.02

  	
  Quarterly BTR

  	
  13

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 9

  DELIVERY; CARRIER; TITLE; RISK OF LOSS; AND ACCEPTANCE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 9.01

  	
  Delivery

  	
  13

  
	
  Section 9.02

  	
  Packaging and Shipping

  	
  13

  
	
  Section 9.03

  	
  Failure to Meet Delivery Date

  	
  13

  
	
  Section 9.04

  	
  Product Inspection and Acceptance

  	
  14

  
	
  Section 9.05

  	
  Packaging and Printed Materials

  	
  14

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 10

  PAYMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 10.01

  	
  Payment for Products

  	
  14

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 11

  WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 11.01

  	
  Product Warranty

  	
  15

  
	
  Section 11.02

  	
  Warranty Exclusions

  	
  15

  
	
  Section 11.03

  	
  Repair Under Product Warranty

  	
  15

  
	
  Section 11.04

  	
  Discovery of Defect By JV Purchasing Entity

  	
  15

  
	
  Section 11.05

  	
  Notice of Non-Compliance

  	
  15

  
	
  Section 11.06

  	
  Limitation of Warranty

  	
  16

  
	
  Section 11.07

  	
  No Waiver

  	
  16

  



 


ii.


 


C-3





















 


	
   

  	
  ARTICLE 12

  INTEGRATION AND SUPPORT SERVICES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 13

  INTELLECTUAL PROPERTY INDEMNITY AND INJUNCTIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 13.01

  	
  Indemnity

  	
  16

  
	
  Section 13.02

  	
  Injunctions

  	
  17

  
	
  Section 13.03

  	
  Required Request from Member

  	
  17

  
	
  Section 13.04

  	
  Exclusions

  	
  17

  
	
  Section 13.05

  	
  Sole Remedy

  	
  17

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 14

  INTELLECTUAL PROPERTY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 14.01

  	
  Intellectual Property Generally

  	
  17

  
	
  Section 14.02

  	
  Non-Assertion of Method Patents

  	
  17

  
	
  Section 14.03

  	
  License in the Event of Outsourcing

  	
  18

  
	
  Section 14.04

  	
  Software License

  	
  18

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 15

  EVENT OF DEFAULT; TERMINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 15.01

  	
  Event of Default

  	
  18

  
	
  Section 15.02

  	
  Termination

  	
  19

  
	
  Section 15.03

  	
  Survival of Provisions

  	
  19

  
	
  Section 15.04

  	
  Acts of the Parties Upon Termination

  	
  19

  
	
   

  	
   

  	
   

  
	
   

  	
  ARTICLE 16

  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 16.01

  	
  Notices

  	
  20

  
	
  Section 16.02

  	
  Amendments; No Waivers

  	
  20

  
	
  Section 16.03

  	
  Expenses

  	
  21

  
	
  Section 16.04

  	
  Assignment

  	
  21

  
	
  Section 16.05

  	
  Headings

  	
  21

  
	
  Section 16.06

  	
  Entire Agreement

  	
  21

  
	
  Section 16.07

  	
  Governing Law

  	
  21

  
	
  Section 16.08

  	
  WAIVER OF JURY TRIAL

  	
  21

  
	
  Section 16.09

  	
  Dispute Resolution; Arbitration

  	
  21

  
	
  Section 16.10

  	
  Independent Contractors

  	
  22

  
	
  Section 16.11

  	
  Severability

  	
  22

  
	
  Section 16.12

  	
  Counterparts; Effectiveness

  	
  22

  
	
  Section 16.13

  	
  Limitation of Liability

  	
  22

  



 


iii.


 


C-4





















 


	
  Section 16.14

  	
  Third Party Beneficiaries

  	
  22

  
	
  Section 16.15

  	
  Guaranty

  	
  23

  
	
  Section 16.16

  	
  Force Majeure

  	
  23

  



 


iv.


 


C-5





















 


Supply
Agreement


 


This Supply Agreement (the “Agreement”) is made and entered into as of                                   ,
2005 (the “Effective Date”) by and between
TCZ GmbH, a limited liability company organized under the laws of Switzerland,
having its principal place of business at [              ] (“JV”)
and [             ], a [                      ], having its principal
place of business at [            ] (“Supplier”).  JV and
Supplier are each a “Party” and
together constitute the “Parties” to
this Agreement.


 


RECITALS:


 


1.             Supplier
is a Member or Affiliate of a Member of JV, which has been formed by Cymer, Inc.
and Carl Zeiss SMT AG (“SMT”) pursuant
to a Joint Venture Agreement dated [date], 2005 (the “JV Agreement”);
and


 


2.             JV,
Cymer, Inc., SMT and Carl Zeiss Industrielle Messtechnik GmbH (“IMT”) have entered into an Intellectual Property Agreement
dated [date], 2005 (the “IP Agreement”),
and certain other agreements in furtherance of the collaboration contemplated
by the JV Agreement; and


 


3.             The
Parties are entering into this Agreement in order to set forth the terms under
which Supplier will supply certain Products (as defined below) to JV and its
Affiliates (as defined below).


 


NOW, THEREFORE, in consideration of the
promises and the respective representations, warranties, covenants, and
agreements set forth herein, the Parties agree as follows:


 


ARTICLE 1

DEFINITIONS


 


Section 1.01           Definitions.   The following terms shall be used in this
Agreement with the following meanings. 
Capitalized terms not otherwise defined in this Agreement shall have the
meaning set forth in the JV Agreement.


 


“Affiliate” means, with respect to any Person, any other
Person directly or indirectly controlling, controlled by or under common
control with such Person.  As used
herein, “control” (and the derivative terms “controlling” and “controlled”)
means the direct or indirect ownership of more than fifty percent (50%) of the
equity securities or other ownership interests and voting rights of, and the
possession, direct or indirect, of the power to direct or cause the direction
of the management and policies of a person, whether through the ownership of
voting securities, by contract or otherwise. 
No party or its Affiliates shall by reason of this Agreement be deemed
to be an affiliate of the other party or its Affiliates.  The term “affiliated”
shall have a corresponding meaning. 
Notwithstanding the foregoing definition, when used with respect to Carl
Zeiss Laser Optics GmbH or SMT, the term “Affiliate”
shall exclusively mean (a) Carl


 


1.


 


C-6





















 


Zeiss SMT AG and any Person under the control of Carl Zeiss SMT AG and (b) Carl
Zeiss IMT GmbH and any Person under the control of Carl Zeiss IMT GmbH.  Notwithstanding the foregoing definition, for
purposes of this Agreement, JV and its subsidiaries shall not be considered an
Affiliate of Supplier.


 


“Continuation Event”
means (a) the exercise by the Non-Triggering Party of its option to
purchase the Triggering Party’s interest in JV following a Triggering Event in
accordance with the JV Agreement, (b) the exercise by a Member of its
rights of first refusal to purchase the other Member’s Interest in the JV under
the JV Agreement, (c) the Transfer of an Interest by a Member or Member
Parent (as defined in the JV Agreement) to a Permitted Transferee that is not
an Affiliate of such Member, or (d) the Transfer of an Interest as
permitted under Section 11.04(c) of the JV Agreement.


 


“Continuing
Party” shall mean (a) the
Non-Triggering Party as defined in the JV Agreement, (b) the Member that
exercises its right of first refusal to purchase the Interest in the JV of the
other Member of the JV, (c) the Member that retains its Interest in the JV
upon the Transfer of an Interest by the other Member or Member Parent to a
Permitted Transferee which is not an Affiliate of such Member, or (d) the
Member that retains its Interest in the JV upon the Transfer by the other
Member or Member Parent of an Interest as permitted under Section 11.04(c) of
the JV Agreement.


 


Core Component”
means any component of a Product identified as a “Core Component” on Schedule 1,
as amended and updated from time to time by the parties.


 


“Delivery Point” means the place of delivery for
each Product as specified in Exhibit B.


 


“ECO”
means an Engineering Change Order issued to Supplier by JV.


 


“ECR”
means an Engineering Change Request from either Party to the other Party.


 


“ECR Charge”
means the costs, as determined by Supplier, associated with implementing the
changes of a certain ECR, and shall include, but not be limited to, (i) any
additional Expenses (as defined in Schedule 6.01, Para. 4); (ii) any
change in pricing or delivery schedule, and (iii) the cost impact of any
Product, work-in-process, or component rendered excess or obsolete as a result
of the ECR, but shall exclude any costs associated with changes related to
product safety, serviceability, liability, or correction of original design
flaws.


 


“Intellectual Property Rights” means any or all of the following and all
rights in, arising out of, or associated therewith, whether arising from
statute or common law: (i) all United States and foreign patents and
utility models and applications therefor and all reissues, divisions,
re-examinations, renewals,


 


2.


 


C-7





















 


extensions,
provisionals, continuations and continuations-in-part thereof, and equivalent
or similar rights anywhere in the world in inventions and discoveries,
including, without limitation, invention disclosures, (ii) all trade
secrets and other rights in know-how and confidential or proprietary
information, (iii) all copyrights, copyright registrations and
applications therefor and all other rights corresponding thereto throughout the
world, (iv) all industrial designs and any registrations and applications
therefor throughout the world, (v) all rights in World Wide Web addresses
and domain names and applications and registrations therefor, all trade names,
logos, common law trademarks and service marks, trademark and service mark
registrations and applications therefor and all goodwill associated therewith
throughout the world, and (vi) any similar, corresponding or equivalent
rights to any of the foregoing throughout the world.


 


“JV Product”
means any tool marketed by a JV Purchasing Entity from time to time employing a
beam generated by an excimer laser to induce crystallization for Low
Temperature Poly-Silicon (LTPS) processing for the manufacture of flat panel
displays.


 


“JV
Purchasing Entity” means JV or any Affiliate of JV that submits a
Purchase Order for Products under this Agreement.


 


“Member” shall
mean a Person who owns an Interest (as defined in the JV Agreement) in JV.


 


“Non-Core Component”
means any component of a Product that is not a Core Component.


 


“Other Supplier”
means the supplier under the Other Supply Agreement, supplying components to JV
pursuant to the Other Supply Agreement.


 


“Other Supply Agreement”
means the supply agreement between JV and [                                ]
executed contemporaneously with the execution of this Agreement.


 


 “Performance Test” means the Performance
Test to be performed on all Products, as specified by Section 9.04 and
described in Exhibit C.


 


“Permitted  Transferee” shall have the meaning set forth in Section 10.01
of the JV Agreement.


 


“Person” means
an individual, corporation, partnership, association, trust, limited liability
company or any other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.


 


“Preferred
Carrier(s)” means the
carrier(s) specified by a JV Purchasing Entity from time to time.


 


3.


 


C-8





















 


“Procured
Materials” means the materials purchased by Supplier to manufacture
the Products for a JV Purchasing Entity under this Agreement.


 


“Product”
means the products identified on Exhibit A, as amended and updated
from time to time by the Parties, to be manufactured by or for Supplier or its
Affiliates and supplied to a JV Purchasing Entity in accordance with this
Agreement.


 


“Purchase
Orders” means written or electronically transmitted purchase orders
for the Products issued by a JV Purchasing Entity to Supplier under this
Agreement.


 


“Quality Manual”  means the quality manual created or used by
Supplier to comply with the International Organization for Standardization’s
requirements for certification with its ISO 9000 standard.


 


“Quarterly
Business Technical Review Meeting” or “Quarterly BTR” means a meeting between Supplier and JV held at
least once every three (3) months, at which the Parties shall review
performance under this Agreement.


 


“SCAR”
means a JV Purchasing Entity’s Supplier Corrective Action Form, which shall
identify defective Products and require immediate corrective action by
Supplier.


 


“Specifications”
means the specifications for a Product, detailed on Exhibit A as
amended and updated from time to time by agreement of the Parties.


 


“Stages” means
precision positioning and metrology systems to be incorporated into JV
Products.


 


“Supplier
Intellectual Property” means all
Intellectual Property Rights to the Products.


 


(a)           Each of the following terms is defined in the Section set
forth opposite such term:


 


	
  Term

  	
   

  	
  Section

  
	
  Additional Term

  	
   

  	
  2.01(b)

  
	
  Adjusted EBIT

  	
   

  	
  Schedule 6.01(4)

  
	
  Agreement

  	
   

  	
  Preamble

  
	
  Assumed Volume

  	
   

  	
  Schedule 6.01(3)

  
	
  Changes in Working Capital

  	
   

  	
  Schedule 6.01(4)

  
	
  COGS

  	
   

  	
  Schedule 6.01(4)

  
	
  COS

  	
   

  	
  Schedule 6.01(4)

  
	
  Depreciation

  	
   

  	
  Schedule 6.01(4)

  
	
  EBIT

  	
   

  	
  Schedule 6.01(4)

  
	
  Effective Date

  	
   

  	
  Preamble

  
	
  EULA

  	
   

  	
  14.04

  



 


4.


 


C-9





















 


	
  Term

  	
   

  	
  Section

  
	
  Event of Default

  	
   

  	
  15.01

  
	
  Expenses

  	
   

  	
  Schedule 6.01(4)

  
	
  First Customer Ship

  	
   

  	
  Schedule 6.01(2)(c)

  
	
  Forecasted Quantity

  	
   

  	
  7.03

  
	
  Generation

  	
   

  	
  Schedule 6.01(1)

  
	
  IMT

  	
   

  	
  Recital 2

  
	
  Injunction Notification

  	
   

  	
  13.02(a)

  
	
  IP Agreement

  	
   

  	
  Recital 2

  
	
  JV

  	
   

  	
  Preamble

  
	
  JV Agreement

  	
   

  	
  Recital 1

  
	
  JV IP Notification

  	
   

  	
  13.02(a)

  
	
  JV IRR

  	
   

  	
  Schedule 6.01(5)

  
	
  JV Target IRR

  	
   

  	
  Schedule 6.01(5)

  
	
  Net Sales

  	
   

  	
  Schedule 6.01(4)

  
	
  NPV

  	
   

  	
  Schedule 6.01(4)

  
	
  Outsourced Non-Core Components

  	
   

  	
  14.03

  
	
  Party or Parties

  	
   

  	
  Preamble

  
	
  PPP

  	
   

  	
  4.01

  
	
  Price

  	
   

  	
  Schedule 6.01, Preamble

  
	
  Pricing Period

  	
   

  	
  Schedule 6.01(4)

  
	
  Product Defect Notice

  	
   

  	
  9.04

  
	
  Product Warranty

  	
   

  	
  11.01

  
	
  R

  	
   

  	
  Schedule 6.01(4)

  
	
  R&D Expense

  	
   

  	
  Schedule 6.01(4)

  
	
  R&D Expense Budget

  	
   

  	
  Schedule 6.01(2)(b)

  
	
  SG&A Expense

  	
   

  	
  Schedule 6.01(4)

  
	
  SMT

  	
   

  	
  Recital 1

  
	
  Software

  	
   

  	
  14.04

  
	
  Spares

  	
   

  	
  Schedule 6.01(7)

  
	
  Supplier

  	
   

  	
  Preamble

  
	
  Supplier IP Notification

  	
   

  	
  13.02(a)

  
	
  Supplier NPV

  	
   

  	
  Schedule 6.01(4)

  
	
  Warranty Expense

  	
   

  	
  Schedule 6.01(4)

  



 


ARTICLE 2

TERM OF AGREEMENT


 


Section 2.01           Term of Agreement.  The term of this Agreement will begin on the
Effective Date and will continue as long as Supplier or any of its Affiliates
is a Member of JV or such longer period as specified in Section 2.02
below, unless terminated by either Party in accordance with Article 15.


 


5.


 


C-10





















 


Section 2.02           Additional Term after Continuation Event.


 


(a)           Following occurrence of a Continuation Event, the
Continuing Party shall have the option to extend the term of this Agreement for
an additional period specified by the Continuing Party in a notice of
continuation to the other Party not to exceed the Non-Compete Period (as
defined in the JV Agreement) (the “Additional Term”).  During the Additional Term, JV shall have the
right to terminate this Agreement for any reason upon at least six (6) months
prior notice.


 


(b)           The term of this Agreement shall automatically be extended
for successive one (1) year periods upon expiration of any Additional Term
referred to in clause (a) above (and any renewal period), unless either JV
or Supplier gives the other Party notice that it does not wish to renew at
least six (6) months prior to the expiration of the Additional Term or
renewal period.


 


ARTICLE 3

SCOPE OF AGREEMENT


 


Section 3.01           General.  As more fully set forth in this Agreement, Supplier
shall accept Purchase Orders for Products issued by JV or its Affiliates in
accordance with Article 7, shall purchase materials necessary to manufacture,
assemble, test, and package such Products in accordance with the Specifications
and shall deliver the Products to JV or its Affiliates in accordance with the
terms of this Agreement.  Supplier shall
provide all manufacturing technology, equipment, labor, materials, and
facilities necessary to fulfill the accepted Purchase Orders and provide the
integration and support services as specified in Article 12.  [Supplier shall use IMT as its exclusive
supplier of Core Components for Stages, unless otherwise agreed in writing by
JV.](1)


 


Section 3.02           Exclusivity.  As long
as Supplier or any of its Affiliates is a Member of JV, JV and all of its
Affiliates shall use Supplier as their exclusive source of supply for the
Products (including any successor or substitute Products or any components
thereof), other than Non-Core Components outsourced by JV to a third party
supplier  in accordance with Section 6.01(c).


 


Section 3.03           Research and Development Effort. 
So long as Supplier or any of its Affiliates is a Member of
JV, Supplier will use commercially reasonable efforts to develop the Products,
or ensure that its Affiliates use commercially reasonable efforts to develop
the Products, in accordance with the applicable Work Plan (as defined in the JV
Agreement) adopted from time to time under the JV Agreement, except as may be
otherwise mutually agreed by JV and Supplier. 
If neither Supplier nor any of its Affiliates is a Member of JV,
Supplier will use commercially reasonable efforts to complete development of
any Products, or ensure that its Affiliates use commercially reasonable efforts
to complete development of any Products that were under development as of the
date on


 










(1) Only necessary
in the Zeiss Supply Agreement.


 


6.


 


C-11





















 


which Supplier and its Affiliates ceased to
be a Member of JV, except as may be otherwise mutually agreed by JV and
Supplier.  All work performed by or for
Supplier as part of this development will be performed in a professional,
workmanlike manner and according to prevailing industry standards.  Supplier will allocate and assign to each
relevant research and development project, at its discretion, a reasonably
sufficient number of qualified personnel with appropriate technical
skills.  Supplier may, in addition, from
time to time provide research and development services to JV or its Affiliates
which shall be documented in the separate R&D Services Agreement between
the Parties.


 


ARTICLE 4

PRODUCTS AND CHANGES


 


Section 4.01           Products.  When the JV
approves a Product Proposal Process (“PPP”) for a
JV Product and notifies Supplier in writing of such approval, all components
identified within such PPP which fall within the Competency (as defined in the
IP Agreement) of the Supplier or its Affiliates shall become Products under
this Agreement.  As soon as reasonably
practicable thereafter, the Parties shall agree on the specific Specifications,
Delivery Points, lead times, Performance Tests and material packaging standards
and Product Price for each such Product, and shall amend Exhibits A through D
accordingly.


 


Section 4.02           Change at Supplier’s Request.  Supplier
may at any time send an ECR to JV for issues such as, but not limited to,
improvement of the Product, lead time reduction, process enhancements, securing
the Product availability, or increase of the production yield.  JV shall acknowledge all ECR requests in a
reasonable period of time, not exceeding [.
.. . *** . . .] ([. . . *** . . .])
[. . . *** . . .] after receipt
of Supplier’s ECR by JV.  JV shall report
to Supplier the steps and the timeline when the assessment of the ECR can be
finalized and decided, not to exceed [.
.. . *** . . .] ([. . . *** . .
..]) [. . . *** . . .] in
any event. No fees shall be charged for ECR administration. If a Supplier ECR
is accepted by JV, it will be finalized in an ECO.


 


Section 4.03           Change at JV’s Request.  JV may at any time request changes to
drawings, plans, designs, procedures, specifications, test specifications, or
bill of materials, methods of packaging, and shipping quantities of Products,
delivery schedules, or any other matter. 
All changes, other than changes in quantity of Products shall be
requested pursuant to an ECR.


 


(a)  Supplier’s Response to JV ECRs.  No fees shall be charged for ECR
administration.  Supplier shall respond
to all ECRs in writing within [. . .
*** . . .] ([. . . *** . . .])
[. . . *** . . .] after an ECR
is received by Supplier.  In case
Supplier cannot report within [. . .
*** . . .] ([. . . *** . . .])
[. . . *** . . .] due to a
complex ECR, Supplier will disclose the steps and the timeline when the
assessment of the ECR can be finalized and quoted, not to exceed [. . . *** . . .] ([. . . *** . . .]) [. . . *** . . .] in any event.  Supplier’s response to an ECR shall include
any proposed ECR Charge.  Supplier shall
respond in writing to an ECR by (i) rejecting the ECR; (ii) accepting
the ECR with no ECR Charge;


 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND
240.24b-2(b)(1)


 


7.


 


C-12





















 


or (iii) accepting the ECR conditioned
upon JV accepting an ECR Charge.  If any
such change shall cause either an increase or a decrease in Supplier’s costs or
the time required for performance of any part of the work, the changes in
Supplier’s costs shall be identified and the delivery schedules may be adjusted
as indicated on Supplier’s response to an ECR; provided, however, that such
adjustments are approved by JV in writing prior to implementation.


 


(b)  JV Acceptance of ECRs.  If an ECR is accepted by Supplier with no ECR
Charge, it shall be finalized by JV in writing in an ECO.  In the event JV desires to proceed with a
change after receiving a report containing an ECR Charge, JV shall finalize the
ECR in writing in an ECO and the Price of the relevant Product will be adjusted
pursuant to Section 6.01 to reflect the ECR Charge.  In the event JV does not desire to proceed
with any change after receiving a report containing an ECR charge, JV shall
notify Supplier.  In the event Supplier
does not receive written confirmation from JV regarding any change within
thirty (30) days after Supplier delivers JV with the report containing an ECR
Charge, the corresponding ECR shall be deemed cancelled.


 


Section 4.04           Emergency Changes.  If
JV submits an emergency ECO clearly identified as such, Supplier shall
implement such ECO as soon as possible; provided, however, that Supplier has
advised JV of and JV has approved in writing any cost or other impact of such
change.


 


Section 4.05           Impact on Part Numbers.  In
case of a change in form, fit or function of a Product, a new part number will
be issued.


 


Section 4.06           Impact on Open Purchase Orders.  Unless
JV specifies otherwise in its written approval of changes pursuant to this Article 4,
such changes shall not impact any units already scheduled for delivery as of
the date of JV’s approval.


 


ARTICLE 5

QUALITY AND INSPECTION


 


Section 5.01           Specification Requirements.  Supplier
shall manufacture the Products in accordance with the Specifications,
except as modified by written ECOs.  The
Specifications shall include, but are not limited to, workmanship, test,
dimensional, and cosmetic quality. 
Supplier shall provide JV at each Quarterly BTR reports and analysis of
its yields and failure rates. The format and content of the quality reports
will be agreed between both Parties.


 


Section 5.02           ISO 9000 Certification,
Documentation and Inspection.  Supplier
(and any Affiliates of Supplier providing Products or components of Products to
Supplier for delivery to  a JV Purchasing
Entity under this Agreement) shall be, at a minimum, ISO 9000 compliant as of
the Effective Date and at all times during the term of this Agreement,
including any Additional Terms or 
renewal terms.  Supplier
acknowledges that it is essential for JV and its 


 


8.


 


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Affiliates to be able to satisfy and comply
with the requirements for ISO 9000 certification.  Supplier agrees to assist JV and perform all
acts reasonably requested by JV in furtherance of JV’s or JV Affiliates’ ISO
9000 certification including but not limited to the following:


 


(a)           If Supplier is or becomes ISO 9000 certified, Supplier
shall (i) promptly upon request provide JV with a copy of Supplier’s ISO
9000 certificate from its registrar (e.g., DNV or TUV) and a copy of Supplier’s
Quality Manual; and (ii)  in the event JV determines there are quality
issues with the Products or any part thereof and upon reasonable notice during
Supplier’s normal business hours, allow JV to conduct special
audits/inspections of Supplier’s facility as JV deems necessary to assess
Supplier’s compliance with its Quality Manual; and


 


(b)           If Supplier is not ISO 9000 certified, but is or becomes
ISO 9000 compliant, Supplier shall (i) promptly upon request provide JV
with a copy of Supplier’s Quality Manual; (ii) allow JV to conduct
pre-award, post-award and annual audits of Supplier’s facilities as required
under ISO 9000; and (iii)  in the event JV determines there are quality
issues with the Products or any part thereof and upon reasonable notice during
Supplier’s normal business hours, allow JV to conduct special
audits/inspections of Supplier’s facility as JV deems necessary to assess
Supplier’s compliance with its Quality Manual.


 


Any such inspections/audits and any testing
done by JV in accordance with (a) and (b) above shall not relieve
Supplier of liability for Products later found to be defective or for Supplier’s
failure to meet its obligations under this Agreement.  JV shall have the same rights with respect to
any Affiliates of Supplier providing Products or components of Products to
Supplier for delivery to a JV Purchasing Entity under this Agreement as JV has
with respect to Supplier under this Section 5.02; provided that JV will
first request Supplier to conduct such audits of its Affiliates and report the
results thereof to JV, and JV will only conduct such audits directly with
respect to Affiliates of Supplier if, in JV’s reasonable opinion, Supplier has
failed to satisfactorily perform such audits. 
If JV elects to conduct an audit of a Supplier’s Affiliate, it shall
notify Supplier of its election and keep Supplier reasonably informed of the
progress of any such audit.


 


Section 5.03           Agency Approvals.  Supplier
shall be responsible for obtaining all required agency and regulatory approvals
for the Products as specified in the Specifications; provided, however, that JV
shall provide Supplier with all information and assistance reasonably requested
by Supplier for the purpose of obtaining such approvals.


 


Section 5.04           Quality Tracking.  JV
may, at its expense and option, track and evaluate the quality of the Products
received from the Supplier.  The quality
of the Products shall be reviewed at each Quarterly BTR.


 


9.


 


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Section 5.05           Serialization.  All
Products shall be serialized by Supplier. 
The serial number affixed to each Product shall be traceable back to the
manufacturing location, time, and lot.


 


ARTICLE 6

PRICING


 


Section 6.01           Cost Model And Prices.


 


(a)           General Pricing Model.  Except as otherwise provided in this Article 6,
the Price for each Product shall be determined by the Parties in accordance
with this Article 6 and the specific provisions of Schedule 6.01.


 


(b)           Tax or Legal
Requirements.  The Parties
believe that the Prices determined as provided in this Article 6 will
represent fair compensation for the Products and reflect the amount the JV
Purchasing Entity would pay and the Supplier would receive in an arms-length
transaction between unrelated persons. 
If either Party believes in good faith that applicable tax or other laws
or regulations require that the Prices be higher or lower than those otherwise
determined under this Article 6, the Parties will discuss such
requirements and make such adjustments to the Prices charged in the future
under this Agreement as may be required by such applicable tax or other laws or
regulations.  If (i) the prices
charged by the Other Supplier for its products are increased under the
provisions of the Other Supply Agreement with JV that are comparable to this Section 6.01(b) or
(ii) the prices charged by the Other Supplier under an Administrative
Services Agreement, Facilities Agreement or R&D Services Agreement (as
those terms are defined in the JV Agreement) are increased to include a higher
margin than that called for by the terms of those agreements in order to meet
the requirements of applicable tax or other laws or regulation, then the
Parties will discuss making adjustments to the Prices charged in the future under
this Agreement so that the Supplier is treated equitably in relation to the
Other Supplier and its Affiliates.  Each
Party may conduct or have conducted such transfer pricing studies as it
believes necessary or prudent to verify that the Prices comply with applicable
tax or other laws or regulations, and shall provide a copy of any such transfer
pricing study to the other Party upon request.


 


(c)           Process for Outsourcing to
Lower Cost Suppliers.  From
time to time, beginning [. . . *** . .
..] ([. . . *** . . .]) [. . . *** . . .] the [. . . *** . . .], JV may approach
Supplier with an indication that it has reasonable grounds to believe that a
certain Non-Core Component could be obtained from a third party supplier at the
same quality and performance level at a price that is [. . . *** . . .]% [. .
.. *** . . .] Supplier’s forecasted or applicable COGS (as defined in Schedule 6.01)
for such Non-Core Component.  On the
basis of such indication, Supplier shall obtain quotes for such Non-Core
Component from third party suppliers. 
Supplier and JV shall then discuss the quotes so obtained and consider
the feasibility of outsourcing the supply of the applicable Non-Core Component
to a third party supplier.  If a price
quote so obtained from a third party supplier is [. . . *** . . .]% [. .
.. *** . . .] Supplier’s


 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1) 


 


10.


 


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applicable COGS used in determining the price
for such Non-Core Component, Supplier shall, at its option, (i) outsource
the production of such Non-Core Component to such third party supplier, but
remain the immediate and exclusive supplier to the JV for such Non-Core
Component, (ii) continue to produce such Non-Core Component but reduce the
applicable price to the JV so that the COGS used in determining the price match
the price quoted by the third party supplier, or (iii) permit JV to
outsource supply of such Non-Core Component to a third party supplier, in which
case Supplier will cease to be the exclusive supplier for such Non-Core
Component, the price of the Products will be reduced by the COGS of such
Non-Core Component used in determining such Price, and Supplier shall provide
JV, [. . . *** . . .], with all
relevant design drawings and performance specifications to enable such
outsourcing and JV shall be entitled to exercise the license under Section 14.03
of this Agreement.  For the avoidance of
doubt, this Section 6.01(c) shall apply to Non-Core Components of
Stages supplied by IMT and any other Non-Core Components supplied by Supplier’s
Affiliates.


 


Section 6.02           Currency.  All Prices
of Products will be in Supplier’s functional currency.


 


Section 6.03           Taxes.


 


(a)           All applicable taxes, including, but not limited to, sales
taxes, use taxes, value-added taxes, transaction privilege taxes, gross
receipts taxes, and other charges, such as duties, customs, tariffs, imposts,
and government imposed surcharges, and such taxes and/or other charges shall be
stated separately on Supplier’s invoice to each JV Purchasing Entity.  Supplier shall remit all such charges to the
appropriate tax authority on such JV Purchasing Entity’s behalf, unless such JV
Purchasing Entity provides sufficient proof of tax exemption.


 


(b)           In the event that a JV Purchasing Entity is prohibited by
law from making payments to Supplier unless such JV Purchasing Entity deducts
or withholds taxes therefrom and remits such taxes to the local taxing
jurisdiction, then JV Purchasing Entity shall duly withhold such taxes, shall
pay to Supplier the remaining net amount after the taxes have been withheld,
and shall make available to Supplier any statements or receipts for such
payments that may be necessary for Supplier to claim a credit or refund for
such withheld taxes.  Such JV Purchasing
Entity shall not be required to reimburse Supplier for the amount of such taxes
withheld.  When property is delivered
and/or services are provided, or the benefit of services occurs within
jurisdictions in which Supplier’s collection and remittance of taxes is
required by law, Supplier shall have sole responsibility for payment of said
taxes to the appropriate tax authorities. 
In the event Supplier does not collect tax from a JV Purchasing Entity,
and is subsequently audited by any tax authority, liability of such JV
Purchasing Entity will be limited to the tax assessment, with no reimbursement
for penalty or interest charges.  Each
Party is responsible for its own respective income taxes or


 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND
240.24b-2(b)(1)


 


11.


 


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taxes based upon gross revenues, including,
but not limited to, business and occupation taxes.


 


Section 6.04           Audit Rights.  At any time during the term of this Agreement
that Supplier (directly or through an Affiliate) is no longer a Member, JV
shall have the right, upon reasonable notice, to have inspected and examined by
an independent third party auditing firm selected by JV, Supplier’s and its
Affiliates’ financial and business records relating to Expenses, to ensure
compliance with the pricing terms of this Agreement.  The auditor, at its option, may request
Supplier to make Supplier’s Affiliates’ financial and business records
available for inspection and examination by the auditor or may audit such
Affiliates’ financial and business records directly with such Affiliates, or
both, provided that the auditor will advise Supplier in advance if it elects to
conduct an audit of the Affiliates’ financial and business records directly
with such Affiliates and shall keep Supplier reasonably informed of the
progress of any such audit.  Such audit
may be conducted no more frequently than once in any year and shall be
conducted at JV’s expense, unless such audit reveals that the amount paid by
all JV Purchasing Entities for the period covered by such audit exceeded by [. . . *** . . .] than [. . . *** . . .] percent ([. . . *** . . .]%) the amount that
such JV Purchasing Entity should have been required to pay under this Agreement
for such period, in which event Supplier shall bear the costs of such
audit.   The auditor may be required by
Supplier to execute a confidentiality agreement with Supplier, and shall only
report to JV the amount and period of any overpayment or underpayment, the
affected Product(s) and a breakdown of the overpayment or underpayment by types
of Expenses (as defined in Schedule 6.01).


 


ARTICLE 7

PLANNING, ORDERS, AND ADJUSTMENTS


 


Section 7.01           Planning.  (a)  As
long as Supplier (directly or through an Affiliate) is a Member of JV, the
volume and product mix scenarios contained in the Business Plan of the JV (as
in effect from time to time) shall serve as non-binding indications for the
Parties.


 


(b)           If Supplier is no longer (directly or through an
Affiliate) a Member of JV, in every calendar month during the remaining term of
this Agreement, JV shall provide Supplier with a demand forecast covering the
period of [. . . *** . . .] ([. . . *** . . .]) [. . . *** . . .] beginning with the [. . . *** . . .] in which such
forecast is provided.  Such forecast
shall specify the number of units of the Products that all JV Purchasing
Entities anticipate purchasing during the [. . . *** . . .] ([. .
.. *** . . .]) [. . . *** . . .]
period.  Such forecast shall be
non-binding and shall not be regarded by Supplier as JV’s or JV Purchasing
Entities’ commitment to purchase, or by JV or JV Purchasing Entities as
Supplier’s commitment to produce and deliver, the quantity of Products.


 


Section 7.02           Purchase Orders.  Any
JV Purchasing Entity may order Products by issuing Purchase Orders to Supplier
in writing or by electronic means.  If any
of the terms of this Agreement conflict with any term of an issued


 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND
240.24b-2(b)(1)


 


12.


 


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Purchase Order, this Agreement shall take
precedence. To be effective, all Purchase Orders must comply with the lead
times for each Product listed on Exhibit B, and contain the
following terms:


 


(a)           description of the Products to be purchased, by part
number;


 


(b)           quantity of the Products to be purchased;


 


(c)           delivery date or shipping schedule;


 


(d)           the location to which the Products are to be shipped;


 


(e)           transportation instructions; and


 


(f)            price.


 


Each Purchase
Order shall provide an order number for billing purposes and may include other
instructions and terms as may be appropriate under the circumstances as agreed
by the Supplier and JV Purchasing Entity.


 


Section 7.03           Acceptance of Purchase Orders. Provided that JV Purchasing
Entity complies with the lead time requirements for a Product listed on Exhibit B
and except as otherwise provided in Section 13.02, Supplier shall
accept all Purchase Orders otherwise complying with this Article 7.  Supplier shall be bound to (and Supplier shall
ensure that any of its Affiliates supplying Products or components of Products)
meet the requested delivery dates in such Purchase Orders for any quantity of
Products that is within the quantity of Product specified in (a) if the
Supplier is (directly or through an Affiliate) a Member of JV, the then current
Business Plan (including the upside quantity specified in the Business Plan) or
(b) if the Supplier is no longer (directly or through an Affiliate) a
Member of JV, the most current Business Plan (including the upside quantity
specified in the Business Plan) in effect at the time Supplier (directly or
through an Affiliate) ceased to be a Member of JV  (“Forecasted Quantity”),
and shall use commercially reasonable efforts to meet the requested delivery
dates in such Purchase Orders to the extent that such Purchase Orders are for a
quantity that exceeds the Forecasted Quantity. 
If Supplier fails to deliver to a JV Purchasing Entity a notice of
rejection of a Purchase Order within [.
.. . *** . . .] ([. . . *** . .
..]) [. . . *** . . .] of
receipt of such Purchase Order, the Purchase Order shall be deemed
accepted.  In the event that Supplier is
aware of any circumstances that will prevent it from complying with the
delivery date or shipping schedule, or finds the schedule unacceptable for
some other reason, the Supplier and JV Purchasing Entity agree to negotiate in
good faith to resolve the disputed matter.


 


Section 7.04           Rescheduling of Purchase Orders. 
With respect to each existing Purchase Order, the applicable
JV Purchasing Entity shall have the right to reschedule the delivery of
Products under such Purchase Order [.
.. . *** . . .] time, at any


 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND
240.24b-2(b)(1)


 


13.


 


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time prior to shipment, without charge, for
delivery within [. . . *** . . .] of
the originally scheduled delivery date.


 


Section 7.05           Inventory Planning.  Supplier
shall take all steps necessary to fulfill the Product and delivery requirements
of each Purchase Order.


 


Section 7.06           Cancellation of Purchase Orders.  A JV Purchasing Entity may cancel any
Purchase Orders, in whole or in part, on [.
.. . *** . . .] ([. . . *** . .
..]) [. . . *** . . .] notice
to Supplier; provided, however, that the JV Purchasing Entity shall reimburse
Supplier for costs in accordance with this Section 7.06.  Notwithstanding the foregoing, both Supplier
(and its Affiliates) and JV Purchasing Entity shall undertake all reasonable
measures to mitigate the costs associated with the cancellation of a Purchase
Order, and Supplier (and its Affiliates) shall make all reasonable efforts to
return to suppliers all excess and obsolete material immediately upon receipt
of any cancellation.  In the event that a
JV Purchasing Entity cancels a Purchase Order, Supplier shall submit a report
within [. . . *** . . .] ([. . . *** . . .]) [. . . *** . . .] of such
cancellation that details the costs associated with such cancellation.  In the event that Supplier is unable to
mitigate certain costs associated with a cancellation, the JV Purchasing Entity
shall reimburse Supplier for the costs associated with such cancellation;
provided, however, that the JV Purchasing Entity shall only be required to
reimburse Supplier for costs incurred by Supplier in accordance with actual
material requirements planning practices for raw material, tooling costs, and
work in progress and finished goods that cannot be used or reused in other
Products under this Agreement or in products for other customers within [. . . *** . . .] ([. . . *** . . .]) [. . . *** . . .] of the scheduled
delivery date under the cancelled Purchase Order.


 


ARTICLE 8

INVENTORY PLANNING


 


Section 8.01           Procurement of Materials.  JV
Purchasing Entities shall not be parties to purchase transactions for Procured
Materials and Supplier shall be solely responsible for all payments for the
Procured Materials.  Supplier shall
manage its inventory of Procured Materials in a manner that shall ensure that
Supplier can fill JV Purchasing Entities’ Purchase Orders according to the
agreed upon lead times and flexibility terms and obtain competitive prices for
such materials and components.


 


Section 8.02           Quarterly BTR.  At
each Quarterly BTR, (a) Supplier shall present manufacturing capacity
analysis at the plant(s) that produces the Products (including any such
plant(s) of Supplier’s Affiliates), which should include, but is not limited
to, staffing, facilities, equipment dedicated to producing the Products,
Supplier’s business growth that may impact Supplier’s ability to meet JV’s
demand; provided, however, that Supplier shall not be required to disclose any
information that is covered by any confidentiality agreement between Supplier
and Supplier’s other customers, and (b) JV shall present its forecasts and
expected industry outlook.


 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND
240.24b-2(b)(1)


 


14.


 


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ARTICLE 9

DELIVERY; CARRIER; TITLE; RISK OF LOSS; AND ACCEPTANCE


 


Section 9.01           Delivery.  Supplier
shall deliver or have delivered the total number of units of a Product ordered
in a particular accepted Purchase Order to the Delivery Point no more than [. . . *** . . .] ([. . . *** . . .]) [. . . *** . . .] nor [. . . *** . . .] ([. . . *** . . .]) [. . . *** . . .] of the date
specified in such Purchase Order. 
Deliveries shall be FCA (Incoterms 2000) Delivery Point.  Risk of loss shall pass to JV Purchasing
Entity upon delivery.


 


Section 9.02           Packaging and Shipping.  Supplier
shall mark, pack, package, crate, transport, ship, and store the Products to
ensure delivery of the Products to their ultimate destination in a safe
condition and in compliance with all requirements of the carrier and
destination authorities and all special instructions from a JV Purchasing
Entity.  Supplier shall use a Preferred
Carrier or its own shipping services for delivery; provided, however, that if a
JV Purchasing Entity does not designate a Preferred Carrier, Supplier may
select a common carrier at its discretion.


 


Section 9.03           Failure to Meet Delivery Date.  In
addition, and without prejudice to any other rights or remedies available to JV
or a JV Purchasing Entity under law or otherwise:


 


(a)           If a delivery is or shall be late by [. . . *** . . .] or [. . . *** . . .], provided late
delivery was not caused by affirmative acts of a JV Purchasing Entity, Supplier
shall use its best efforts to expedite delivery and pay the incremental cost of
such accelerated delivery of the order to the JV Purchasing Entity and any
penalties or late fees which the JV Purchasing Entity is contractually required
to pay to its customer as a result of such late delivery, provided
such penalties or late fees shall have been disclosed to and accepted by
Supplier.


 


(b)           If Supplier delivers Products [. . . *** . . .] than [.
.. . *** . . .] ([. . . *** . .
..]) [. . . *** . . .] of
the required delivery date, the JV Purchasing Entity shall retain such Products
and postpone payment until it is due per the original delivery date and the
terms hereof.


 


Section 9.04           Product Inspection and
Acceptance.  A JV Purchasing
Entity may inspect Products delivered under this Agreement for deficiencies in
workmanship or material either at the Delivery Point and/or at its
destination.  Prior to initiating
delivery, Supplier shall conduct, or after delivery the JV Purchasing Entity
may conduct, a Performance Test, which shall demonstrate that the Products are
in compliance with the Specifications. 
In the event that a Product fails a Performance Test performed by
Supplier, Supplier shall cure such defect prior to initiating delivery.  If a Product delivered by or on behalf of
Supplier fails a Performance Test conducted by the JV Purchasing Entity or is
otherwise found to be defective by a JV Purchasing Entity, the JV Purchasing
Entity shall issue a notice of Product defect to Supplier (the “Product Defect


 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


15.


 


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Notice”).  The JV Purchasing Entity may require
Supplier, at Supplier’s option, to repair or replace such defective or non-conforming
Products in accordance with and subject to the warranty provisions set forth in
Article 11.  Products shall be
deemed accepted by the JV Purchasing Entity upon delivery; however, acceptance
shall not affect any rights of the JV Purchasing Entity under the warranty
provisions set forth in Article 11.


 


Section 9.05           Packaging and Printed Materials. 
All packaging and labeling shall comply with JV Purchasing
Entity’s requirements, which shall be provided in Exhibit D for
each Product.  Supplier is not allowed to
put a Supplier label on the Products and shipping crates for module and systems
unless stated in writing by JV.


 


ARTICLE 10

PAYMENTS


 


Section 10.01         Payment for Products.  The
JV Purchasing Entity shall pay Supplier for quantities of Product delivered to
such JV Purchasing Entity (a) as long as Supplier or any of its Affiliates
is a Member of JV, [. . . *** . . .] the
[. . . *** . . .] that such JV
Purchasing Entity [. . . *** . . .] for
the [. . . *** . . .] in which
the [. . . *** . . .] or (b) if
Supplier is [. . . *** . . .] (whether
[. . . *** . . .]) a [. . . *** . . .], [. . . *** . . .] ([. . . *** . . .]) [. . . *** . . .], [. . . *** . . .], [. . . *** . . .], [. . . *** . . .].  Supplier shall have the right to place JV
Purchasing Entity’s shipments on hold if the JV Purchasing Entity becomes [. . . *** . . .] than [. . . *** . . .] ([. . . *** . . .]) [. . . *** . . .] delinquent, and, if
such delinquencies are not resolved within [. . . *** . . .], Supplier, in Supplier’s sole discretion, may
stop obtaining the Procured Materials and manufacturing of Products.  JV Purchasing Entity’s payment of Supplier’s
invoice shall not constitute final acceptance of the Product and is subject to
adjustments for errors, shortages and defects. 
Both Parties agree to work diligently to resolve any discrepancies
involving invoices.


 


ARTICLE 11

WARRANTIES


 


Section 11.01         Product Warranty.  Supplier
represents and warrants to JV that each Product shall be free from defects in
workmanship and materials and conform to the Specifications from the date on
which the Product is delivered until [.
.. . *** . . .] ([. . . *** . .
..]) [. . . *** . . .] from
the date on which the JV Purchasing Entity’s product warranty to its customer
for the JV Product becomes effective, but in no event will the warranty period
continue beyond [. . . *** . . .] ([. . . *** . . .]) [. . . *** . . .] from the date of
delivery to the JV Purchasing Entity (the “Product
Warranty”).


 


Section 11.02         Warranty Exclusions.  The
warranty in Section 11.01. does not apply to:


 










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TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


16.


 


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(a)           a Product that has been abused, damaged, altered or
misused by any person or entity after title passes to a JV Purchasing Entity;


 


(b)           any materials consigned or supplied by a JV Purchasing
Entity or at a JV Purchasing Entity’s request to Supplier; and


 


(c)           any modification of the Products by a JV Purchasing Entity
or its customer without approval by Supplier in writing, which approval shall
not unreasonably be delayed or conditioned.


 


Section 11.03         Repair Under Product Warranty.  Supplier
shall, at Supplier’s option and expense, repair or replace any Products found
defective and covered by the Product Warranty. 
Supplier shall bear warranty costs such as JV’s labor, Supplier’s labor,
material, inspection and shipping to and from the Product user, including all
costs associated with Product installation.


 


Section 11.04         Discovery of Defect By JV Purchasing Entity.   Upon the discovery of a defective Product
within the warranty period, the JV Purchasing Entity shall issue to Supplier a
SCAR.  Supplier shall promptly respond to
the SCAR with the appropriate corrective action or failure analysis.


 


Section 11.05         Notice of Non-Compliance.  If
Supplier discovers or suspects that any Product (whether or not it has at the
time become part of an assembly with a JV Product) fails to comply with any
applicable consumer product or electrical safety rule or contains a defect
that could create a substantial product or electrical hazard, Supplier shall
notify JV immediately and supply JV with information concerning the nature and
extent of the defect involved and the nature and severity of injuries or
potential injuries related to the particular Product.  Supplier shall notify JV immediately of any
claim made or proceeding commenced against it arising out of its activities
under this Agreement.


 


Section 11.06         Supplier’s Representations and Warranties.  Supplier represents and warrants that it has
obtained the rights from its Affiliates, including IMT, to fully perform under
this Agreement, including but not limited to obtaining from IMT the right for
JV to conduct audits in accordance with Section 6.04.(2)


 


Section 11.07         Limitation of Warranty.


 


(a)           All claims for breach of the Product Warranty must be
received by Supplier no later than [.
.. . *** . . .] ([. . . *** . .
..]) [. . . *** . . .] after
the expiration of the warranty period.


 


(b)           THE WARRANTIES IN THIS SECTION ARE THE ONLY
WARRANTIES GIVEN BY SUPPLIER.  SUPPLIER
MAKES, AND JV


 










(2) References to
IMT not necessary in Cymer Supply Agreement.


 


*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


17.


 


C-22





















 


RECEIVES, NO OTHER WARRANTY EITHER EXPRESS OR
IMPLIED.  ALL WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE ARE EXPRESSLY
DISCLAIMED AND EXCLUDED.


 


Section 11.08         No Waiver.  A JV
Purchasing Entity’s approval or acceptance of any Products that do not meet the
Specifications shall not relieve Supplier of its warranty obligations under this
Section 11.


 


ARTICLE 12

INTEGRATION AND SUPPORT SERVICES


 


Section 12.01  Integration and
Support Services for Products.  As soon as reasonably practicable after the
Specifications for a Product have been agreed upon by the Parties, but in any
event no later than two calendar quarters before the expected initial first
commercial shipment of such Product by Supplier to JV, JV and Supplier will
mutually agree upon the integration and support services to be provided by
Supplier with respect to such Product, which will be included in the Price of
such Product.  A description of such
integration and support services will be attached to this Agreement as Exhibit E.


 


Section 12.02.  Additional  Integration and Support
Services for JV Products.  The
Parties may mutually agree that Supplier will provide integration and support
services with respect to Products in addition to the integration and support
services to be included in the Price of the Products under Section 12.01,
or the Parties may mutually agree that Supplier will provide integration and
supports services to the JV with respect to JV Products.  Any such agreement for additional integration
and support services will be set forth in a separate support services agreement
between the Parties.


 


ARTICLE 13

INTELLECTUAL PROPERTY INDEMNITY AND INJUNCTIONS


 


Section 13.01         Indemnity.  Notwithstanding
Section 16.13, entitled Limitation of Liability, if notified promptly in
writing of any action brought against a JV Purchasing Entity or its customers
based on a claim that a Product provided hereunder or any of its parts directly
infringes the Intellectual Property Rights of a third party, Supplier will
defend such action at its expense and will pay the cost and damages awarded in
any such action, provided that, the JV Purchasing Entity (and any indemnified
customer) grants Supplier sole control of the defense and settlement of such
action and at Supplier’s request and expense provides Supplier with all
assistance and information reasonably required for the defense and settlement
of such action.


 


Section 13.02         Injunctions; Claims.


 


(a) In the event that an
injunction (whether temporary, preliminary or final) is obtained against a JV
Purchasing Entity’s or a JV Purchasing Entity’s


 


18.


 


C-23





















 


customer’s sale, offer for sale, importation
or use of a Product or any of its parts, or against Supplier’s making, sale,
offer for sale, importation or use of a Product or any of its parts by reason
of infringement of any third party’s Intellectual Property Rights, the JV
Purchasing Entity or Supplier becoming aware of such injunction shall promptly
so notify the other (“Injunction Notification”).
In the event that, in a JV Purchasing Entity’s reasonable opinion, a Product
provided hereunder or any of its parts becomes or is likely to become the
subject of a claim that it directly or contributorily infringes the
Intellectual Property Rights of a third party, the JV Purchasing Entity shall
promptly so notify Supplier in writing ( “JV IP Notification”).  In the event that, in Supplier’s reasonable
opinion, a Product provided hereunder or any of its parts becomes or is likely
to become the subject of a claim that it directly  or contributorily infringes the Intellectual
Property Rights of a third party, Supplier shall promptly so notify JV in
writing (a “Supplier IP Notification”).


 


(b)  In the event of an
Injunction Notification or a JV IP Notification Supplier must, and in
the event of Supplier IP Notification Supplier may, at its option and
expense, either (i) procure for any affected JV Purchasing Entity and its
customers the right to continue selling, offering for sale, using and importing
the affected Product or (ii) replace or modify same so that it becomes
non-infringing, free of any third party Intellectual Property Rights, but
substantially equivalent in function to such Product.  If in the case of any Injunction
Notification, JV IP Notification, or Supplier IP Notification, options (i) and
(ii) above cannot be accomplished by Supplier despite Supplier’s
commercially reasonable efforts and expense, then Supplier may, upon notice to
JV and each affected JV Purchasing Entity:


 


(x) reject future purchase orders and cancel
any previously accepted but not yet fulfilled purchase orders for the affected
Products, and


 


(y) offer to accept the return, for a full
refund of the purchase price, of any affected Products previously delivered
under this Agreement and not yet sold or otherwise transferred by any JV
Purchasing Entity to a customer; and, in the event of such offer, Supplier
shall be relieved of any obligation to indemnify the JV Purchasing Entity
pursuant to Section 13.01 above to the extent of any and all amounts
attributable to the making, use, sale, offer for sale, importation,
duplication, distribution or other exploitation, by the Purchasing JV Entity,
occurring after the date of such notice, of any such Product for which Supplier
has offered to accept return. For the avoidance of doubt, nothing in this Section 13.02(b) shall
relieve Supplier of its obligation to indemnify any JV Purchasing Entity and
its customers for the making, use, sale, offer for sale, importation,
duplication, distribution or other exploitation of such Product sold or
otherwise transferred by any JV Purchasing Entity to a customer prior to the
date of such notice.


 


19.


 


C-24





















 


Section 13.03         Required Request from Member.  No JV Purchasing Entity shall have any rights
against Supplier, and Supplier shall have no liability to a JV Purchasing
Entity, under this Article 13 unless one Member of JV requests in writing
that Supplier comply with its obligations thereunder.


 


Section 13.04         Exclusions.  Supplier
shall have no liability under this Article 13 in relation to any
infringement or alleged or potential infringement (a) of Intellectual
Property Rights of any Member of the JV that is not an Affiliate of Supplier or
of any Affiliates of such Member, (b) resulting from the combination of
Supplier’s Products with products supplied by other entities that are not
Affiliates of Supplier, including without limitation the Member of the JV that
is not an Affiliate of Supplier, or (c) based on the practice of any
methods by JV Purchasing Entities or their customers.  Supplier’s obligations to indemnify a
customer of a JV Purchasing Entity under this Article 13 shall be limited
in scope and amount to the obligation of the JV Purchasing Entity to indemnify
such customer.


 


Section 13.05         Sole Remedy.  The
provisions of this Article 13 set forth Supplier’s sole and exclusive
obligations, and JV Purchasing Entity’s sole and exclusive remedies, with
respect to infringement of Intellectual Property Rights of any kind.


 


ARTICLE 14

INTELLECTUAL PROPERTY


 


Section 14.01         Intellectual Property Generally.  As between the Parties, Supplier (or its
Affiliates) shall retain all Intellectual Property Rights in the Products,
provided that nothing in this Agreement, will supersede or limit the terms of
the Intellectual Property Agreement or any licenses granted therein.


 


Section 14.02         Non-Assertion of Method Patents.  Supplier, on behalf of itself and its
Affiliates, covenants that it and its Affiliates will not at any time sue any
JV Purchasing Entity or users of Products purchased by any JV Purchasing Entity
under this Agreement for infringement of any patents owned or controlled by
Supplier or its Affiliates for the use of the Product, or the practice of any
process or method performed by such Product in the course of use of the
Product, in the manufacture of flat panel displays.


 


Section 14.03         License in the Event of Outsourcing.  Without limiting any licenses granted under
the Intellectual Property Agreement, if and to the extent that JV is entitled
to outsource the supply of Non-Core Components after following the process
required by Section 6.01(c) (“Outsourced Non-Core
Components”), Supplier, on behalf of itself and its Affiliates,
hereby grants JV and its Affiliates a worldwide, non-exclusive,
non-transferable (except as permitted under this Agreement), sublicensable,
irrevocable, [. . . *** . . .],
during the term of this Agreement, under any Intellectual Property Rights owned
or controlled by Supplier or its Affiliates in the design drawings or
performance


 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


20.


 


C-25





















 


specifications for Outsourced Non-Core
Components and in any Patents contained in Foreground Technology and Disclosed
Know-How (as defined in the IP Agreement) relating to such Outsourced Non-Core
Components, to have made, use and import, sell and offer for sale, lease and
otherwise transfer any Outsourced Non-Core Components. For the avoidance of
doubt, JV shall be entitled to exercise the foregoing license only if and to
the extent that it is entitled to outsource the supply of such Non-Core Components
after following the process required by Section 6.01(c).


 


Section 14.04         Software License.  Notwithstanding anything in this Agreement to
the contrary, to the extent that any Product includes or comprises computer
programs or other computer software (collectively “Software”), such Software will be delivered to the JV
Purchasing Entity subject to, and JV Purchasing Entity shall distribute such
Software only accompanied by a copy of, Supplier’s then current end user
license agreement applicable to such Software (“EULA”).  The EULA may be
either a written agreement signed by the end user or in such form and with such
acceptance notices and procedures as Supplier may reasonably specify from time
to time during the term of this Agreement. 
The JV Purchasing Entity will distribute the Software solely with
Products and solely for use in conjunction with Products (and not on a “stand-alone”
basis).  For the avoidance of doubt,
neither Software nor any copy of Software is sold to any JV Purchasing Entity.


 


ARTICLE 15

EVENT OF DEFAULT; TERMINATION


 


Section 15.01         Event of Default.  The
following shall constitute an “Event of
Default”:  A material breach
by either Party or any of its Affiliates of its obligations under this
Agreement that is not remedied within [.
.. . *** . . .] ([. . . *** . .
..]) [. . . *** . . .] after
notice by the other Party describing the specific breach and invoking this Section 15.01.  For avoidance of doubt, an Event of Default
shall not constitute grounds for terminating this Agreement except as provided
in Section 15.02.


 


Section 15.02         Termination.  In
addition to the termination of this Agreement upon expiration of its term in
accordance with Article 2, without limiting any other rights or remedies,
either Party may, at its election, terminate this Agreement upon [. . . *** . . .] ([. . . *** . . .]) [. . . *** . . .] notice to the other
Party:


 


(a)           if neither the Supplier nor any of its Affiliates is a
Member of JV, and an Event of Default by the other Party or its Affiliates has
occurred and is continuing;


 


(b)           upon the commencement by or against the other Party of any
case or proceeding under any bankruptcy, reorganization, insolvency or
moratorium law, or any other law or laws for the relief of debtors, or the
appointment of any receiver, trustee or assignee to take possession of the


 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


21.


 


C-26





















 


properties of the other Party, unless such
petition or appointment is set aside or withdrawn or ceases to be in effect
within thirty (30) days from the date of said commencement or appointment; or


 


(c)           upon dissolution of JV, provided that Supplier shall not be
entitled to terminate under this paragraph (c) if there has been a
Continuation Event prior to such dissolution.


 


Section 15.03         Survival of Provisions.  Notwithstanding
anything herein to the contrary, the provisions of Articles 1 (Definitions), 11
(Warranties), 13 (Intellectual Property Indemnity and Injunctions), 14
(Intellectual Property), and 16 (Miscellaneous) and Sections 15.03 (Survival
Provisions) and 15.04 (Acts of the Parties Upon Termination) shall survive
termination or expiration of this Agreement.


 


Section 15.04         Acts of the Parties Upon Termination. 
Upon termination for cause:


 


(a)           Supplier, at JV’s election, shall continue working on
outstanding Purchase Orders and protect all property in which a JV Purchasing
Entity has or may acquire an interest; and such JV Purchasing Entity shall
compensate Supplier for all Products delivered and accepted by such JV
Purchasing Entity under the terms of the Purchase Orders; and


 


(b)           Each Party shall return to the other, freight collect, all
materials that contain the other’s Confidential Information (as defined in the
Confidentiality Agreement among the Parties executed contemporaneously with
this Agreement), or if the other Party gives written instructions to do so,
destroy all such materials and provide the other Party a written certificate of
destruction within thirty (30) days after such destruction.


 


ARTICLE 16

MISCELLANEOUS


 


Section 16.01         Notices.  All notices,
requests and other communications to any Party shall be in writing (including
facsimile or similar writing) and shall be given,(3)


 


if to the JV, to:


 


TCZ GMBH


[address]

Attention: Chief Executive Officer


 










(3) Note to
draft: addresses for notices to be completed at time of execution of agreement.


 


22.


 


C-27





















 


Facsimile No: [                  ]

Telephone No.: [                        ]


 


with a copy to:


 


[                  ]

Attention: [                ]

Facsimile No: [                  ]

Telephone No.: [                        ]


 


if to Supplier, to:

[                  ]

Attention: [                ]

Facsimile No: [                  ]

Telephone No.: [                        ]


 


with a copy to:


 


[                  ]

Attention: [                ]

Facsimile No: [                  ]

Telephone No.: [                        ]


 


Section 16.02         Amendments; No Waivers.


 


(a)           Any provision of this Agreement may be amended or waived
if, and only if, such amendment or waiver is in writing and signed, in the case
of an amendment, by each Party, or in the case of a waiver, by the Party
against whom the waiver is to be effective.


 


(b)           No failure or delay by any Party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any single
or partial exercise thereof preclude any other or further exercise thereof or
the exercise of any other right, power or privilege.  The rights and remedies herein provided shall
be cumulative and not exclusive of any rights or remedies provided by law.


 


Section 16.03         Expenses.  Except as otherwise provided herein, all
costs and expenses incurred by the Parties hereto in connection with this
Agreement shall be paid by the Party incurring such cost or expense.


 


Section 16.04         Assignment.  This
Agreement may not be assigned or otherwise transferred by the Supplier, except
to a Permitted Transferee or a transferee permissible under Section 11.04(c) of
the JV Agreement who in each case is assigned Supplier’s entire Interest in the
JV (or Supplier’s Affiliate’s entire 


 


23.


 


C-28





















 


Interest in the JV in the event Supplier’s
Affiliate holds an Interest).  This
Agreement may not be assigned or otherwise transferred by the JV, except: (i) to
an Affiliate; or (ii) to a Continuing Party or to an entity acquiring all
or substantially all of the assets of the JV following a Continuation
Event.  Terms used in this Section 16.04
not defined in this Agreement are defined in the JV Agreement.


 


Section 16.05         Headings.  Headings
are for ease of reference only and shall not form a part of this Agreement.


 


Section 16.06         Entire Agreement. 
This Agreement together, with the Exhibits hereto, and any
documents referred to herein or therein, constitutes the entire agreement of
the Parties with respect to the subject matter hereof.  Any references in this Agreement to
provisions in the Exhibits to this Agreement are intended for clarification only,
and in the event of any inconsistency, the provisions of this Agreement shall
govern.


 


Section 16.07         Governing Law.  This
Agreement shall be governed by, and construed under, the laws of [. . . *** . . .] (without regard to
conflicts of laws principles).


 


Section 16.08         WAIVER OF JURY TRIAL.  EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.


 


Section 16.09         Dispute Resolution; Arbitration. 
(a) Any dispute, controversy or claim arising out of or
in connection with this Agreement or the alleged breach, termination or
invalidity thereof, may be escalated, at the request of either Party, to the
Chairman of the Board (or equivalent officer) of each Party for
resolution.  In the event of such a
request, the Chairmen shall meet, either in person or by telephone, within [. . . *** . . .] ([. . . *** . . .]) [. . . *** . . .] after the date of
such request in order to discuss and attempt to resolve such dispute,
controversy or claim by mutual agreement.


 


(b)  Any dispute,
controversy or claim arising out of or in connection with this Agreement or the
alleged breach, termination or invalidity thereof that is not settled by the
dispute resolution process set forth in Section 16.09(a) or otherwise
by the joint agreement of the Parties shall be finally settled under Rules of
Arbitration of the International Chamber of Commerce by three arbitrators
appointed in accordance with the said Rules. 
Unless otherwise agreed by the Parties, such arbitration shall take
place in [. . . *** . . .].  Any award rendered by the arbitrators
will be final and binding on the parties, and judgment upon the award may be
entered in the [. . . *** . . .],
or any other court having jurisdiction over the award or having jurisdiction
over the Parties or their assets.  The
arbitration


 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


24.


 


C-29





















 


agreement contained in this Section 16.09
will not be construed to deprive any court of its jurisdiction to grant
provisional relief (including by injunction or order of attachment) in aid of
arbitration proceedings or enforcement of an award.


 


Section 16.10         Independent Contractors.  The
relationship of the Parties established by this Agreement is that of
independent contractors, and nothing contained in this Agreement shall be
construed or implied to give any Party the power to direct or control the
day-to-day activities of any other Party, nor shall any Party have the right or
authority to assume, create or incur any third party liability or obligation of
any kind, express or implied, against or in the name of or on behalf of another
Party except as expressly set forth in this Agreement.


 


Section 16.11         Severability.   If any
term, provision, covenant or restriction of this Agreement is held by a court
of competent jurisdiction or other authority to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party.  Upon
such a determination, the Parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the Parties as closely as
possible in an acceptable manner in order that the transactions contemplated
hereby be consummated as originally contemplated to the fullest extent
possible.


 


Section 16.12         Counterparts; Effectiveness.  This
Agreement may be signed in any number of counterparts, each of which shall be
deemed an original.  This Agreement shall
become effective only after and subject to each Party having received a
counterpart hereof signed by each of the other Parties.


 


Section 16.13         Limitation of Liability.


 


(a)           EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT NEITHER
PARTY SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE,
EXEMPLARY, OR CONSEQUENTIAL DAMAGES, WHETHER BASED UPON CONTRACT, TORT, OR ANY
OTHER LEGAL THEORY, INCLUDING WITHOUT LIMITATION LOST PROFITS AND OPPORTUNITY
DAMAGE TO ASSOCIATED EQUIPMENT, COST OF CAPITAL, FACILITIES, SERVICE, OR
REPLACEMENT POWER, DOWNTIME COSTS, OR CLAIMS OF EITHER PARTY’S CUSTOMERS FOR
SUCH DAMAGES, WHETHER OR NOT EITHER PARTY WAS ADVISED OF THE POSSIBILITY OF
SUCH DAMAGE.


 


(b)           EXCEPT WITH REGARD TO INTELLECTUAL PROPERTY INDEMNITY
OBLIGATIONS, EACH PARTY’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL IN NO
EVENT EXCEED THE AMOUNT OF THE GREATER OF [. . . *** . . .]


 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


25.


 


C-30





















 


(US$[.
.. . *** . . .]) OR THE AGGREGATE AMOUNT PAID AND PAYABLE BY JV UNDER
THIS AGREEMENT DURING THE [. . . *** .
.. .] PRECEDING THE DATE ON WHICH SUCH LIABILITY AROSE; PROVIDED THAT
SUCH AGGREGATE AMOUNT SHALL NOT EXCEED [.
.. . *** . . .] (US$[. . . *** .
.. .]).


 


Section 16.14         Third Party Beneficiaries.  No provision of this Agreement is
intended to confer upon any Person other than the Parties hereto any rights or
remedies hereunder, unless expressly provided herein.


 


Section 16.15         Guaranty.  Each Party
guarantees the full and timely performance of any and all of its Affiliates’
obligations under this Agreement.


 


Section 16.16         Force Majeure.  In the
event that either Party is prevented from performing or, is unable to perform,
any of its obligations under this Agreement (other than a payment obligation)
due to any Act of God, fire or other physical casualty, such as flood or
earthquake, war, act of terrorism, civil disturbance, strike, lockout,
epidemic, destruction of production facilities, riot, insurrection, or any
other cause (excluding unavailability of funds, other than in case of bank
closure) beyond the reasonable control of the Party invoking this section, and
if such Party shall have used its commercially reasonable efforts to mitigate
its effects, such party shall give prompt notice to the other Party, and the
time for the performance shall be extended for the period of delay or inability
to perform directly resulting from such occurrences. Regardless of the excuse
of Force Majeure, if such Party is not able
to perform within ninety (90) calendar days after such event, the other Party
may terminate this Agreement.


 


[Remainder of this page intentionally left blank.]


 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


26.


 


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IN WITNESS
WHEREOF, the Parties hereto have caused this Agreement to be duly signed and
effective as of the Effective Date.


 


	
   

  	
  Accepted and agreed to:

  
	
   

  	
   

  
	
   

  	
  [SUPPLIER]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
   

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  TCZ GMBH

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
   

  
	
   

  	
  Title:

  



 


C-32





















 


SCHEDULE 1


 


CORE COMPONENTS 


 


1.              Definitions


 


For purposes of this Schedule 1 the
following terms shall be used with the following meanings:


 


“Background Technology” shall have the
meaning set forth in the IP Agreement.


 


 “Background
IP” shall mean any Intellectual Property Rights within Background
Technology of the respective Party.


 


“[.
.. . *** . . .]” means [. . .
*** . . .] of Products that involve [. . . *** . . .], or that are not [. . . *** . . .] in a [.
.. . *** . . .].


 


“[.
.. . *** . . .]” means [. . . *** . . .] based on [. . . *** . . .] for [. . . *** . . .] and [. . . *** . . .] a [. . . *** . . .] and [. . . *** . . .].


 


“[.
.. . *** . . .]” means [. . . *** . . .] for [. . . *** . . .], [. . . *** . . .], [. . . *** . . .] ([. . . *** . . .]), [. . . *** . . .] (which means [. . . *** . . .] to a [. . . *** . . .] with a [. . . *** . . .] and [. . . *** . . .]) and [. . . *** . . .] a [. . . *** . . .] and [. . . *** . . .].


 


“[.
.. . *** . . .]” means [. . .
*** . . .] for [. . . *** . .
..] , including without limitation, [. . . *** . . .], [. .
.. *** . . .], [. . . *** . . .],
[. . . *** . . .], [. . . *** . . .], [. . . *** . . .], [. . . *** . . .], [. . . *** . . .] by a [. . . *** . . .] to provide a [. . . *** . . .] and [. . . *** . . .] at a [. . . *** . . .], but not including [. . . *** . . .] and [. . . *** . . .].


 


“[. . . *** . . .]” means [. . . *** . . .] for [. . . *** . . .], but not including [. . . *** . . .] .


 


C-33





















 


2.              Core Components of
Cymer means


 


•                  [. . . *** . . .] of Products, for which [. . . *** . . .];


•                  [. . . *** . . .] ([.
.. . *** . . .]) for [. . . *** . . .];


•                  [. . . *** . . .]


•                  [. . . *** . . .] for [. . . *** . . .];


•                  [. . . *** . . .], including [. . . *** . . .];


•                  [. . . *** . . .], including [. . . *** . . .];
and


•                  [. . . *** . . .], including [. . . *** . . .].


 


3.              Core
Components of Carl Zeiss Laser Optics means


 


•                  [. . . *** . . .] of Products, for which [. . . *** . . .];


•                  [. . . *** . . .] and [. . . *** . . .] ([. . . *** . . .]), including (i) [. . . *** . . .], (ii) [. . . *** . . .],
and (iii) [. . . *** . .
..], but excluding [. . . *** . . .];


•                  [. . . *** . . .]; and


•                  [. . . *** . . .] ([.
.. . *** . . .], [. . . *** . . .] and [. . . *** . . .])
[. . . *** . . .] and [. . . *** . . .].


 










*                 CONFIDENTIAL TREATMENT
REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


C-33





















 


SCHEDULE 6.01


 


PRICING


 


Introduction.  It is the intention of the parties to
determine the price per unit for each Product intended for use in [. . . *** . . .] JV Products (the “Price”) on the basis of the [. . . *** . . .] for all Products for the [. . . *** . . .] for the [. . . *** . . .] of such Product [. . . *** . . .] during the [. . . *** . . .] of such [. . . *** . . .] according to the [. . . *** . . .] and other
provisions in this Schedule 6.01 and Article 6 of the Agreement.


 


1.             JV Product Generations.  For purposes of this Agreement, a “Generation” of JV Products shall include [. . . *** . . .] used in the
manufacture of flat panel displays, as determined by [. . . *** . . .] (e.g. “[.
.. . *** . . .]”, “[. . . *** .
.. .]”, “[. . . *** . . .]”.....),
including any [. . . *** . . .] or
[. . . *** . . .] designated
with the [. . . *** . . .] (e.g.
“[. . . *** . . .]” – if any –
would be treated [. . . *** . . .] “Generation”
as “[. . . *** . . .]”).  Notwithstanding the foregoing, if Supplier
produces, in accordance with JV’s requirements, [. . . *** . . .] or [.
.. . *** . . .] of Products for the [. . . *** . . .], these Product types shall be treated [. . . *** . . .], and Prices shall
be determined [. . . *** . . .].


 


2.             Process for
Determining Price.


 


(a)  [. . . *** . . .]  of Price.  A [.
.. . *** . . .] of the Price per unit for Products for [. . . *** . . .] shall be [. . . *** . . .] and [. . . *** . . .] .


 


(b)  Transparency; R&D Expense
Budget.  For purposes of determining
the Price, Supplier shall provide JV with a written report setting forth
expected [. . . *** . . .], [. . . *** . . .], [. . . *** . . .], [. . . *** . . .] and [. . . *** . . .], each determined in
accordance with the definitions in paragraph 4 below together with such
supporting materials as JV may reasonably request (including materials from any
Affiliate of Supplier supplying Products or components relating to its [. . . *** . . .]) for the purpose of
understanding the basis on which such amounts were calculated by Supplier.  At the time that the Parties agree upon the [. . . *** . . .] of the Price,
Supplier and JV shall agree upon the [.
.. . *** . . .] (as defined in paragraph 4 below) that Supplier [. . . *** . . .] in connection with
the Product (“[. . . *** . . .]”).  Supplier shall thereafter promptly notify JV
if Supplier’s [. . . *** . . .] or
it [. . . *** . . .] the [. . . *** . . .]; and in such event
JV and Supplier will [. . . *** . . .]
with respect to [. . . *** . .
..] and whether the agreed [. .
.. *** . . .].


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


C-1





















 


(c)  [. . . *** . . .] of Price. [. . . *** . . .] after the [. . . *** . . .] by the Parties, but
in any event no later than [. . . ***
.. . .] of the Products by Supplier to JV (“First
Customer Ship”),  JV and
Supplier shall [. . . *** . . .] the
Price for such Products.  JV and Supplier
shall [. . . *** . . .] Price
for such Products (subject to any [. .
.. *** . . .] as provided in paragraph 6 and in Article 6 of the
Agreement) [. . . *** . . .] the
First Customer Ship, by [. . . *** . .
..] to [. . . *** . . .] First
Customer Ship.


 


3.             [. . . *** . . .] Used for
Determining Price.  The Price shall
be determined on the basis of the [. .
.. *** . . .] by JV for the applicable [. . . *** . . .] (and the [. . . *** . . .]) (the “[.
.. . *** . . .]”) as agreed by JV and Supplier, provided that if JV and
Supplier are [. . . *** . . .] on
the [. . . *** . . .], the [. . . *** . . .] shall be determined
as follows:


 


(a)           If
Supplier or any Affiliate of Supplier is a Member of JV, then (i) either
JV or Supplier may request the Board of Representatives to [. . . *** . . .], and the [. . . *** . . .], but (ii) if
the Board of Representatives fails to [.
.. . *** . . .] of such request, the [. . . *** . . .] shall be based on [. . . *** . . .] by the Board of Representatives.


 


(b)           If
neither Supplier nor any Affiliate of Supplier is a Member of JV, then the [. . . *** . . .] shall be made by [. . . *** . . .] in its reasonable
judgment.


 


4.             Pricing Formula
for Products other than Spares.  The
Price for Spares shall be determined as provided in paragraph 7 below.  Except as otherwise provided below or in Article 6
of the Agreement, the Price for all Products (other than Spares) shall be
determined such that the [. . . *** .
.. .] (“[. . . *** . . .]”)
of the [. . . *** . . .] to the
Supplier from the [. . . *** . . .] of
Products for the applicable [. . . ***
.. . .], [. . . *** . . .],
over the [. . . *** . . .] of
the applicable [. . . *** . . .] (as
projected in the [. . . *** . . .]),
but in no event [. . . *** . . .] than
[. . . *** . . .] from the date
of the [. . . *** . . .] by
Supplier of such Product for [. . .
*** . . .] of a JV Product (the “Pricing Period”),
[. . . *** . . .] at a rate of [. . . *** . . .]% per [. . . *** . . .], (“[. . . *** . . .]”) shall be [. . . *** . . .], calculated as
follows on the basis of the following definitions:


 


	
   

  	
   

  	
  Pricing Period

  	
   

  
	
   

  	
   

  	
  [... ***...]

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  
	
  [...
  ***...]=

  	
   

  	
  [... ***...]

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  	
  [...
  ***...]

  	
   

  



 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


C-2





















 


*If applicable


 


Where:


 


“[.
.. . *** . . .] means [. . . ***
.. . .] plus [. . . *** . . .] for
the applicable product year (“Product Year”),
where [. . . *** . . .] is the [. . . *** . . .] commencing on [. . . *** . . .] for the applicable
JV Product as specified in Section 4.01 of the Supply Agreement, provided
that the [. . . *** . . .] for
the [. . . *** . . .] ([. . . *** . . .]) Products shall be
deemed to have commenced as of [. . .
*** . . .].


 


“[.
.. . *** . . .]” = [. . . *** . . .]


 


“Earnings Before Interest
and Taxes” for each Product Year means expected Net Sales minus
Expenses.


 


“Net Sales”
means the sum of the expected total net sales during the applicable Product
Year of (a) Products ([. . . ***
.. . .], [. . . *** . . .]),
by Supplier to JV at the Price, and (b) of Spares for such [. . . *** . . .] at the price for
Spares specified in paragraph 7. below.


 


“Expenses”
means, for each Product Year, the [. .
.. *** . . .] of


 


[. . . ***
.. . .],


[. . . ***
.. . .],


[. . . ***
.. . .],


[. . . ***
.. . .], and


[. . . ***
.. . .],


 


each (i) based on Supplier’s [. . . *** . . .] as of the [. . . *** . . .] based on the [. . . *** . . .], (ii) computed
using US GAAP unless otherwise specified and (iii) reflecting Supplier’s [. . . *** . . .] of its [. . . *** . . .] based on the [. . . *** . . .], where:


 


“[.
.. . *** . . .]” means the [. .
.. *** . . .] of the following [.
.. . *** . . .] for the Products ([.
.. . *** . . .]) [. . . *** . .
..] to be delivered during the applicable Product Year: [. . . *** . . .], [. . . *** . . .], [. . . *** . . .], and [. . . *** . . .] (including [. . . *** . . .]).  [. .
.. *** . . .] for Products (including [. . . *** . . .]) or components [. . . *** . . .] Supplier from [. . . *** . . .] Supplier shall be the [. . . *** . . .] of such [.
.. . *** . . .], as defined above, [.
.. . *** . . .] by the [. . .
*** . . .] or Supplier.


 


“[.
.. . *** . . .]” means an amount for [. . . *** . . .] to be furnished by Supplier under this
Agreement, such amount to be [. . .
*** . . .] the Parties at the [.
.. . *** . . .] and


 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


C-3





















 


[. . . ***
.. . .] to be furnished by Supplier for such Product [. . . *** . . .] by the Parties.


 


“Depreciation” means
depreciation recognized by Supplier during the applicable Product Year with
respect to [. . . *** . . .],
or [. . . *** . . .] and [. . . *** . . .], the development or
manufacturing of the Product.


 


“[.
.. . *** . . .]” means any [. .
.. *** . . .] and related expense with Products expected to be sold
during the applicable Product Year.


 


“[.
.. . *** . . .]” means [. . .
*** . . .] or [. . . *** . . .]
by Supplier during the applicable Product Year in connection with the [. . . *** . . .], [. . . *** . . .] and [. . . *** . . .] of the Products for
that [. . . *** . . .] on the
basis of the [. . . *** . . .] between
Supplier and JV, provided that [. . .
*** . . .] shall not [. . . ***
.. . .] unless [. . . *** . . .]
Supplier and JV.   JV will not [. . . *** . . .] in the [. . . *** . . .] for [. . . *** . . .] provided that Supplier
has [. . . *** . . .] JV of
such [. . . *** . . .].


 


“[.
.. . *** . . .]” means an amount equal to [US$[. . . *** . . .]](4) per Product Year, provided that if
Products for [. . . *** . . .] of
JV Product will be supplied by Supplier to JV during the applicable Product
Year, this sum shall be [. . . *** . .
..] between such Products of [.
.. . *** . . .] in accordance with [.
.. . *** . . .] (based on [. . .
*** . . .]).


 


Changes in Working Capital means
[. . . *** . . .] of [. . . *** . . .] in [. . . *** . . .], [. . . *** . . .] and [. . . *** . . .] for the Products
(including [. . . *** . . .])
during such Product Year.


 


5.             JV [. . . *** . . .].  The provisions of this paragraph 5 shall only
apply for Prices that are determined in accordance with paragraph 4 [. . . *** . . .], but shall not
apply for Prices that are determined in accordance with paragraph 4 [. . . *** . . .].  If the Price determined in accordance with


 










(4) €[. . .
*** . . .] in the Zeiss Supply Agreement; US$[. . . *** . . .] in Cymer’s.


 


*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND
240.24b-2(b)(1)


 


C-4





















 


paragraph 4, and the price determined in accordance with the [. . . *** . . .] of JV’s [. . . *** . . .] Agreement for the [. . . *** . . .] products of the
same [. . . *** . . .] as the
Product, would result in [. . . *** .
.. .] (the “JV [. . . *** .
.. .]”) on its business related to JV Products of the applicable [. . . *** . . .] (such JV [. . . *** . . .] to be determined in
accordance with the [. . . *** . . .] of
the JV) that is [. . . *** . . .] than
the amount provided in this paragraph 5 (“JV [. . . *** . . .] “), then JV,
Supplier and the [. . . *** . . .] shall
[. . . *** . . .] and [. . . *** . . .] for [. . . *** . . .] with a view to [. . . *** . . .] the JV [. . . *** . . .] at the JV [. . . *** . . .] or [. . . *** . . .].  If, after such [. . . *** . . .] have been [. . . *** . . .], the calculation still yields JV [. . . *** . . .] the JV [. . . *** . . .], the Price under
this Agreement and the price determined in accordance with the [. . . *** . . .] of the JV’s [. . . *** . . .] Agreement with the [. . . *** . . .] shall each be [. . . *** . . .] by [. . . *** . . .] used in calculating
the Prices by the [. . . *** . . .] until
the JV [. . . *** . . .] is [. . . *** . . .] the JV [. . . *** . . .] or the JV [. . . *** . . .], whichever occurs [. . . *** . . .].  The JV [.
.. . *** . . .] for [. . . *** .
.. .] made during the [. . . ***
.. . .] following the Effective Date shall be [. . . *** . . .] percent ([. . . *** . . .]%).  [. . . *** . . .] the [. . . *** . . .] of the Effective
Date, the Parties will review the [. .
.. *** . . .] of JV and Supplier under this Agreement, and [. . . *** . . .] the JV [. . . *** . . .], as the Parties [. . . *** . . .] is [. . . *** . . .], to reflect the [. . . *** . . .] of  JV and Supplier.


 


6.             [. . . *** . . .] Price. Once the
Price has been established for Products for a given [. . . *** . . .] as provided in paragraphs 2, 3, 4 and 5, such
Price shall [. . . *** . . .] the
Price for all Products purchased by JV for use in that [. . . *** . . .], [. .
.. *** . . .] in this paragraph 6 and in Section 6.01(b) and (c) of
the Agreement, [. . . *** . . .],
[. . . *** . . .], to be a [. . . *** . . .] or [. . . *** . . .] by JV is [. . . *** . . .] or [. . . *** . . .] the [. . . *** . . .] used in determining
the Price or the [. . . *** . . .] or
[. . . *** . . .] than that [. . . *** . . .] in determining the
Price.


 


(a)           [. . . *** . . .] If [. . . *** . . .] Was [. . . *** . . .] by [. . . *** . . .].  If the Price was established based upon an [. . . *** . . .] by [. . . *** . . .] pursuant to
paragraph 3(b), then the Price determined in accordance with paragraphs 2, 3, 4
and 5 above shall [. . . *** . . .] the
Price, [. . . *** . . .] in
this paragraph 6, only for [. . . ***
.. . .], and the Price for the [.
.. . *** . . .] shall be the [.
.. . *** . . .] of (a) such Price and (b) an amount [. . . *** . . .] to [. . . *** . . .]%.


 


(b)           [. . . *** . . .]  for JV [.
.. . *** . . .].  JV and
Supplier shall, on a [. . . *** . . .]
basis, [. . . *** . . .] for
the relevant JV Product as [. . . ***
.. . .] used in determining the Price. 
If such [. . . *** . . .] for
JV Products of the applicable [. . .
*** . . .]


 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


C-5





















 


during such [. . . *** . . .] in
[. . . *** . . .] of [. . . *** . . .]% of the [. . . *** . . .] price used in
computing the JV [. . . *** . . .] in
paragraph 5, then Supplier shall [. .
.. *** . . .] JV with [. . . ***
.. . .] in an [. . . *** . . .] of
(a) the [. . . *** . . .] by
JV on such JV Product [. . . *** . .
..] (b) the Price for the relevant Product supplied by Supplier
during such [. . . *** . . .].


 


(c)           [. . . *** . . .] Efficiencies.  Within [.
.. . *** . . .] ([. . . *** . .
..]) days after the [. . . *** .
.. .] of each calendar year, or [.
.. . *** . . .], Supplier shall [.
.. . *** . . .], and [. . . ***
.. . .], together with [. . .
*** . . .] ([. . . *** . . .])
for the purpose of [. . . *** . . .].  Supplier agrees to [. . . *** . . .] ([. .
.. *** . . .]%) of any [. . .
*** . . .], by [. . . *** . .
..] as provided in this paragraph. 
If [. . . *** . . .], [. . . *** . . .], than the [. . . *** . . .] in calculating the
Price under paragraphs 2, 3, 4 and 5, then the Price for [. . . *** . . .] of the Product
(i.e. sales made [. . . *** . . .] calendar
year) shall be [. . . *** . . .] by
[. . . *** . . .] with
paragraph 4. above, [. . . *** . . .]%
of the [. . . *** . . .] between
the [. . . *** . . .]; provided, that, if [. . . *** . . .], the [. . . *** . . .], [. . . *** . . .], [. . . *** . . .].


 


(d)           Adjustments
for ECR Charges.  If an ECR Charge is
accepted by JV in accordance with Section 4.03(b) of the Agreement,
the Price for the relevant Product shall be adjusted to reflect any increases in
Expenses due to implementation of the relevant ECO, subject to a maximum
adjustment of the ECR Charge.


 


7.             Pricing Formula
for  Spares.  The price for all
Products purchased by JV as Spares shall be [. . . *** . . .] (as defined above) [. . . *** . . .]%.  For
purposes of this Agreement, “Spares”
shall mean [. . . *** . . .], [. . . *** . . .], [. . . *** . . .], and [. . . *** . . .], [. . . *** . . .] or [. . . *** . . .] (or [. . . *** . . .]) of the [. . . *** . . .] by JV to a
customer.


 










*                CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


C-6





















 


EXHIBIT A


 


PRODUCTS AND SPECIFICATIONS


 


[to be attached in accordance
with Section 4.01]


 


	
  Product

  	
   

  	
  Specification file

  reference

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  



 





















 


EXHIBIT B


 


[to be attached in accordance
with Section 4.01]


 


DELIVERY POINTS


 


LEAD TIMES


 





















 


EXHIBIT C


 


[to be attached in accordance
with Section 4.01]


 


PERFORMANCE TEST


 





















 


EXHIBIT D


 


[to be attached in accordance
with Section 4.01]


 


MATERIAL PACKAGING STANDARDS


 





















 


EXHIBIT E


 


[to be attached in accordance
with Section 12.01]


 


INTEGRATION AND SUPPORT SERVICES


 























 


EXHIBIT D


 


Form of Confidentiality Agreement


 





















 


CONFIDENTIALITY AGREEMENT


 


This
Confidentiality Agreement (this “Agreement”)
dated as of [                 ],
2005 (the “Effective Date”) by and
among Cymer, Inc., a Nevada corporation (“Cymer”), Carl Zeiss SMT AG a stock corporation organized under
the laws of Germany (“SMT”), Carl
Zeiss Industrielle Messtechnik GmbH, a limited liability company organized
under the laws of Germany (“IMT”),  and TCZ GmbH, a limited liability company
organized under the laws of the Canton of Zug, Switzerland (“JV”). 
Cymer, SMT, IMT and JV are each a “Party”
and together constitute the “Parties”
to this Agreement.


 


RECITALS


 


A.                                   Cymer, SMT and Carl Zeiss Laser Optics
Beteilungsgesellschaft mbH (have formed JV pursuant to a Joint Venture
Agreement dated July 15, 2005 (the “JV Agreement”)
to collaborate to develop, integrate, market, sell and support tools employing
a beam generated by an excimer laser to induce crystallization for Low
Temperature Poly-Silicon (LTPS) processing for the manufacture of flat panel
displays, including LCDs, LCD-SOGs and OLEDs, to engage in related application
development and to search for other business opportunities for process tools
for the manufacture of flat panel displays as described in the JV Agreement
(the “Collaboration”);


 


C.                                     IMT is an Affiliate of SMT, and as part of
the Collaboration, IMT will be developing certain components to be supplied to
JV by SMT or one of its Affiliates for use in JV’s products; and


 


D.                                    The Parties wish to protect confidential information
disclosed by the Parties to each other in the course of the Collaboration or administration
of this Agreement, the JV Agreement and the Joint Venture Documents (as used
herein, collectively the “JV Documents”).


 


NOW, THEREFORE, in consideration of the foregoing
recitals and the mutual promises hereinafter set forth, the Parties each agree
as follows:


 


ARTICLE 1

DEFINITIONS


 


Section 1.01                                Definition of Confidential
Information.


 


“Confidential Information”
means any non-public, confidential or proprietary information relating to a
disclosing Party or its products or business, whether or not technical in
nature, that (i) is clearly marked as “proprietary” or “confidential” or
with a similar legend by the disclosing Party at the time of disclosure, or (ii) if
disclosed orally, is identified as confidential at the time of disclosure and reduced
to a summary in writing, marked as proprietary or confidential, and provided to
the receiving Party within thirty (30) days of such oral disclosure.  Notwithstanding the foregoing, “Confidential Information” shall not include
information, technical data or know-how which: 
(i) is in the public domain at the time of disclosure or becomes
available thereafter to the public without restriction, and in either case not
as a result of


 


1.


 


D-1





















 


the act or omission of the receiving Party; (ii) is rightfully
obtained by the receiving Party from a third party without restriction as to
disclosure; (iii) is lawfully in the possession of the receiving Party at
the time of disclosure by the disclosing Party and not otherwise subject to
restriction on disclosure; (iv) is approved for disclosure by prior
written authorization of the disclosing Party; or (v) is developed
independently and separately by the receiving Party without use of the
disclosing Party’s Confidential Information.


 


Section 1.02                                Other Definitions.  Except as otherwise defined herein,
capitalized terms used herein shall have the same meanings attributed to them
as in the JV Agreement.


 


ARTICLE 2

PROTECTION OF CONFIDENTIAL INFORMATION


 


Section 2.01                                Protection of Confidential
Information.  For a
period of five (5) years from disclosure to the receiving Party by the
disclosing Party or until Confidential Information ceases to be Confidential
Information pursuant to Section 1.01(b), whichever is earlier, in case of
non-technical Confidential Information, or until Confidential Information
ceases to be Confidential Information pursuant to Section 1.01(b) in
the case of technical Confidential Information, and
except as otherwise provided in this Agreement, the receiving Party and its
Affiliates shall, and shall each use its reasonable efforts to cause its respective
representatives, officers, directors, employees, accountants, counsel,
contractors, and financing parties (collectively, “Agents”)
to, hold Confidential Information of the disclosing Party in confidence and only
to disclose such Confidential Information to its Agents and Affiliates who have
a need to know such Confidential Information in order to perform its duties and
obligations or exercise its rights under the JV Documents and who are under a
duty of confidentiality no less restrictive than the receiving Party’s duty
hereunder.  The receiving Party and its
Affiliates shall protect the disclosing Party’s Confidential Information from
unauthorized use, access, or disclosure in the same manner as the receiving
Party protects its own confidential or proprietary information of a similar
nature, but with no less than reasonable care, and will be responsible for any
breach of this Agreement by its Agents.


 


Section 2.02                                Restricted Use.  With respect to the Confidential Information
of each other Party, each Party and its Affiliates shall:


 


(a)                                  use the
Confidential Information only for the purposes of the Collaboration and only as
expressly permitted by the JV Documents or as reasonably necessary to perform
its duties and obligations or exercise its rights under the JV Documents;


 


(b)                                 not make copies
of or store Confidential Information or any part thereof except as expressly
permitted by the JV Documents or as reasonably necessary to perform its duties
and obligations or exercise its rights under the JV Documents;


 


(c)                                  reproduce and
maintain on any copies of any Confidential Information such proprietary legends
or notices (whether of disclosing Party or a third party) as are contained in
or on the original or as the disclosing Party may otherwise reasonably request;
and


 


2.


 


D-2





















 


(d)                                 not modify or
prepare derivative works from, or decompile, disassemble or reverse engineer
any Confidential Information except as expressly permitted by the JV Documents.


 


Section 2.03                                Terms of Agreements.  Except as otherwise provided
herein, no Party shall disclose the terms of the JV Documents to anyone other
than its Affiliates and Agents under a duty of confidentiality.


 


Section 2.04                                Permitted Disclosure.  Notwithstanding anything in
the foregoing to the contrary:


 


(a) The receiving Party and its Affiliates
shall be entitled to disclose Confidential Information of the disclosing Party and
the terms of the JV Documents to the extent that such disclosure is (i) reasonably
necessary for the receiving Party or its Affiliates to perform its duties and
obligations or exercise its rights under the JV Documents; (ii) required
by law or regulations, including without limitation as required in connection
with any tax reporting or filing by such Party or by applicable securities laws
or the rules of any stock exchange on which securities of such Party are
traded or any other applicable regulatory rule or regulation or
governmental agency directive; (iii) required by the order of a court or
other judicial or administrative body, provided that the receiving Party
notifies the disclosing Party of such required disclosure promptly and in
writing and cooperates with the disclosing Party, at the disclosing Party’s
reasonable request and expense, in any lawful action to contest or limit the
scope of such required disclosure, or (iv) in connection with a proposed
merger, financing, or sale of such Party’s business (provided
that any third party to whom such disclosure is made has signed a
confidentiality agreement prohibiting further disclosure of such information
and limiting use of such information solely to due diligence in connection with
such proposed merger, financing or sale, and provided
further that the exception in this item (iv) shall not apply to
technical Confidential Information).


 


(b) To the extent a
receiving Party is required to report the financial results of the JV on a
consolidated basis with its own financial results, such Party may disclose non-technical
Confidential Information of and relating to the JV in the same manner and to
the same extent as it discloses similar information regarding its own business.


 


ARTICLE 3
TERM AND TERMINATION.


 


Section 3.01                                Term.  The term of this Agreement will commence as of
the Effective Date and continue until terminated by mutual agreement of the
Parties.


 


Section 3.02                                Effect of Termination.  Each Party’s obligations
under this Agreement shall survive termination of this Agreement and shall
continue in full force and effect in accordance with its terms with respect to
all Confidential Information disclosed prior to termination of this Agreement.


 


3.


 


D-3





















 


ARTICLE 4

MISCELLANEOUS


 


Section 4.01                          Notices.  All notices, requests and other
communications to any Party or to the Parties hereto shall be in writing
(including facsimile or similar writing) and shall be given in conformance with
Section 12.01 of the JV Agreement.


 


Section 4.02                          Governing Law; Jurisdiction;
Waiver of Jury Trial; Dispute Resolution; Arbitration.  This Agreement shall give effect to and shall
conform with Sections 12.07, 12.08, 12.09, 12.10 of the JV Agreement and such
sections shall be incorporated by reference and applied to this Agreement mutatis mutandis.


 


Section 4.03                          Entire Agreement.  This Agreement, together with the other JV Documents
and the Exhibits hereto and thereto, and any documents referred to herein or
therein, constitutes the entire agreement of the Parties with respect to the
subject matter hereof.  [Note to draft: consider treatment of previous
NDAs and information previously disclosed under them.]


 


Section 4.04                          Severability.  If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party.  Upon such a determination, the parties shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible in an acceptable manner in order
that the transactions contemplated hereby be consummated as originally
contemplated to the fullest extent possible.


 


Section 4.05                          Amendment and Waiver.


 


(a)                            Any provision of this
Agreement may be amended or waived if, and only if, such amendment or waiver is
in writing and signed, in the case of an amendment, by each Party, or in the
case of a waiver, by the Party against whom the waiver is to be effective.


 


(b)                           No failure or delay by any
Party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege.  The rights and remedies
herein provided shall be cumulative and not exclusive of any rights or remedies
provided by law.


 


Section 4.06                          Headings.  Headings are for ease of reference only and
shall not form a part of this Agreement.


 


Section 4.07                          Counterparts.  This Agreement may be executed in any number
of counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.


 


4.


 


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IN WITNESS WHEREOF, the parties hereto have executed this Confidentiality Agreement as of
the date set forth in the first paragraph hereof.


 


	
   

  	
  TCZ GMBH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CYMER, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CARL ZEISS SMT AG

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CARL ZEISS INDUSTRIELLE
  MESSTECHNIK GMBH

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
											



 


5.


 


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EXHIBIT E


 


Description of Incremental Legal
and Administrative Costs


 


Costs of incorporation and
corporate maintenance in Switzerland


Costs of obtaining Swiss tax
rulings


Costs of preparing Swiss tax
filings


Any fees and expenses paid
to a Swiss-domiciled managing director


Costs of incorporation and
corporate maintenance of U.S. JV entity


Costs for transfer price
studies by Cymer


 


in each case to the extent of the excess over costs
that would be incurred if the Company was organized as U.S. limited liability
company


 





















 


EXHIBIT F


 


Swiss
Corporate Legal Implementation Timetable


 


	
  Action

  	
   

  	
  Time

  	
   

  	
  Description

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Signing

  	
   

  	
  Date hereof

  	
   

  	
  Signing of the Joint
  Venture Agreement and the IMT non-compete side letter agreement

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  As soon as reasonably
  practicable after signing of the Joint Venture Agreement

  	
   

  	
  Parties to transfer CHF
  12,000 (Cymer) and CHF 8,000 (Zeiss) to bank account for formation of GmbH

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Selection of Trustees

  	
   

  	
  Signing of Trust
  Agreements

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Identification of
  Address

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Incorporation

  	
   

  	
  After receipt of funds
  and selection of Trustees

  	
   

  	
  Incorporation of GmbH
  with funds referred to above; appointment of CEO and Swiss Trustees and
  granting of signatory powers

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Registration

  	
   

  	
  Incorporation + five
  business days

  	
   

  	
  GmbH to be entered into
  commercial register

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Closing

  	
   

  	
  Promptly after
  Registration

  	
   

  	
  Signing of Intellectual
  Property Agreement, Supply Agreements, Contribution Agreement,
  Confidentiality Agreement, IMT IP Side Letter, Administrative Services
  Agreements, R&D Services Agreements, Trademark License Agreement and
  Facilities Agreements

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Parties to make
  contributions according to Joint Venture Agreement; Cymer makes contribution
  of Cymer patents according to Contribution Agreement

  



 





















 


EXHIBIT G


 


Articles of Association (English Version)


 





















 


TRANSLATION


 


ARTICLES
OF INCORPORATION


 


of


 


TCZ GmbH


 


(TCZ
Sàrl)


 


(TCZ
L.L.C.)


 


I.                                       CORPORATE NAME, PRINCIPAL OFFICE AND
PURPOSE OF THE COMPANY


 


Article 1


 


Corporate
Name, Principal Office


 


Under
the name TCZ GmbH (TCZ Sàrl) (TCZ L.L.C.) (the “Company”) there exists a limited liability company which is
subject to these Articles of Incorporation and the provisions of Chapter 28 of
the Swiss Code of Obligations (CO). The principal office of the Company is in
Zug, Canton of Zug. The duration of the Company shall be perpetual.


 


Article 2


 


Purpose


 


The
purpose of the Company is to develop, integrate, market, sell and support tools
employing a beam generated by an excimer laser to induce crystallization for
Low Temperature Poly-Silicon (LTPS) processing for the manufacture of flat
panel displays, including LCDs, LCD SOGs and OLEDs, to engage in related
application development based on such products, and to search for other business
opportunities for process tools for the manufacture of flat panel displays.


 


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2/11


 


The
Company may open branch offices and subsidiaries in Switzerland and abroad. It
may also acquire participations in other companies in Switzerland and abroad.


 


The
Company may acquire, hold, use and sell real estate and intellectual property
rights in Switzerland and abroad.


 


The
Company may also engage in any commercial, financial or other activities which
are apt to favor the purpose of the Company or which are related to its
purpose.


 


II.                                   Capital
and Quotas


 


Article 3


 


Capital
and Quotas


 


The
capital of the Company is CHF 20,000.– (Swiss Francs twenty thousand). It is divided
into two quotas with a nominal value of CHF 12,000.– (Swiss Francs twelve
thousand) and CHF 8,000.– (Swiss Francs eight thousand).


 


The
capital is fully paid-in.


 


Article 4


 


Additional
Capital Payments


 


An
obligation to make additional capital payments by the members is strictly
excluded.


 


Article 5


 


Quota Register, List


 


A
quota register shall be kept as to all quotas reflecting the names of the
members, the amount of the individual quota and the contribution made on
account thereof, as well as every transfer of a quota and every other change of
these facts.


 


At the
beginning of each calendar year, a list is to be filed with the Commercial
Register, signed by the Managers and including the names of the members, the


 


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3/11


 


quotas
and the contributions made on account thereof or it has to be communicated that
since the filing of the previous list, there had been no changes.


 


Article 6


 


Transfer


 


The
assignment of a quota shall only be effective vis-à-vis the Company if the
Company has been notified and the assignment has been entered in the quota
register.


 


The
entry in the quota register may only be made with the consent of all members
representing at the same time 100 % of the capital.


 


In
order to be valid, the assignment of a quota as well as the obligation to
assign, require recording in a notarized deed.


 


The
transferor has to communicate in writing the transfer of a quota within 30 days
to the Company.


 


III.                               Corporate
Structure


 


Article 7


 


Corporate Bodies


 


The corporate bodies are:


 


a)                           the
Meeting of the Members;


 


b)                          the
Managers;


 


a)                                      The
Meeting of the Members


 


Article 8


 


Powers of
the Meeting of the Members


 


The
Meeting of the Members is the supreme body of the Company. It shall, in
particular, supervise the Managers. It has the following non delegable powers:


 


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4/11


 


1.                                       to
adopt and amend the Articles of Incorporation;


 


2.                                       to
appoint and remove the Managers;


 


3.                                       to
approve the appointment of further management and representatives of the
Company by the Managers;


 


4.                                       to
approve the balance sheet and the income statement and to determine the
allocation of profits;


 


5.                                       to
approve the assignment, division and reunion of quotas as well as to pass the
resolution concerning the repayment of quotas;


 


6.                                       to
issue any new quotas or admit any new members;


 


7.                                       to
discharge the Managers;


 


8.                                       to
assert claims for damages belonging to the Company against the corporate bodies
or members resulting from the incorporation or the management;


 


9.                                       to
take any actions in respect of the dissolution or liquidation of the Company;


 


10.                                 to
file or acquiesce to the filing of a petition in respect of the Company under
bankruptcy or insolvency laws, or the making of any assignment for the benefit
of creditors;


 


11.                                 to
acquiesce to any merger, consolidation, reorganization (including conversion)
or other business combination involving the Company or any of its affiliates
(other than of a wholly owned affiliate with or into another wholly owned
affiliate) or any acquisition of the Company or any of its affiliates by
another entity by means of any transaction or series of related transactions;


 


12.                                 to
acquiesce to any acquisition or disposition (in a single transaction or a
series of related transactions) of any assets, business or operations outside
the ordinary course of business in an aggregate value of more than
USD 100,000;


 


13.                                 to
adopt and amend a Business Plan and a product development process;


 


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5/11


 


14.                                 to
enter into or make any loans or advances to, guarantees for the benefit of, or
investments by the Company, in excess of USD 100,000, other than trade credit
in the ordinary course of business and investments in cash or cash equivalents
in accordance with an investment policy adopted by the Meeting of the Members;


 


15.                                 to
enter into any agreement or commitment (or series of related agreements or
commitments) outside the ordinary course of business involving an aggregate
value of more than USD 100,000 per year;


 


16.                                 to
enter into any transaction with any member of the Company or affiliate of any
member of the Company;


 


17.                                 to
license any of the Company’s intellectual property outside the ordinary course
of business or the commencing or settling of any litigation or claim involving
the Company’s intellectual property;


 


18.                                 to
commence or settle any material litigation or claim;


 


19.                                 to
pass resolutions concerning all matters which are reserved to the authority of
the Meeting of the Members by law or by the Articles of Incorporation or which
have not been allocated to the Managers.


 


Article 9


 


Calling,
Ordinary and Extraordinary Meetings of the Members


 


The
Meeting of the Members is called by the Managers. The Managers shall also call
a Meeting of the Members if one or more members whose combined holdings
represent at least 10 percent of the capital so demand in writing specifying
the items and the proposals to be submitted to the Meeting.


 


The
Ordinary Meeting of the Members shall be held each year within six months after
the close of the fiscal year. Extraordinary Meetings of the Members shall be
called, whenever necessary.


 


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6/11


 


Article 10


 


Form of
Notice


 


To
call ordinary or extraordinary Meetings of the Members written notices shall be
sent by ordinary mail or fax to the addresses of the members registered in the
quota register.


 


Article 11


 


Notice
Deadline, Documents, Non Properly Noticed Items


 


The
notice is effected at least 5 days before the date of the Meeting of the Members.
The notice of a meeting shall state the place, date and hour, the items on the
agenda and the proposals of those members who demanded that the Meeting of the
Members be called or that items be included in the agenda.


 


No
resolution shall be passed on items for which no proper notice has been given;
this prohibition does not apply to proposals to call an Extraordinary Meeting
of the Members. No prior notice is required for proposals concerning items
included in the agenda and discussions that do not result in the adoption of
resolutions.


 


Article 12


 


Meeting
of All Members


 


All
members may hold a Meeting of the Members without observing the formalities
required for calling a meeting, unless objection is raised. At such a meeting,
discussions may be held and resolutions passed on all matters within the scope
of the powers of the Meeting of the Members as long as all members are present.


 


Article 13


 


Resolution
by Written Consent


 


If no
member requests that a Meeting of the Members be held, the members may also
pass any resolutions within the powers of the Meeting of Members by written,
circular resolution.


 


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7/11


 


Article 14


 


Right to
Vote, Representation


 


The
voting right of each member is proportionate to the value of his quota, whereby
each CHF 1’000.– (Swiss francs one thousand) entitle to one vote.


 


The
members may be represented at the Meeting of the Members by any person who is
so authorized by a written proxy. A proxy need not be a member.


 


Article 15


 


Chairman,
Resolutions


 


The
Meeting of the Members shall designate the Chairman of the Meeting. The
Chairman of the Meeting shall designate a Secretary who needs not be a member.


 


Unless
mandatory provisions of Swiss law provide otherwise, the approval of all
members representing at the same time 100 % of the capital is required for
the adoption of resolutions or for elections.


 


Elections
and votes shall take place by a show of hands provided that neither the
Chairman nor one of the members requests a secret ballot.


 


Article 16


 


Minutes


 


Minutes
of meetings recording the deliberations and containing the resolutions adopted and
elections made shall be kept. The Minutes shall be signed by the Chairman and
the Secretary. In case of written, circular resolutions, the writings are filed
instead of minutes.


 


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8/11


 


b)                                      The
Managers


 


Article 17


 


Eligibility


 


The
Management shall consist of three persons who can be members or representatives
of legal entities or business associations that are members or third persons.


 


At
least one manager has to be a Swiss resident.


 


Article 18


 


Term,
Organization


 


The
Managers are elected by the Meeting of the Members for a term of two years,
beginning with the day of their election and ending on the day of the next
Ordinary Meeting of the Members. If a Manager is replaced during his term, his
successor shall continue in office until the end of his predecessor’s term.


 


The
Managers may be re-elected without limitation. They can be removed at any time
independently from their term. They may resign at any time unless at an improper
time.


 


The
Management determines its own organization.


 


Article 19


 


Powers


 


The
Managers shall be responsible for managing the following activities of the
Company, in accordance with the Company’s then current Business Plan as in
effect from time to time:


 


1.                                       sales
and marketing;


 


2.                                       application
development:


 


3.                                       supply
management;


 


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9/11


 


4.                                       service
and support to the Company’s customers;


 


5.                                       systems
integration;


 


6.                                       business
development and


 


7.                                       accounting,
finance, and general and administrative functions.


 


Subject
to the approval of the Meeting of the Members, the Managers shall appoint
further management and representatives of the Company, grant the respective
signatory powers and determine the kind of power of signature, to the extent
that they shall be entered to the Commercial Register.


 


Article 20


 


Calling
of Meeting, Resolutions, Minutes


 


Meetings
of the Managers shall be called by a member of the Management whenever the need
arises, at least once a year.


 


The
adoption of resolutions requires the approval of all Managers who are present
at the meeting. Resolutions may also be passed by written consent of all
Managers to a proposal, unless a Manager requests oral deliberation.


 


Minutes
of meetings recording the deliberations and containing the resolutions adopted
shall be kept. In case of written, circular resolutions, the writings are filed
instead of minutes.


 


IV.                              Fiscal
Year, Allocation of Profits


 


Article 21


 


Fiscal
Year, Balance Sheet and Income Statement


 


The
fiscal year shall end on December 31  of each year. The books
have to be closed upon the end of a fiscal year.


 


The
balance Sheet and the income Statement have to be prepared according to art.
662 et seq. CO.


 


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Article 22


 


Allocation
of Annual Profits, Reserves


 


Subject
to the legal provisions regarding distribution of profits, the profit as shown
on the balance sheet shall be allocated firstly to the reserve fund. The
remainder is at the disposal of the Meeting of the Members at its discretion
within the legal framework. In addition to the legal reserves, the Meeting of
the Members may create supplemental reserves and decide on their purpose and
use. Each member shall be entitled to the Company’s profits and other
distributions in proportion to the quota paid into by it.


 


V.                                  Dissolution,
Liquidation


 


Article 23


 


Dissolution,
Liquidation


 


The
Meeting of the Members may at any time resolve the dissolution and liquidation
of the Company in accordance with the provisions of the law and of the Articles
of Incorporation.


 


The
liquidation shall be carried out by the Managers to the extent that the Meeting
of the Members has not entrusted the same to other persons. At least one of the
liquidators has to be Swiss resident and must be entitled to represent the
Company. The liquidators are entitled to call the Meeting of the Members.


 


The
liquidation of the Company shall take place in accordance with Art. 742 et seq.
CO. The liquidators are authorized to dispose of the assets (including real
estate) by way of private contract.


 


After
all debts have been satisfied, the net proceeds shall be distributed among the
members in proportion to the amounts paid-in.


 


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VI.                              Notices, Publications


 


Article 24


 


Notices,
Publications


 


Member
communications of the Company shall be sent by registered mail to the addresses
of the members registered in the quota register.


 


All
publications of the Company shall be made in the Swiss Official Gazette of
Commerce.


 


 


[Place,
Date]


 


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EXHIBIT H


 


Form of Swiss Trust Agreement


 





















 


Trust
Agreement


 


between


 


Cymer, Inc., • OR Carl Zeiss, •


 


(hereinafter “Appointing Member”)


 


and


 


•


(hereinafter “Trustee”)


 


WHEREAS Cymer and Carl
Zeiss (the “Two Members”) are quota holders of TCZ GmbH (hereinafter “Company”).
The [. . . *** . . .] will [. . . *** . . .] appoint [. . . *** . . .] of the management (Geschäftsführer) to act as [. . . *** . . .] Geschäftsführer of the Company together with
the CEO. The [. . . *** . . .] will
[. . . *** . . .] instruct [. . . *** . . .] members of the
management [. . . *** . . .] appointed
by them.


 


NOW, therefore, the
parties agree as follows:


 


1.                                       The
Appointing Member hereby appoints the Trustee to be a member of the management
of the Company (Geschäftsführer),
in his capacity as an individual, and not as representative, employee, member,
shareholder or partner of a corporate entity or partnership.


 


The
Trustee agrees to serve [. . . *** . .
..] as manager of the Company, with [. . . *** . . .] signatory power.


 


2.                                       The
Trustee shall only act on [. . . *** .
.. .] instructions from the [. .
.. *** . . .].


 


In
carrying out the instructions of the [.
.. . *** . . .], the Trustee shall comply with the rules imposed by
law and the Articles of Incorporation of the Company, and the Trustee shall
inform the [. . . *** . . .] if
the instructions given violate such rules.


 


3.                                       If
the [. . . *** . . .] are not
able to, or if they fail to, timely issue instructions, or if the interest of
the Company requires immediate action and the Trustee is not able to obtain
instructions, then the Trustee shall to the best of his knowledge act in the
interest of the Company and in accordance with Article 2, Paragraph 2 of
this Agreement.


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


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4.                                       The
Appointing Member shall inform the Trustee on the business activities of the
Company on a [. . . *** . . .] basis
and at any time on the Trustee’s request and immediately in case of
extraordinary events.


 


5.                                       During
the term of this Agreement and following its termination, the Appointing Member
shall neither directly nor indirectly assert any claims against the Trustee
including, but not limited to, claims for Directors’ liability; provided,
however, that the Appointing Member may assert claims for intentional misconduct
or gross negligence. The Appointing Member hereby waives any claims as against
the Trustee and releases the Trustee from any responsibility arising out of or
in connection with the Trustee’s actions or omissions in the management of the
Company made in accordance with the [.
.. . *** . . .] instructions or otherwise in accordance with this Agreement.


 


7.                                       During
the term of this Agreement and following its termination, the Appointing Member
shall, on Trustee’s first demand, release and hold the Trustee harmless (i) from
all liabilities of whatever nature incurred by the Trustee in the course of the
due performance of this Agreement or pursuant to provisions of law and (ii) from
all claims, including, but not limited to claims for Directors’ liability
asserted against the Trustee out of, or in connection with, this Agreement or
the Trustee’s office as manager of the Company; provided, however, that the
Appointing Member is not bound to release and hold the Trustee harmless in case
of the Trustee’s intentional misconduct or gross negligence.


 


The Appointing
Member shall assist the Trustee in all legal proceedings and shall on Trustee’s
first request take over such proceedings to the extent permitted by applicable
procedural rules.


 


8.                                       In
view of the statutory provisions on Swiss withholding tax and the responsibility
of the management related thereto, the Appointing Member shall, at any time on
Trustee’s first demand, make available to the Company in Switzerland liquid
assets or appropriate security in an amount equal to the applicable withholding
tax on the Company’s reported and accrued earnings in the current business
year.


 


9.                                       For
his services as manager, the Trustee shall receive [. . . *** . . .] fee of CHF               
plus reimbursement of all social charges and expenses levied or incurred in
connection therewith.


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


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The
fee covers the Trustee’s work and time in connection with the preparation and
attendance of management and other meetings in Switzerland. The Appointing
Member shall be responsible for due payment of fees and reimbursements.


 


10.                                 The
Appointing Member may at any time terminate this Agreement or have the Trustee
removed from the management by the Members’ meeting. If the Appointing Member
terminates this Agreement, the Trustee must resign from the management.


 


The
Trustee may at any time resign from the management and have his registration in
the Commercial Register canceled.


 


The
Appointing Member shall cause the Company to decide on the Trustee’s discharge
at the next ordinary Member’ meeting following the termination of the Trustee’s
office as member of the management, at the latest within [. . . *** . . .] ([. . . *** . . .]) [. . . *** . . .] following the term
of the relevant fiscal year.


 


11.                                 This
Agreement is governed by Swiss substantive law.


 


All
disputes arising out of or in connection with this Agreement shall be resolved,
to the exclusion of the ordinary courts, by a sole arbitrator in accordance
with the International Arbitration Rules of the [. . . *** . . .] Chamber of Commerce. The seat of the arbitral
tribunal is [. . . *** . . .].


 


               ,
               
[Place, Date]


 


 


	
  The Appointing
  Member:

  	
   

  	
  The Trustee:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
					



 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


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EXHIBIT I


 


Form of IMT IP Side Letter


 





















 


Cymer, Inc.


17075 Thornmint Court


San Diego, CA 92127-1712


USA


 


Carl Zeiss SMT AG


Carl-Zeiss-Strasse 22


73447 Oberkochen, Germany


 


TCZ GmbH


 


July    , 2005


 


Re:                        TCZ GmbH — Intellectual Property
Agreement


 


Ladies and Gentlemen:


 


This is to acknowledge our mutual understanding with
respect to certain matters set forth in the Intellectual Property Agreement
dated as of the date hereof  (the “Intellectual Property Agreement”) among TCZ GmbH, a limited
liability company organized under the laws of Switzerland (the “JV”), Carl Zeiss SMT AG, a stock corporation organized under
the laws of Germany (“Zeiss SMT”) and
Cymer, Inc., a Nevada corporation (“Cymer”).  Unless otherwise defined herein, capitalized
terms used herein shall have the meanings assigned to them in the Intellectual
Property Agreement.


 


Whereas Cymer and Zeiss Laser Optics
Beteiligungsgesellschaft mbH, a limited liability company organized under the
laws of Germany (“Zeiss LOB”), have formed JV to
develop, integrate, market, sell and support tools employing a beam generated
by an excimer laser to induce crystallization for Low Temperature Poly-Silicon
(LTPS) processing for the manufacture of flat panel displays, including LCDs,
LCD SOGs and OLEDs, to engage in related application development and any
products, if any, within the scope of a Business Plan approved by JV (the “Collaboration”).


 


Whereas
Carl Zeiss Laser Optics GmbH, a limited liability company organized under the
laws of Germany (the “Supplier”),
will, pursuant to the Supply Agreement dated as of the date hereof (the “Supply Agreement”) between JV and Supplier, supply certain
products to JV and its Affiliates for incorporation into JV’s Products and,
pursuant to Section 3.01 thereof, will use Carl Zeiss IMT GmbH, a limited
liability company organized under laws of


 


I-1





















 


Germany (“IMT”), as its exclusive supplier of Core
Components for Stages (each as defined in the Supply Agreement unless otherwise
agreed in writing by JV), and as a result thereof IMT will participate in the
Collaboration.


 


Whereas
JV, Zeiss SMT and Cymer are entering into the Intellectual Property Agreement
in order to set forth the intellectual property rights in the intellectual
property created in connection with the joint venture and the Collaboration
described above , including intellectual property that may be created by IMT.


 


NOW,
THEREFORE, for good and valuable consideration receipt of which is hereby
acknowledged, we hereby agree as follows:


 


(1)             All right, title
and interest in and to Foreground Technology made, conceived or reduced to
practice by IMT or any Person under the control of IMT or in and to Disclosed
Know-How disclosed by IMT or any Person under the control of IMT shall be owned
by Zeiss SMT and is hereby assigned by IMT to Zeiss SMT. “Foreground Technology” means Patents and Know-How relating to
Products that are made, conceived or reduced to practice in the course of
performance of the Collaboration by a Party or any of its Affiliates, including
without limitation IMT or any Person under the control of IMT.  Foreground Technology does not include
Background Technology.  “Disclosed Know-How” means Know-How of one Party or its
Affiliates, including without limitation IMT or any Person under the control of
IMT, that is disclosed to another Party or its Affiliates in the course of
performance of the Collaboration.


 


(2)             IMT acknowledges that, pursuant to the Intellectual
Property Agreement, SMT shall be obligated to grant certain licenses and other
rights to JV, Cymer and their respective Affiliates and hereby agrees and
consents to the granting of such licenses and other rights and the performance
by SMT of all such obligations insofar as they relate to the Foreground
Technology or Disclosed Know-How described in paragraph (1).  The foregoing sentence shall not prevent
Zeiss SMT from granting to IMT or any Person under the control of IMT licenses
with respect to Foreground Technology and Disclosed Know-How owned by SMT
pursuant to the Intellectual Property Agreement for use, subject in all
respects to any exclusive licenses granted by SMT pursuant to Article 4 of the Intellectual Property Agreement.


 


(3)             IMT agrees to execute and deliver such additional
assignments and other documents and instruments as may be reasonably requested
by JV, Cymer or SMT from time to time in order to confirm or implement SMT’s ownership of Foreground Technology and
Disclosed Know-How and the licenses and rights contemplated by this letter
agreement.


 


I-2





















 


This
Agreement shall be governed by and construed in accordance with the laws of [. . . *** . . .] (without regard to
conflicts of laws principles).


 


We
hereby irrevocably waive any and all right to trial by jury in any legal proceeding
arising out of or related to this Agreement or the matters contemplated
hereby.  Any dispute, controversy or
claim arising out of or in connection with this Agreement or the alleged
breach, termination or invalidity thereof shall be settled by the dispute
resolution process set forth in Section 7.12 of the Intellectual Property Agreement or
otherwise by the joint agreement of the parties hereto, or else shall be
finally settled under Rules of Arbitration of the International Chamber of
Commerce in accordance with Section 7.12 of the Intellectual Property Agreement.


 


* * * * *


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 


I-3





















 


IN
WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date set forth above.


 


	
   

  	
  Carl Zeiss Industrielle Messtechnik GmbH

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  



 


	
  CONFIRMED AND AGREED
  TO:

  
	
   

  
	
  Cymer, Inc.

  
	
   

  
	
   

  	
   

  
	
  By:

  
	
  Name:

  
	
  Title:

  
	
   

  
	
   

  
	
  Carl Zeiss SMT AG

  
	
   

  
	
   

  	
   

  
	
  By:

  
	
  Name:

  
	
  Title:

  



 


	
   

  	
  Joined by TCZ GmbH as the JV as

  
	
   

  	
  of                 ,
  2005

  
	
   

  	
   

  
	
   

  	
  TCZ GMHB

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


I-4





















 


SCHEDULE A


 


Business Plan


 


The
Business Plan is the TCZ Business Plan dated [. . . *** . . .] previously
approved by Cymer and Zeiss LOB.


 










*                 CONFIDENTIAL
TREATMENT REQUESTED UNDER 17 C.F.R. §§ 200.80(b)(4) AND 240.24b-2(b)(1)


 























 





 


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TCZ GmbH


 


A Joint Venture between
Cymer and Carl Zeiss SMT


Business Plan


[. . .***. . .]


 


This is the initial Business
Plan approved by the Members of the TCZ GmbH. 
Certain information herein is based on information known as of [. . .***. . .] and may change over time. This Business Plan is subject to annual
review and approval by the Board of Members of TCZ GmbH in accordance with the
Joint Venture Agreement.


 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


March 31, 2004


©Copyright 2004 Cymer, Inc.


 



















 


TCZ Logo Design


 


[LOGO]


 



















 


Business
Opportunity/Rationale


 


The growing demand for high
resolution, small screen flat panel displays, and the continuous effort by flat
panel display makers to reduce cost and increase performance by integrating
discrete logic devices into Liquid Crystal Display (LCD) panels, and the
emergence of Organic Light Emitting Diode (OLED) displays as a promising
technology has lead to increased demand for a manufacturing process capability
referred to as Low Temperature Polycrystalline Silicon (LTPS).  TCZ believes that working collaboratively
with Suppliers it  can develop a
next-generation amorphous silicon crystallization tool that will enable the
creation of high yield, high performance polycrystalline silicon Thin Film
Transistor (TFT) device structures to accelerate the integration of discrete
logic devices for lower cost, higher reliability, higher performance LCD
displays, as well as meet the process development and production needs for OLED
displays.  Such a product is likely to
result in significant revenue and market share gains in the market for LTPS
process tools, and provide an advantageous point of entry into the larger
market for flat panel display manufacturing tools.


 


November 4, 2004


©Copyright 2004 Cymer, Inc.


 


3



















 


Market & Competitive Analysis


 


4



















 


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


 


	
  [

  	
   

  	
   

  	
  [. . .***. . .]

  	
   

  
	
   

  	
   

  	
   

  	
  •     [.
  . .***. . .].

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  	
  •     [.
  . .***. . .].

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [

  	
   

  	
   

  	
  [. . .***. . .]

  	
   

  
	
   

  	
   

  	
   

  	
  •     [. . .***. . .].

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  	
  •     [. . .***. . .].

  	
   

  
	
   

  	
   

  	
   

  	
  •     [. . .***. . .].

  	
   

  
	
   

  	
   

  	
  ]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [

  	
   

  	
   

  	
  [. . .***. . .]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  	
  •     [...***...]

  
	
   

  	
   

  	
   

  	
  •      [...***...]

  
	
   

  	
   

  	
  ]

  	
  •      [...***...]

  



 










*                 Confidential Treatment Requested
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


5



















 


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


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  
	
   

  	
   

  	
   

  
	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment Requested
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


6



















 


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


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


 


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


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  
	
   

  	
   

  	
   

  
	
  [. . .***. . .]

  
	
   

  	
   

  	
   

  
	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment Requested
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


7



















 


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


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  
	
   

  	
   

  	
   

  
	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment Requested
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


8



















 


TCZ Market Share & Tool
Forecast


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  
	
   

  	
   

  	
   

  
	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment Requested
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


9



















 


LTPS
Competitive Summary


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment Requested
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


10



















 


Customer
Summary


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment Requested
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


11



















 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment Requested
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


12



















 


[...***...]


 


	
     •    [...***...]

  	
  •      [...***...]

  
	
  •     [...***...]

  	
  •     [...***...]

  
	
  •      [...***...]

  	
  •     [...***...]

  
	
  •      [...***...]

  	
  •     [...***...]

  
	
  •      [...***...]

  	
  •     [...***...]

  
	
  •      [...***...]

  	
   

  
	
  •      [...***...]

  	
  •      [...***...]

  
	
   

  	
  •     [...***...]

  
	
   

  	
  •     [...***...]

  
	
       •    [...***...]

  	
  •     [...***...]

  
	
  •     [...***...]

  	
  •     [...***...]

  
	
  •     [...***...]

  	
  •     [...***...]

  
	
  •     [...***...]

  	
  •     [...***...]

  



 










*                 Confidential Treatment Requested
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


13



















 


Other Potential FPD Product Opportunities for TCZ


 


•                  [...***...]


•                  [...***...] ([. . .***. . .]) [...***...]


 










*                 Confidential Treatment Requested
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


14



















 


Organization & Management


 


15



















 


TCZ Organization


 


Functions: [. . .***. . .], [...***...], [...***...], [. . .***. . .], [. . .***. . .], [...***...], [...***...], [...***...], [...***...]


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  
	
   

  	
   

  	
   

  
	
  Location Key:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  [                                                . . .***. . .                                                ]

  	
   

  



 










*                 Confidential Treatment Requested
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


16



















 


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


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  
	
   

  	
   

  	
   

  
	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment Requested
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


17



















 


[...***...] Function & Organization


 


Functions: [...***...], [...***....], [...***...],
[...***...]


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  
	
   

  	
   

  	
   

  
	
  Location key:

  	
   

  	
   

  
	
  [                 . . .***. . .
                   ]

  	
   

  	
   

  



 










*                 Confidential Treatment Requested
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


18



















 


TCZ Operations Headquarters in San
Diego


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment Requested
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


19



















 


[...***...]


 


•                  [...***...]


•                  [...***...] ([...***...]) [...***...]


 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


20



















 


Product Roadmap & Work Plan


 


21



















 


[. . .***. . .]


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


22



















 


[. . .***. . .]


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


23



















 


Work Plans For TCZ, Cymer, and Zeiss


 


Per JV Agreement, paragraph 6.03(a),
Work Plans with respect to each distinct area of inquiry for each party will
contain (I) [...***...] for the Project and/or the [...***...]; (2) a
description of [...***...], [...***...] and [...***...] to be generated during the Project;
(3) [...***...] for [...***...] of the Members during such Project including, but
not limited to, [...***...], [...***...], and [...***...]; and (4) [...***...].


 


It is anticipated that this
information will be [...***...] and [...***...] at their regularly scheduled meeting in
[...***...].


 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


March 31, 2004


©Copyright 2004 Cymer, Inc.


 


24





















 


 


 


Areas of Responsibility


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


November 4, 2004


©Copyright 2004 Cymer, Inc.


 


25



















 


Major Deliverables by Party


 


	
  TCZ

  
	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  
	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  
	
  CYMER

  
	
  [...***...], [...***...],
  and [...***...]

  	
   

  	
  [...***...]

  	
   

  
	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  
	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  
	
  ZEISS

  
	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  
	
  [...***...]

  	
   

  	
  [...***...]

  	
   

  



 


•                  [...***...]


•                  [...***...]. 
[...***...].


 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


26



















 


[...***...]
and [...***...]


 


Per Supply Agreement,
paragraph 6.01, section 3, and paragraph 7.01.


 


It is anticipated that this
information will be [...***...] and [...***...] at their regularly scheduled meeting in
[...***...].


 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


March 31, 2004


©Copyright 2004 Cymer, Inc.


 


27





















 


 


Product Mix Scenarios


 


Per Supply Agreement,
paragraph 7.01.


 


It is anticipated that this
information will be [...***...] and [...***...] at their regularly scheduled meeting in
[...***...].


 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


28





















 


 


Financial Projections


 


November 4, 2004


©Copyright 2004 Cymer, Inc.


 


29



















 


TCZ GmbH – [...***...]
Balance Sheet


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


30



















 


TCZ
GmbH Inc. – [...***...] P&L


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


31



















 


TCZ GmbH – [...***...] Cash Flow


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


32



















 


TCZ GmbH - Required Capital
Contributions Summary


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 


Assumptions:


 


1.              [...***...]


2.              [...***...]


3.              [...***...]


 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


33



















 


TCZ GmbH – Detailed [...***...] Budget


[...***...]


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 


Note: [...***...]


 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


34



















 


TCZ GmbH – Detailed [...***...] Budget


[...***...]


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


35



















 


TCZ GmbH – Detailed [...***...] Budget


[...***...]


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


36



















 


TCZ GmbH – Detailed [...***...] Budget


[...***...]


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


37
















TCZ
GmbH – Detailed [...***...] Budget


[...***...]


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


38



















 


TCZ GmbH – Required Capital
Contributions


 


	
  [

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  . . .***. . .

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ]

  



 


[...***...]


 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


39



















 


[...***...]


 


•      [...***...]


•      [...***...]


•      [...***...]


•      [...***...]


•      [...***...]


•      [...***...]


•      [...***...]


•      [...***...]


•      [...***...]


•      [...***...]


 










*                 Confidential Treatment
Requested under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)


 


40



















 


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March 31, 2004


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