**Exhibit 10.27**

 

***TEXT OMITTED AND FILED SEPARATELYCONFIDENTIAL TREATMENT REQUESTEDUnder 17 C.F.R. Sections 200.80(b)(4) and 240.24b-2

 

**PATENT SUBLICENSE**

**AGREEMENT**

 

**THIS PATENT SUBLICENSE AGREEMENT** (“SublicenseAgreement”), made as of this 7 day of Nov., 2003 (the “Effective Date”), by andbetween **SRL-EUV, LLC,**aMassachusetts limited liability company with principal offices at 15 WardStreet, Somerville, Massachusetts 02143 (“EUV”) and **CYMER, INC.,**a Nevada corporation, with principal offices at17075 Thornmint Court, San Diego California 92127 (“Cymer”).

 

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

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**WHEREAS,** Cymer sublicensed toScience Research Laboratory, Inc., a Massachusetts corporation with principaloffices at 15 Ward Street, Somerville, Massachusetts 02143 (“SRL”), by separateagreement dated May 14, 2001 (the “2001 Patent Sublicense Agreement”) certainrights held by Cymer under the Patent License Agreement in order for SRL todevelop certain technologies in the Field of Use; and

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**WHEREAS,** EUV is the assignee of SRLunder the 2001 Patent Sublicense Agreement and holds all of SRL’s rights underthe 2001 Patent Sublicense Agreement a copy of which is annexed hereto asExhibit “A”; and

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**WHEREAS,** EUV is willing to grant to Cymer a sublicense to all rights heldby EUV under the 2001 Patent Sublicense Agreement pursuant to the terms andconditions set forth below.

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

 

**ARTICLE I**

 

**DEFINITIONS**

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

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

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

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

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

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

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**1.7**          **Light Source**shall mean any source ofelectromagnetic radiation whether coherent or incoherent, whether a laser or alamp.

 

***CONFIDENTIAL TREATMENT REQUESTED

 

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

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**1.9**          **Metrology**shall mean the art of measuringdistances or surface topology.

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**1.10**        **Product(s)** shall mean any product in theField of Use.

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

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

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**1.13**        **Sublicensed Patents**shall mean the patentsor patent applications (i) which have been licensed to Cymer under thePatent License Agreement and which have been sublicensed by Cymer to EUV asassignee of SRL under the 2001 Patent Sublicense Agreement; and(ii) which, in the absence of the rights being granted under thesublicense granted by EUV to Cymer under this Sublicense Agreement, would beinfringed by Cymer’s manufacture, sale or use of the Product(s) (as definedherein) at any time during the Term of this Sublicense Agreement.

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**1.14**        **VUV** shall mean vacuum ultravioletwavelengths in the region of the electromagnetic spectrum ranging from 120nm upto but not exceeding 150nm.

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**1.15**        **Term** shall have the meaning as set forth inSection 6.1 below.

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**ARTICLE II**

 

**GRANT OF SUBLICENSE**

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**2.1**          EUVhereby grants to Cymer an irrevocable exclusive, worldwide, royalty-free sublicense, with right to furthersublicense pursuant to Section 2.3: (x) to use the SublicensedTechnology for the purpose of making, having made, selling or having soldProducts in the Field of Use; and (y) under the Sublicensed Patents tomake, have made, use and sell the Product(s) in the Field of Use.

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**2.2**          Cymershall not obtain any rights of any kind in the Sublicensed Patents or theSublicensed Technology except as specifically set forth in this SublicenseAgreement.

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**2.3**          Cymershall have the right to further sublicense the Sublicensed Technology andSublicensed Patents.  Cymer shallprovide EUV with a significantly completed draft of each further sublicenseagreement just prior to its execution; provided, however, that EUV shall haveno right to object to any term or condition of such sublicense.  Cymer agrees to require its FurtherSublicensees to maintain the same confidentiality obligations as required ofCymer pursuant to Article 8, below.

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

 

***CONFIDENTIAL TREATMENTREQUESTED

 

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**ARTICLE III**

 

**IMPROVEMENTSAND INVENTIONS**

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**3.1**          Theparties’ respective rights of ownership with respect to improvements andinventions shall be as set forth in Article III of the Patent LicenseAgreement.

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**3.2**          Theparties’ acknowledge and agree that Section 3.2 of the 2001 Patent SublicenseAgreement shall no longer be of any force or effect.

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**ARTICLE IV**

 

**PATENT PROSECUTION AND INFRINGEMENT**

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

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**4.2**          Eachparty will promptly notify the other party of any written claim received by italleging infringement by a Product of the proprietary rights or patents of athird-party.  Cymer shall assume thedefense of any action relating to any such allegation of patent infringement.

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

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**4.4**          Withinthe Field of Use, if Cymer fails to bring an infringement action as provided inSection 4.3 above within sixty (60) days after notice of allegedinfringement, EUV shall be permitted to take any action it deems necessary, atits sole cost and expense, in order to protect its research, royalty and otherpayment interests.

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**4.5**          Ifeither party brings an infringement action under this Agreement, the otherparty shall cooperate fully, including if required to bring such action, thefurnishing of a power of attorney.

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**ARTICLE V**

 

**REPRESENTATIONS AND WARRANTIES**

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**5.1**          **EUV**. EUV represents and warrants that: (i) it has full power to enter into this Sublicense Agreement;(ii) it has not previously granted and will not grant any rights inconflict with the rights and licenses granted herein; (iii) it has obtained allnecessary corporate approvals to enter and execute into this SublicenseAgreement; and (iv) it shall fully comply with the requirements of any and allapplicable federal, state, local and foreign laws, regulations, rules andorders of any governmental body having jurisdiction over the activitiescontemplated by this Sublicense Agreement.

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

 

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

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**ARTICLE VI**

 

**TERM**

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

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**6.1.1**       **Products**. As to each Product, in each country, worldwide, unless earlierterminated in accordance with this Article 6, on the date that neither themanufacture, sale nor use of such Product would be covered by a SublicensedPatent in such country.

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**6.1.2**       **Entire Agreement**.  This Sublicense Agreement shall expire in its entirety upon theexpiration of this Sublicense Agreement with respect to all Products in allcountries, worldwide.

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**6.1.3**       **Expiration of Patent Sublicense**.  This Sublicense Agreement shall expire inits entirety upon the expiration of the Patent License Agreement with respectto all Products, in all countries, worldwide.

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

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

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**ARTICLE VII**

 

**INDEMNIFICATION**

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**7.1**          **Indemnification by Cymer**.  Cymer shall indemnify, defend and holdharmless EUV, its directors, officers, employees, agents, successors andassigns from and against all liabilities, expenses or costs (includingreasonable attorneys’ fees and court costs) arising out of any claim,complaint, suit, proceeding or cause of action against any of them by athird-party alleging (i) the negligent or intentionally wrongful acts oromissions of Cymer; (ii) any breach by Cymer of any of its representationsor warranties set forth in Article V of this Sublicense Agreement; or(iii) breach of any warranty relating to the Products including, but notlimited to defects in design, manufacturing or claims under any theory ofproduct liability.

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**7.2**          **Indemnification by EUV**.  EUV shall indemnify, defend and holdharmless Cymer, its directors, officers, employees, agents, successors andassigns from and against all liabilities, expenses, and costs (includingreasonable attorneys’ fees and court costs) arising out of any claim,complaint, suit, proceeding or cause of action against any of them by athird-party alleging (i) the negligent or intentionally wrongful acts oromissions of EUV; or (ii) any breach by EUV of any of its representationsor warranties set forth in Article V of this Sublicense Agreement.

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

 

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

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**ARTICLEVIII**

 

**CONFIDENTIALITY**

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**8.1**          **Confidential Information**.  The parties may from time to time discloseto each other Confidential Information in connection with this Agreement.  “Confidential Information” shall mean anyinformation disclosed by one party to the other party which information is notgenerally known to the public and may include by way of example, but withoutlimitation (a) information concerning the disclosing party’s management,financial condition, financial operations, purchasing activities, costs ofproducts, sales activities, marketing activities and business plans, (b)information concerning or resulting from the disclosing party’s research anddevelopment work, including, but not limited to, improvements, discoveries,inventions and new product ideas, (c) information of the disclosing partyconcerning actual or potential vendors or customers, (d) the disclosing party’scomputer programs, including source code, object code, algorithms, methods,structure and related information including diagrams, flow charts, designs,specifications, manuals, descriptions, instructions, explanations andimprovements, and (e) information concerning the disclosing party’s products,including plans, blueprints, parts and assembly drawings, specifications,descriptions, designs, diagrams, dimensions, tolerances, parts and components,in each case, whether delivered orally, in writing, electronically or throughany other media.  Notwithstanding theforegoing or anything herein to the contrary, Confidential Information shallnot include any information that, in each case the receiving party can prove bywritten documentation:  (i) was alreadyknown to the receiving party, other than under an obligation ofconfidentiality, at the time of disclosure; (ii) was generally available to thepublic or otherwise part of the public domain at the time of its disclosure tothe receiving party; (iii) became generally available to the public orotherwise part of the public domain after its disclosure and other than throughany act or omission of the receiving party in breach of this SublicenseAgreement; (iv) was subsequently disclosed to the receiving party by a personother than the disclosing party who was not bound by any confidentiality obligation;or (v) was developed entirely independently by the receiving party withoutuse of, reliance on, or reference to the Confidential Information of the otherparty.

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**8.2**          **Confidentiality**.  Each party agrees to protect, hold and maintain in strict confidenceall Confidential Information of the other party for a period of ten (10) yearsfrom the date of disclosure.  Withoutlimiting the foregoing, neither party shall use or disclose the ConfidentialInformation of the other party, except as otherwise permitted by thisSublicense Agreement or as may be necessary or useful to exercise its rights orperform its obligations under this Sublicense Agreement provided thatemployees, agents, and representatives of the receiving party shall be givenaccess to Confidential Information only on a need-to-know basis and only ifthey are bound by obligations of confidentiality comparable to those containedherein.  Nothing contained in thisArticle 8 shall prevent either party from disclosing any ConfidentialInformation of the other party to (a) accountants, lawyers or otherprofessional advisors or in connection with a merger, acquisition or securitiesoffering, subject in each case to the recipient entering into an agreement toprotect such Confidential Information from disclosure; or (b) is required bylaw or regulation to be disclosed; provided, however, that the party subject tosuch disclosure requirement has provided written notice to the other partypromptly upon receiving notice of such requirement in order to enable the otherparty to seek a protective order or otherwise prevent disclosure of suchConfidential Information.

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**ARTICLE IX**

 

**NON-SOLICITATION**

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**9.1**          Duringthe Term of this Sublicense Agreement, neither party shall contact, divert, orinfluence, or attempt to divert or influence any personnel of the other forpurposes of providing employment to such personnel

 

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without the prior written consent of thecurrent employer.  In the event thateither party breaches this non-solicitation covenant and hires (the “NewEmployer”) an employee or consultant who, within the six (6) months immediatelypreceding the date of hire by the New Employer, was employed by the other party(the “Prior Employer”), the New Employer shall pay to the Prior Employer ascompensation for the loss of the employee/consultant, three (3) times the firstyear’s total compensation being paid by the New Employer to theemployee/consultant.

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

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**ARTICLE X**

 

**LIMITATION OF LIABILITY**

 

EXCEPT FOR BREACH OFSECTION 8, NEITHER PARTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLELAW, SHALL HAVE ANY LIABILITY TO THE OTHER PARTY FROM ANY CAUSE WHATSOEVER, ANDREGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT (INCLUDINGNEGLIGENCE), FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR EXEMPLARYDAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUES,SAVINGS, BUSINESS INTERRUPTION AND THE LIKE) UNDER OR RELATING TO THISAGREEMENT, EVEN IF SUCH OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCHDAMAGES.

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**ARTICLE XI**

 

**MISCELLANEOUS**

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

 
| To EUV:   |   | SRL-EUV, LLC  15 Ward Street  Somerville, Massachusetts 02143  Attn.: Joseph Mangano  Facsimile: (703) 243-7139             |
|-----------|--------|-----------------------------------------------------------------------------------------------------------------------------|
|      |   |                                                                                                                        |
| To Cymer: |   | Cymer, Inc.  17075 Thornmint Court  San Diego, California 92127  Attn.: Dr. Robert P. Akins, CEO  Facsimile: (858) 385 6090 |

 

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

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**11.2**        **Public Announcements.**

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

 

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

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**11.2.2**     Subjectto Article 8, any party that determines applicable securities laws require itto disclose publicly (i) non-financial information with respect to itsrelationship to the other party or (ii) any aspect of the other party’sbusiness, shall first provide the other party a copy of the disclosure itintends to disclose and shall provide the other party the opportunity tocomment thereon.  Notwithstanding theforegoing, the disclosing party will have final decision-making authority withrespect to its disclosures.

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

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

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**11.5**        **Entire Agreement**.  Except for the Solid State Modulator License and ManufacturingAgreement dated as of January 26, 1995, the Patent License Agreement and/or the2001 Patent Sublicense Agreement, this Sublicense Agreement embodies the entireagreement and understanding of the parties hereto in relation to the subjectmatter hereof and supersedes any and all prior understandings and agreements, whetherwritten or oral in regard to such matters. Cymer hereby acknowledges and confirms its consent to the assignment ofSRL’s rights and obligations under the 2001 Patent Sublicense Agreement fromSRL to EUV, and EUV hereby confirms that it is bound by the terms andconditions of the 2001 Patent Sublicense Agreement as a party to suchagreement.  For the avoidance of doubt,unless otherwise specifically amended, all provisions, including amountspayable by Cymer, under the Solid State Modulator License and ManufacturingAgreement dated as of January 26, 1995, the Patent License Agreement, and the2001 Patent Sublicense Agreement shall remain in full force and effect.

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**11.6**        **Amendment**. No amendment, change or modification of any of the terms, provisions orconditions of this Sublicense Agreement shall be effective unless made inwriting and signed on behalf of the parties hereto by their duly authorizedrepresentatives.

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

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

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**11.9**        **Binding Agreement; Succession**. ThisSublicense Agreement shall be binding upon and shall inure to the benefit ofthe parties and their respective successors and permitted assigns.  Neither party may assign this SublicenseAgreement without the prior written approval of the other party which approvalshall not be unreasonably withheld or delayed; provided, however, that eitherparty may assign this Sublicense Agreement without the prior written approvalof the other party in connection with the acquisition of such party by, or mergerof such party with or into, a third party or the sale of substantially all ofsuch party’s assets; provided, further, however that should EUV wish to assignthis Sublicense Agreement to any third-party listed on Exhibit 11.9 attachedhereto and made a part hereof, such written approval of Cymer shall berequired.

 

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

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

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**IN WITNESS WHEREOF**, the parties have causedthis Sublicense Agreement to be executed as of the day and year first abovewritten.

 
| **SRL-EUV,  LLC** | **CYMER,  INC.**   |
|-------------------|--------------------|
|              |               |
|              |               |
| By:               | /s/ JOSEPH MANGANO |   | By: |  /s/ ROBERT P. AKINS |
|              | Joseph Mangano     |   | Robert P. Akins, Ph.D., CEO |
|                   |                    |  |  |  |

 

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**EXHIBIT 11.9**

 

[...***...]

 

 

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