**Exhibit 10.28**

 

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

 

**PATENT SUBLICENSEAGREEMENT**

 

**THIS PATENT SUBLICENSE AGREEMENT**(“Sublicense Agreement”), made as of this 7 day of Nov., 2003 (the “EffectiveDate”), by and between **SCIENCE RESEARCHLABORATORY, INC.,**a Massachusetts corporation with principal officesat 15 Ward Street, Somerville, Massachusetts 02143 (“SRL”) and **CYMER, INC.,**a Nevada corporation, withprincipal offices at 17075 Thornmint Court, San Diego California 92127(“Cymer”).

 

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

 

**WHEREAS,** Cymersublicensed to SRL, by separate agreement dated May 14, 2001 (the “2001 PatentSublicense Agreement”) certain rights held by Cymer under the Patent LicenseAgreement in order for SRL to develop certain technologies in the Field of Use;and

 

**WHEREAS,** SRL-EUV,LLC (“EUV”) is the assignee of SRL under the 2001 Patent Sublicense Agreementand holds all of SRL’s rights under the 2001 Patent Sublicense Agreement; and

 

**WHEREAS,** EUV sublicensed to Cymer, by separateagreement dated Nov. 7, 2003 (the “2003 Patent Sublicense Agreement”) alllicense rights held by EUV under the 2001 Patent Sublicense Agreement;

 

**WHEREAS,** Cymer is willing to grant to SRL a sublicenseto certain rights held by Cymer under the 2003 Patent Sublicense Agreementpursuant to the terms and conditions set forth below.

 

**NOW, THEREFORE,** forand in consideration of the premises, covenants, conditions, and undertakingshereinafter set forth, the parties hereto agree as follows:

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**ARTICLE I**

 

**DEFINITIONS**

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

 

**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.

 

**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.

 

**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).

 

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

 

**1.6**                               **Government Purpose**shall mean conductingresearch activities for or under contract with the U.S. federal government orany instrumentality thereof.

 

***CONFIDENTIAL TREATMENT REQUESTED

 

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

 

**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.

 

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

 

**1.10**                        **Research** shall mean any research and development in the Fieldof Use.

 

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

 

**1.12**                        **Sublicensed Technology**shall mean all confidentialinformation, trade secrets, know-how, methods or processes and other materials,tangible and non-tangible, including, but not limited to: technical andnon-technical data and information, drawings, sketches, plans, diagrams,specifications and/or other documents or materials containing said informationand data licensed by Cymer under the Patent License Agreement in the Field ofUse as well as any Cymer Invention (as defined in the Patent License Agreement)or Cymer’s rights under any Joint Invention (as defined in the Patent LicenseAgreement); in each case, which have been sublicensed by EUV to Cymer under the2003 Patent Sublicense Agreement.

 

**1.13**                        **Sublicensed Patents**shall mean the patents or patentapplications (i) which have been sublicensed by EUV to Cymer under the2003 Patent Sublicense Agreement; and (ii) which, in the absence of therights being granted under the sublicense granted by Cymer to SRL under thisSublicense Agreement, would be infringed by SRL’s manufacture, sale or use ofthe Research(s) (as defined herein) at any time during the Term of thisSublicense Agreement.

 

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

 

**1.15**                        **Term** shall have the meaning as set forth in Section 6 below.

 

**ARTICLE II**

 

**GRANT OF SUBLICENSE**

 

**2.1**                               Cymer hereby grants toSRL an irrevocable exclusive, worldwide, royalty-free sublicense: (x) touse the Sublicensed Technology for the purpose of making, or having made,selling or having sold Research in the Field of Use for any Government Purpose;and (y) under the Sublicensed Patents to make, have made, and use and sellthe Research in the Field of Use for any Government Purpose.

 

**2.2**                               SRL shall not obtain anyrights of any kind in the Sublicensed Patents or the Sublicensed Technologyexcept as specifically set forth in this Sublicense Agreement.

 

**2.3**                               In consideration of therights and licenses granted hereunder, SRL agrees to pay to Cymer a sublicensefee in the amount of [...***...] due on January 5, 2004.

 

**ARTICLE III**

 

**IMPROVEMENTS AND INVENTIONS**

 

**3.1**                               The parties’ respectiverights of ownership with respect to improvements and inventions shall be as setforth in Article III of the Patent License Agreement.

 

***CONFIDENTIAL TREATMENT REQUESTED

 

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**ARTICLE IV**

 

**PATENT PROSECUTION AND INFRINGEMENT**

 

**4.1**                               Cymer agrees that itshall, at its own expense, prepare, file, prosecute and maintain the SublicensedPatents, in such countries as Cymer deems appropriate, and shall be responsiblefor conducting any interferences, re-examinations, reissues, oppositions orrequests for patent term extensions relating to the Sublicensed Patents.  SRL shall cooperate fully in thepreparation, filing and prosecution of any Sublicensed Patents under thisSublicense Agreement.  Notwithstandingthe foregoing, Cymer shall not take any such action that could adversely affecta patent or application owned by SRL, unless such action is mutually agreed bythe parties.  Cymer shall provide SRLwith sufficient written notice of any decision not to prepare, file, prosecuteand maintain any Sublicensed Patent so that SRL may take such action on itsown.

 

**4.2**                               Each party will promptlynotify the other party of any written claim received by it alleginginfringement by Research of the proprietary rights or patents of athird-party.  Cymer shall assume thedefense of any action relating to any such allegation of patent infringement.

 

**4.3**                               Each party will promptlynotify the other party hereto of the possible infringement by a third-party ofResearch or any of the Sublicensed Technology or Sublicensed Patents comprisingResearch.  Cymer shall have the soleright to take any action it deems necessary, at its sole cost and expense, withrespect to any infringement of Research or the Sublicensed Patents.

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

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**4.5**                               If either party bringsan infringement action under this Agreement, the other party shall cooperatefully, including if required to bring such action, the furnishing of a power ofattorney.

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**ARTICLE V**

 

**REPRESENTATIONS AND WARRANTIES**

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**5.1**                               **Cymer**. Cymer 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 Sublicense Agreement;and (iv) it shall fully comply with the requirements of any and all applicablefederal, state, local and foreign laws, regulations, rules and orders of anygovernmental body having jurisdiction over the activities contemplated by thisSublicense Agreement.

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**5.2**                               **SRL**. SRL 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 expires(the “Term”) in its entirety upon the termination for any reason, orexpiration, of the Patent License Agreement with respect to all Research, inall countries, worldwide.

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**6.2**                               **No Termination.**  The parties agree that upon payment of the sublicense fee setforth in Section 2.3 this Sublicense Agreement shall not 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, all otherrights and obligations of the parties shall terminate upon expiration of thisSublicense Agreement.

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**ARTICLE VII**

 

**INDEMNIFICATION**

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**7.1**                               **Indemnification by SRL**.  SRL shall indemnify, defend and holdharmless Cymer, 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 SRL; (ii) any breach by SRL of any of its representations orwarranties set forth in Article V of this Sublicense Agreement; or(iii) breach of any warranty relating to the Research of SRL covered bythe sublicense granted in Section 2.1 including, but not limited to defects indesign, manufacturing or claims under any theory of product liability.

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**7.2**                               **Indemnification by Cymer**.  Cymer shall indemnify, defend and holdharmless SRL, 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 Cymer; or (ii) any breach by Cymer of any of itsrepresentations or warranties set forth in Article V of this SublicenseAgreement.

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

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**ARTICLE VIII**

 

**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

 

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example, but without limitation(a) information concerning the disclosing party’s management, financialcondition, financial operations, purchasing activities, costs of products,sales activities, marketing activities and business plans, (b) informationconcerning or resulting from the disclosing party’s research and developmentwork, including, but not limited to, improvements, discoveries, inventions andnew product ideas, (c) information of the disclosing party concerning actual orpotential vendors or customers, (d) the disclosing party’s computer programs,including source code, object code, algorithms, methods, structure and relatedinformation including diagrams, flow charts, designs, specifications, manuals,descriptions, instructions, explanations and improvements, and (e) informationconcerning the disclosing party’s products, including plans, blueprints, partsand assembly drawings, specifications, descriptions, designs, diagrams,dimensions, tolerances, parts and components, in each case, whether deliveredorally, in writing, electronically or through any other media.  Notwithstanding the foregoing or anythingherein to the contrary, Confidential Information shall not include anyinformation that, in each case the receiving party can prove by writtendocumentation:  (i) was already known tothe receiving party, other than under an obligation of confidentiality, at thetime of disclosure; (ii) was generally available to the public or otherwisepart of the public domain at the time of its disclosure to the receiving party;(iii) became generally available to the public or otherwise part of the publicdomain after its disclosure and other than through any act or omission of thereceiving party in breach of this Sublicense Agreement; (iv) was subsequentlydisclosed to the receiving party by a person other than the disclosing partywho was not bound by any confidentiality obligation; or (v) was developedentirely independently by the receiving party without use of, reliance on, orreference to the Confidential Information of the other party.

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**8.2**                               **Confidentiality**.  Each party agrees to protect, hold and maintain in strictconfidence all Confidential Information of the other party for a period of ten(10) years from the date of disclosure. Without limiting the foregoing, neither party shall use or disclose theConfidential Information of the other party, except as otherwise permitted bythis Sublicense Agreement or as may be necessary or useful to exercise itsrights or perform 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**                               During the Term of thisSublicense Agreement, neither party shall contact, divert, or influence, orattempt to divert or influence any personnel of the other for purposes ofproviding employment to such personnel 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**                               All payments duehereunder shall be made, in-full, within thirty (30) days of the first day theemployee/consultant provides services to the New Employer.

 

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**ARTICLE X**

 

**LIMITATION OF LIABILITY**

 

EXCEPT FORBREACH OF SECTION 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 noticesrequired or permitted hereunder shall be given in writing and sent by facsimile transmission (withconfirmation of receipt), or mailed postage prepaid, certified or registeredmail, return receipt requested, or sent by a nationally recognized expresscourier service, or hand-delivered at the following address:

 
| To SRL:   |   | Science  Research Laboratory, Inc.  15 Ward Street  Somerville, Massachusetts 02143  Attn.: Jonah Jacob  Facsimile: (617) 441-3984 |
|-----------|--------|------------------------------------------------------------------------------------------------------------------------------------|
|      |   |                                                                                                                               |
| To Cymer: |   | Cymer, Inc.  17075 Thornmint Court  San Diego, California 92127  Attn.: Dr. Robert P. Akins, CEO  Facsimile: (858) 385 6222        |

 

All notices shall be deemedmade upon receipt by the addressee as evidenced by the applicable writtenreceipt or, in the case of a facsimile, as evidenced by the confirmation oftransmission.

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

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**11.2.1**              Subject to Section 11.2.2, all publicity,press releases and other announcements relating to this Sublicense Agreement orthe transaction contemplated hereby shall be reviewed in advance by, and besubject to the approval of, both parties; provided, however, that either partymay, without the consent of the other, (i) disclose the existence and generalsubject matter of this Sublicense Agreement without the other party’s approvaland (ii) subject to Article 8 disclose the terms of this Sublicense Agreementas required to comply with applicable securities laws.  Any party that determines applicablesecurities laws require it to file this Sublicense Agreement shall firstprovide the other party a copy of the redacted version it intends to file andshall provide the other party the 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**              Subject to Article 8, any party thatdetermines applicable securities laws require it to disclose publicly (i)non-financial information with respect to its relationship to the other partyor (ii) any aspect of the other party’s business, shall first provide the otherparty a copy of the disclosure it intends to disclose and shall provide theother party the opportunity to comment thereon.  Notwithstanding the foregoing, the disclosing party will havefinal decision-making authority with respect to its disclosures.

 

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**11.3**                        **Captions and Section References**.  The titles, headings or captions in this Sublicense Agreement donot define, limit, extend, explain or describe the scope or extent of thisSublicense Agreement or any of its terms or conditions and therefore shall notbe considered in the interpretations, construction or application of thisSublicense Agreement.

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**11.4**                        **Severability**.  Wheneverpossible, each clause, subclause, provision or condition of this SublicenseAgreement shall be interpreted in such manner as to be effective and validunder applicable law, but if any clause, subclause, provision or condition ofthis Sublicense Agreement should be prohibited or invalid under applicable law,such clause, subclause, provision or condition shall be considered separate andseverable from this Sublicense Agreement to the extent of such prohibition orinvalidity without invalidating the remaining clauses, subclauses, provisionsand conditions of this Sublicense Agreement, so long as the remainingSublicense Agreement reflects the economic intentions of the parties asevidenced by this Sublicense Agreement as a whole.

 

**11.5**                        **Entire Agreement**. Except for the Solid State Modulator License and Manufacturing Agreementdated as of January 26, 1995, the Patent License Agreement, the 2001 PatentSublicense Agreement and/or the 2003 Patent Sublicense Agreement, thisSublicense Agreement embodies the entire agreement and understanding of theparties hereto in relation to the subject matter hereof and supersedes any andall prior understandings and agreements, whether written or oral in regard tosuch matters. For the avoidance of doubt, unless otherwise specificallyamended, all provisions, including amounts payable by Cymer, under the SolidState Modulator License and Manufacturing Agreement dated as of January 26,1995, the Patent License Agreement, and the 2001 Patent Sublicense Agreementshall remain in full force and effect.

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**11.6**                        **Amendment**.  Noamendment, change or modification of any of the terms, provisions or conditionsof this Sublicense Agreement shall be effective unless made in writing andsigned on behalf of the parties hereto by their duly authorizedrepresentatives.

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

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

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**11.9**                        **Binding Agreement; Succession**. This Sublicense Agreement shallbe binding upon and shall inure to the benefit of the parties and theirrespective successors and permitted assigns. Neither party may assign this Sublicense Agreement without the priorwritten approval of the other party which approval shall not be unreasonablywithheld or delayed; provided, however, that either party may assign thisSublicense Agreement without the prior written approval of the other party inconnection with the acquisition of such party by, or merger of such party withor into, a third party or the sale of substantially all of such party’s assets;provided, further, however that should SRL wish to assign this SublicenseAgreement to any third-party listed on Exhibit 11.9 attached hereto and made aparty hereof, such written approval of Cymer shall be required.

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**11.10**                 **IndependentContractors**.  Therelationship of Cymer and SRL established by this Sublicense Agreement is thatof independent contractors.  Nothing inthis Sublicense Agreement shall be construed to create any other relationshipbetween Cymer and SRL.  Neither partyshall have any right, power or authority to assume, create or incur anyexpense, liability or obligation, express or implied, on behalf of the other.

 

**11.11**                 **GoverningLaw**.  This SublicenseAgreement shall be interpreted under and enforced in accordance with the lawsof the State of Massachusetts.

 

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

 
| **SCIENCE RESEARCH LABORATORY, INC.** | **CYMER, INC.**  |
|---------------------------------------|------------------|
|                                  |             |
|                                  |             |
| By:                                   | /s/ JONAH  JACOB |   | By: | /s/ ROBERT  P. AKINS |
|                                  | Jonah Jacob      |   | Robert P. Akins, Ph.D., CEO |
|                                       |                  |  |  |  |

 

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**EXHIBIT 11.9**

 

[...***...]

 

 

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