**Exhibit 10.1**

 

Confidentialtreatment has been requested for portions of this exhibit. The copy filedherewith omits the information subject to the confidentiality request.Omissions are designated as “***”. A complete version of this exhibit has beenfiled separately with the Securities and Exchange Commission.

 

 

**ASSET PURCHASE AGREEMENT**

 

**THIS ASSET PURCHASE AGREEMENT** (this “*Agreement*”) is made and enteredinto this 5th day of December, 2007 between SEMITOOL, INC., a Montanacorporation with a principal business address at 655 West Reserve Drive,Kalispell, Montana (hereinafter referred to as “*Semitoo**l*”), and AVIZA TECHNOLOGY, INC., a Delaware corporation witha principal business address at 440 Kings Valley Road, Scotts Valley,California (hereinafter referred to as “*Aviza*”) (each may beindividually referred to as a “*Party*” and collectively as the “*Parties*”).

** **

# **RECITALS**

#  

**WHEREAS, Semitool is engaged in the design, manufacture,marketing, and distribution of thermal products for the semiconductor industry;and**

** **

**WHEREAS, upon the terms and subject to the conditions setforth in this Agreement, Semitool wishes to sell and Aviza desires to purchasecertain of the Thermal Assets (as such term is defined below), and licensecertain associated intellectual property, as described herein, for the purposeof designing, commercializing, manufacturing, operating and marketing ***products for semiconductor device manufacturing (the *“****Thermal Products**’**)*.

** **

**NOW, THEREFORE, in consideration of the payments hereinprovided for and the covenants, conditions, representations and warrantiesherein contained, the Parties hereto agree as follows:**

 

# **ARTICLE1.**

#  

**PURCHASEAND SALE OF THE THERMAL ASSETS**

 

## **1.1.        TheTransferred Assets.**

##  

### ** On the terms and subject to the conditions ofthis Agreement, and for the consideration set forth in Section 1.5,Semitool shall, at the Closing, sell, transfer and convey to Aviza, free andclear of all liens, all of Semitool’s respective rights, titles and interestsin the following assets:**

### ** **

### **1.1.1.   Semitool’s right, title and interest in andto the physical assets of the prototype *** located at its main facility inKalispell, Montana and more fully described in Schedule 3.5 (c) attachedhereto (the “*****”), associated spare parts andhardware and all manufacturing documentation related thereto;**

### ** **

### **1.1.2.   Semitool’s entire right, title and interestin and to its software, know-how, trade secrets and copyrights that are used,held for use, or useful solely in connection with the design, development,modification, manufacture, operation, support, marketing**

### ** **

----

*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

### ** **

### ****

### ** **

### **andsale through multiple tiers of distribution of the *** and the Thermal Productsdeveloped from that prototype; and**

### ** **

### **1.1.3.   Semitool’s entire right, title and interestin and to the patents and patent applications set forth in Schedule 1.1.3,attached hereto (the “***Assigned Patents*”).   Avizagrants back to Semitool a non-exclusive, non-transferable, worldwide,irrevocable, royalty-free, paid-in-full license to make, have made, use, haveused, import, offer to sell and sell the subject matter of the Assigned Patentssolely as they may be applicable to the *** equipment manufactured by Semitool(the “Semitool Field of Use”).  Avizaagrees that it will not use the Thermal Assets to make, have made, use, haveused, import, offer to sell or sell products or services in the Semitool Fieldof Use that are the subject matter of the Assigned Patents, nor will Avizagrant licenses in the Semitool Field of Use under the Assigned Patents to anythird party.

### ** **

## **1.2.        TheLicensed Assets.**

** **

**1.2.1.   Subject tothe Non-Disclosure Agreement attached as Appendix A hereto (the “***NDA*”), Semitool grants toAviza a non-exclusive, non-transferable, worldwide, royalty-free license toreproduce, modify, make derivative works of, use and distribute throughmultiple tiers of distribution the software source code delivered by Semitoolfor the *** (the “*Licensed Software*”)**todevelop, make, have made, use, have used, import, offer to sell and sell theThermal Products and any improvements, modifications, follow-on products orsimilar products (the “*Permitted Uses”*).

** **

### **1.2.2.   Semitool grants to Aviza a non-exclusive,transferable (including the right to sublicense), worldwide, irrevocable,royalty-free license to use such Semitool patents and patent applications, setforth in Schedule 1.2.2., as applicable to the *** (the “***Licensed Patents*”) for the PermittedUses.

### ** **

### **1.2.3.   Aviza agrees not to intentionally use,without the prior written consent of Semitool, any knowledge gained through theuse of the Licensed Software or Licensed Patents for any purpose other than thePermitted Uses.  In the event of amaterial, uncured breach of this Section 1.2 or the NDA, the licensegranted pursuant to Section 1.2.1 shall terminate.**

### ** **

### **1.2.4.   The items described in Section 1.2.1and 1.2.2, above, collectively shall be referred to as the “***Licensed Assets*.”

### ** **

### **1.2.5.   The items described in Section 1.1,above, and this Section 1.2, collectively shall be referred to as the“***ThermalAssets*.”

### ** **

## **1.3.        Assumptionof Liabilities.**

##  

### **Avizais not assuming any liabilities in connection with the assignment, transfer, orlicense of the Thermal Assets, any such liability, an**“*Excluded Liability*.”  For the avoidance of doubt, an ExcludedLiability does not include (1) any fact or circumstance related to theThermal Assets that did not exist prior to the Closing and (2) and defectsor 

### ** **

----

### ***** Certain information has been omitted and filedseparately with the Securities and Exchange Commission. Confidential treatmenthas been requested with respect to the omitted portions.**

### **2**

### ****

### ** **

### **latentdefects related to the prototype *** (it being understood that the prototype*** is not intended for sale in its current state of development).**

##  

## **1.4.        Commercialization Support.**

##  

### **Semitool undertakes to provide the engineering, softwareand manufacturing support specified in Appendix B hereto in order tosupport the commercialization of the ***.**

### ** **

## **1.5.        Consideration.**

##  

**1.5.1.  Theconsideration to be**paidby Aviza (the “*Purchase Price*”) for the sale by Semitool of theThermal Assets shall be one million (1,000,000) shares of the common stock ofAviza, $0.0001 par value (the “*Buyer’s Shares*”), delivered at Closing, plus thepayments described in Section 1.5.2. The Purchase Price is non-refundable. Aviza shall be solely responsible for all sales andtransfer taxes, if any, required by any governmental authority in any relevantjurisdiction which arise out of or result from the sale hereunder of theThermal Assets.

** **

**1.5.2.   In additionto the Buyer’s Shares, Aviza shall also pay Semitool an amount equal to *** ofthe net revenues generated from the sale of the Thermal Products systems(exclusive of spare parts and service) commercialized with the support providedby Section 1.4 (the “***Royalty Products*”) up to a maximum amount of ***.  The royalty payment period shall becalculated based on the sales of Royalty Products that are recorded forrevenue, on a quarterly basis, and will be due within fifteen (15) daysfollowing the end of each calendar quarter. For purposes hereof, “net revenues” equal gross revenues actuallyreceived by Aviza exclusive of any taxes, duties, fees or shipping or insurancecosts.

** **

### **1.6.         Non-competition Undertaking.**

### ** **

**Semitool and its affiliates shall not engage in any ***business that competes with (i) the Royalty Products or (ii) anyother *** product currently commercialized by Aviza.  For the avoidance of doubt, it is understoodthat the following technologies are excluded from this non-competitionundertaking: (i) any *** thermal technology that is used in conjunctionwith *** modules in an integrated system and (ii) *** technologies.  Notwithstanding the foregoing, theobligations set forth in this Section 1.6 shall terminate on the fifthanniversary hereof unless the amounts paid to Semitool pursuant to Section 1.5hereof aggregate at least ***, taking into account the aggregate royaltypayments made pursuant to Section 1.5.2 and the value of the Buyer’sShares on such date (as determined by the closing price of said Buyer’s Shareson that date), in which case the obligations shall extend for an additional ten(10) years.**

** **

### **1.7.         Ownership.**

### ** **

### **1.7.1.   As between the Parties, Aviza shall be thesole owner of all Intellectual Property Rights and Technology in and to anyimprovements or derivative works it creates from the Thermal Assets (“***Improvement*”).

### ** **

----

### ***** Certain information has been omitted and filedseparately with the Securities and Exchange Commission. Confidential treatmenthas been requested with respect to the omitted portions.**

### ** **

### **3**

### ****

### ** **

### **1.7.2.   Aviza hereby agrees to grant to Semitool anon-exclusive, non-transferable (except as set forth in Section 7.8),irrevocable, royalty-free, worldwide, paid-in-full license under any patentdisclosing an Improvement with a filing date prior to the second anniversary ofthe effective date of this Agreement, to make, have made, use, have used,import, offer to sell and sell the subject matter of the Improvement solely asthey may be applicable to the *** equipment manufactured by Semitool.**

### ** **

# **ARTICLE2.**

#  

**CLOSING**

 

## **2.1.        Closing.**

##  

**The purchase and sale (the “***Closing*”) provided for inthis Agreement shall take place at such time and place as Semitool and Avizashall agree upon, but no later than December 15, 2007 (the “*Closing Date*”).

##  

## **2.2.        Closing Obligations of Semitool.**

##  

**At the Closing, Semitool shall deliver or cause to bedelivered to Aviza:**

** **

### **(a)           thephysical assets included in the Thermal Assets and, to the extent Semitoolcannot physically transfer said physical assets at that time, Semitool shalltake all requisite steps to put Aviza in actual possession and operatingcontrol of said physical assets as soon thereafter as reasonably practical;**

### ** **

### **(b)           good andsufficient documentation reasonably requested by Aviza conveying to Aviza theinterests created hereunder in the Thermal Assets, such documentation to be inform and substance reasonably satisfactory to counsel for Aviza; and**

### ** **

### **(c)           copiesof all of Semitool’s records and other data relating to the Thermal Assets.**

### ** **

## **2.3.        ClosingObligations of Aviza.**

##  

### **At the Closing, Aviza shall deliver to Semitool the Buyer’sShares.**

### ** **

## **2.4.        OtherDocuments; Further Assurances.**

##  

**Semitool from time to time after the Closing at the requestof Aviza and without further consideration shall execute and deliver furtherinstruments and take such other action as Aviza may reasonably require to moreeffectively give effect to the conveyances contemplated herein in respect ofthe Thermal Assets.**

** **

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***** Certain information has beenomitted and filed separately with the Securities and Exchange Commission.Confidential treatment has been requested with respect to the omitted portions.**

#  

4

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#  

# **ARTICLE3.**

#  

**REPRESENTATIONSAND WARRANTIES OF SEMITOOL**

 

Semitool herebyrepresents and warrants to Aviza, as of the date hereof and as of the ClosingDate, that:

 

## **3.1.        Authorityand Binding Effect.**

##  

**Semitool has the full power, authority and capacity toexecute, deliver and perform its obligations under this Agreement and all ofthe other agreements, documents, instruments and certificates to be executed bySemitool and to convey all of the Thermal Assets to Aviza, free and clear ofany encumbrances, and has taken all actions necessary to secure and has securedall approvals required in connection therewith. This Agreement is, and any documents or instruments to be executed anddelivered by Semitool pursuant hereto, will be legally valid and bindingobligations of Semitool enforceable against Semitool in accordance with theirterms, except as enforceability may be limited by applicable bankruptcy,insolvency, reorganization, moratorium or similar laws affecting creditors’ andcontracting parties’ rights generally and except as enforceability may besubject to general principles of equity (regardless of whether suchenforceability is considered in a proceeding in equity or at law).**

** **

## **3.2.        Ownership of Assets.**

##  

**  Semitool isthe owner of the entire right, title and interest in the Thermal Assets, freeand clear of any encumbrances.**

** **

## **3.3.        NoUndisclosed Liabilities.**

##  

**There are no material liabilities of any nature withrespect to the Thermal Assets (whether known or unknown, absolute, accrued,contingent or otherwise, and whether due or to become due) not disclosed to Aviza.**

** **

## **3.4.        Legal Proceedings.**

##  

**There is no pending lawsuit, action, claim, formal orinformal investigation, arbitration, litigation or other judicial, regulatory,administrative or dispute resolution proceeding (a “***Proceeding*”) that has beencommenced by or against Semitool, which if adversely determined would have amaterial adverse effect on the Thermal Assets, and no such Proceeding isthreatened or inchoate.

** **

## **3.5.        IntellectualProperty.**

##  

**(a)           Schedule 1.1(iii) attachedhereto contains a true and complete patent application serial number for eachjurisdiction in which the referenced application was filed and the date filedor issued.  There are no registeredcopyrights, trademarks or mask work related exclusively to the Thermal Assets.**

** **

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*****Certain information has been omitted and filed separately with the Securitiesand Exchange Commission. Confidential treatment has been requested with respectto the omitted portions.**

** **

**5**

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** **

**(b)           Schedule3.5(b)(i) attached hereto contains (A) a true and complete listof all licenses and Material Contracts pursuant to which Semitool is grantedrights in any third-party Technology or Intellectual Property Rights (excludingany Publicly Available Software) (x) embedded or incorporated into ordistributed with any of the Thermal Assets, (y) used by Semitool in thedevelopment or support of any of the Thermal Assets, or (z) used or heldfor use by Semitool for any other purpose (excluding, for purposes of thisclause (z) only, any generally available, off-the-shelf software programslicensed by Semitool on standard terms); (B) a summary of Semitool’sremaining payment and accounting obligations, if any, with respect to each ofsuch licenses or Material Contracts, excluding agreements for generallyavailable, off-the-shelf software programs licensed by Semitool on standardterms.  Semitool has not provided sourcecode or detailed design documentation of the Thermal Assets or any materialpart thereof to a third party.**

** **

**(c)           Schedule3.5(c) attached hereto contains a true and complete shop order of  the *** as of the date hereof.**

** **

**(d)           TheIntellectual Property Rights and Technology owned or licensed by Semitool thatrelate to the Thermal Assets constitutes all Intellectual Property Rights andTechnology used by Semitool in or, to Semitool’s knowledge necessary for, thedesign, manufacture, license and sale of all of the Thermal Products , whethercurrently under development or in production.**

** **

**(e)           Semitool(A) owns all right, title and interest in and to the Thermal IP andThermal Technology, free and clear of any liens; or (B) has a valid andenforceable right or license to use all other Intellectual Property Rights andTechnology used in the conduct of Semitool’s business as such business relatesto the Thermal Products, and all such licensed Intellectual Property Rights andrights to use Technology will not cease to be valid and enforceable rights ofSemitool by reason of the execution and delivery of, and performance of theobligations under, this Agreement, or by any ancillary agreements executed inconnection with this Agreement, or the consummation of the transactionscontemplated hereby or thereby.**

** **

**(f)            Thereare no legal Proceedings related to the Thermal Products that are pending or,to Semitool’s knowledge, threatened (i) alleging infringement,misappropriation or any other violation of any Intellectual Property Rights ofany Person by Semitool or any of their respective products or services, or (ii) challengingthe scope, ownership, validity, or enforceability of the Thermal IP or ofSemitool’s rights under or to the Intellectual Property Rights and Technologylicensed to Semitool and used in or necessary for the conduct of Semitool’sbusiness as such business relates to the Thermal Products as presentlyconducted. Without limiting the foregoing, no interference, opposition,reexamination or other proceeding initiated by a third party is or has beenpending or, to Semitool’s knowledge, threatened, in which the scope, validityor enforceability of any of the Thermal IP is being or has been challenged andto Semitool’s knowledge, all Thermal IP is valid and enforceable.  To Semitool’s knowledge, Semitool’s past orpresent use of the Thermal IP or Thermal Technology does not infringe upon ormisappropriate, breach or otherwise conflict with the Intellectual PropertyRights of any third party and Semitool has not received any notice alleging any**

** **

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*****Certain information has been omitted and filed separately with the Securitiesand Exchange Commission. Confidential treatment has been requested with respectto the omitted portions.**

** **

**6**

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** **

**such infringement ormisappropriation.  Neither the Thermal IPnor the Thermal Technology is subject to any outstanding judgment, decree,order, writ, award, injunction or determination of an arbitrator or court orother governmental authority (other than office actions and correspondenceregarding pending patent applications and trademark applications) restrictingthe rights of Semitool with respect thereto. To Semitool’s knowledge, no Person has interfered with, infringed uponor misappropriated any of Semitool’s Intellectual Property Rights as suchrights relate to the Thermal Products, or is currently doing so.**

** **

**(g)           Semitoolhas taken all actions reasonably necessary to maintain and protect the ThermalIP, including payment of applicable maintenance fees, filing of applicablestatements of use, timely response to office actions and disclosure of anyrequired information, and all assignments (and licenses where required) of theThermal IP have been duly recorded with the appropriate governmentalauthorities. Schedule 3.5(g) attached hereto includes a true andcomplete list of all material actions that must be taken within 120 days of thedate hereof with respect to any of the Registered IP. Semitool has compliedwith all applicable notice and marking requirements for the Registered IP.  None of the Thermal IP has been adjudgedinvalid or unenforceable in whole or part and, to Semitool’s knowledge, allThermal IP is valid and enforceable. Semitool has taken reasonable stepsconsistent with industry standard practices to safeguard and maintain thesecrecy and confidentiality of trade secrets that are material to the ThermalProducts.  Without limiting theforegoing, (i) there has been no misappropriation of any trade secrets orother confidential Intellectual Property Rights or Technology used inconnection with Semitool’s business as such business relates to the ThermalProducts by any Person; (ii) to Semitool’s knowledge, no employee,independent contractor or agent of Semitool has misappropriated any tradesecrets of any other Person in the course of performance as an employee,independent contractor or agent of Semitool’s business as such business relatesto the Thermal Products; and (iii) to Semitool’s knowledge, no employee,independent contractor or agent of Semitool is in default or breach of any termof any employment agreement, nondisclosure agreement, assignment of inventionagreement or similar agreement or contract relating in any way to theprotection, ownership, development, use or transfer of the Thermal IP orThermal Technology.  Semitool is notobligated to provide any consideration (whether financial or otherwise) oraccount to any third party with respect to any exercise of rights by Semitool,or any successor to Semitool, in any Thermal IP, Thermal Technology or ThermalProduct.**

** **

**(h)           Semitoolhas not incorporated or otherwise used Publicly Available Software in a mannerthat would require, or condition the use or distribution of any Thermal Producton the disclosure, licensing or distribution of any source code for any portionof such Thermal Product.**

** **

**(i)            TheLicensed Software does not contain any Harmful Code, and Semitool has usedcommercially reasonable efforts to prevent the introduction of such HarmfulCode to the Licensed Software.**

** **

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*****Certain information has been omitted and filed separately with the Securitiesand Exchange Commission. Confidential treatment has been requested with respectto the omitted portions.**

** **

**7**

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** **

**(j)            Semitoolis not bound by, and no Thermal IP or Thermal Technology is subject to, anyagreement or arrangement containing any covenant or other provision that in anyway limits or restricts the ability of Semitool to use, exploit, assert orenforce any Thermal IP or Thermal Technology anywhere in the world.  Semitool has not transferred ownership of, orgranted any exclusive license with respect to, any Thermal IP or ThermalTechnology to any other Person.**

** **

**(k)           Nofunding, facilities, or personnel of any governmental entity or educationalinstitution were used, directly or indirectly, to develop or create, in wholeor in part, any of the Thermal IP, Thermal Technology or Thermal Products.  Semitool has not made any written submissionto, and is not subject to any agreement with, any standards bodies or otherentities that would obligate Semitool to grant licenses to or otherwise impairits control of the Thermal IP, the Thermal Technology or the Thermal Products.**

** **

**(l)            Semitoolhas not entered into any agreement requiring Semitool to grant any access orrights to the source code or technical design or manufacturing documentationnecessary to make the Thermal Products or to place such materials or otherTechnology incorporated in the Thermal Products so that a licensee might obtainaccess to it upon the occurrence of any release condition. No event hasoccurred, and no circumstance or condition exists, that (with or without noticeor lapse of time) will, or could reasonably be expected to, result in thedelivery, license or disclosure of any source code for any Thermal Product toany other person who is not, as of the date of this agreement, an employee ofSemitool.**

** **

**3.6.**         Investment Matters.

** **

### **(a)           Semitoolis an “accredited investor” within the meaning of Regulation D of theSecurities Act of 1933, as amended (the “***Securities Act*”) and Semitool has the knowledge, sophistication andexperience necessary to make, and is qualified to make decisions with respectto, investments in shares presenting an investment decision like that involvedin the acquisition of the Buyer’s Shares, including investments in securitiesissued by Aviza and investments in comparable companies, and has requested allinformation it deemed relevant in making an informed decision to acquire theBuyer’s Shares and has reviewed and considered all information provided inresponse to such requests.

### ** **

### **(b)           Semitoolis acquiring the Buyer’s Shares for its own account for investment only andwith no present intention of distributing any of the Buyer’s Shares inviolation of the Securities Act or any arrangement or understanding with anyother individual, corporation, limited liability company, partnership, jointventure, association, trust, unincorporated organization or other entity (eacha “***Person*”) regarding thedistribution of such Buyer’s Shares.

### ** **

### **(c)           Semitoolwill not, directly or indirectly, offer, sell, pledge, transfer or otherwisedispose of (or solicit any offers to buy, purchase or otherwise acquire or takea pledge of) any of the Buyer’s Shares except in compliance with the**

### ** **

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*****Certain information has been omitted and filed separately with the Securitiesand Exchange Commission. Confidential treatment has been requested with respectto the omitted portions.**

### ** **

### **8**

### ****

### ** **

### **SecuritiesAct, applicable state securities laws and the respective rules andregulations promulgated thereunder.**

### ** **

### **(d)           Semitoolunderstands that its acquisition of the Buyer’s Shares has not been registeredunder the Securities Act or registered or qualified under any state securitieslaw in reliance on specific exemptions therefrom, which exemptions may depend upon,among other things, the bona fide nature of Semitool’s investment intent asexpressed herein.**

### ** **

**3.7.**         Material Contracts.

** **

### **(a)           Thereare no Material Contracts to which Semitool is a party or is bound related tothe Thermal Products as of the date of this Agreement.**

### ** **

### **(b)           “***Material Contracts*” shall mean:

### ** **

#### **(i)            licenseor purchase agreements or royalty-bearing contracts primarily related to theThermal Products, whether Semitool is the licensor or licensee thereunder,including with equipment or software vendors;**

#### ** **

#### **(ii)           confidentiality and non-disclosure agreements related tothe Thermal Products, whether Semitool is the beneficiary or the obligatedparty thereunder;**

#### ** **

#### **(iii)          contracts involving future expenditures or liabilitiesrelated to the Thermal Products, actual or potential, or future revenues fromthe Thermal Products;**

#### ** **

#### **(iv)          contracts to procure key raw materials used with theThermal Products, such as wafers and chemicals; and**

#### ** **

#### **(v)           anyother contract material to the Thermal Products.**

#### ** **

**3.8.         Compliance with Law.**

** **

**Semitool’s conduct of its business as such business relatesto the Thermal Products has not materially violated and is in materialcompliance with applicable law.  Semitool has not received any notice tothe effect that, or otherwise been advised that, Semitool is not in compliancewith any such applicable law.**

** **

# **ARTICLE4.**

#  

**AVIZA’S REPRESENTATIONS ANDWARRANTIES Aviza hereby represents and warrants to Semitool, as of the datehereof and as of the Closing Date, that:**

** **

## **4.1.        Authorityand Binding Effect.**

##  

 

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*****Certain information has been omitted and filed separately with the Securitiesand Exchange Commission. Confidential treatment has been requested with respectto the omitted portions.**

 

9

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**Aviza has the full power, authority and capacity toexecute, deliver and perform this Agreement and all of the other agreements,documents, instruments and certificates to be executed by Aviza and has takenall actions necessary to secure and has secured all approvals required inconnection therewith.  This Agreement is,and any documents or instruments to be executed and delivered by Aviza pursuanthereto, will be legally valid and binding obligations of Aviza enforceable againstAviza in accordance with their terms, except as enforceability may be limitedby applicable bankruptcy, insolvency, reorganization, moratorium or similarlaws affecting creditors’ and contracting parties’ rights generally and exceptas enforceability may be subject to general principles of equity (regardless ofwhether such enforceability is considered in a proceeding in equity or at law).**

** **

**4.2.**                            Buyer’s Shares.

** **

**All of the Buyer’s Shares have been duly authorized and,when issued and paid for in accordance with the terms of this Agreement, willbe validly issued, fully paid, nonassessable and free of all preemptiverights.  Assuming the accuracy of therepresentations and warranties made by Semitool in Article 3, andcompliance with the covenants of Semitool in Article 5, no registration ofthe Buyer’s Shares under the Securities Act is required in connection with theacquisition of the Buyer’s Shares by Semitool as contemplated by thisAgreement.**

** **

# **ARTICLE5.**

#  

**COVENANTS**

 

## **5.1.        Registration of Buyer’s Shares.**

##  

**5.1.1.       Registration.  Semitool will not sell, transfer or otherwisedispose of any of the Buyer’s Shares unless (i) a registration statementfiled with the Securities and Exchange Commission (the “***SEC*”) pursuant to theSecurities Act is in effect with respect thereto or (ii) an exemption fromsuch registration is available.  Avizashall use its commercially reasonable efforts to file with the SEC withinthirty (30) days of the Triggering Event, but in no event more than fifteen(15) months after the Closing, a registration statement on Form S-3 (the “*Registration Statement*”) (or any successorshort-form registration statement involving a similar amount of disclosure) fora public offering of all of the Buyer’s Shares to be made on a continuous basispursuant to Rule 415 of the Securities Act and shall use its commerciallyreasonable efforts to cause such Registration Statement to become effective assoon as practicable but in no event later than three (3) months afterfiling and remain continuously effective until the Buyer’s Shares have eitherall been sold or are eligible for sale pursuant to Rule 144 promulgatedunder the Securities Act.  Aviza shallpay all expenses of registration as aforesaid, except brokerage andunderwriting commissions, any taxes of any kind, Semitool’s legal and otheradvisory expenses and such other expenses as may be required by law to be paidby Semitool.  For the purposes hereof,the “*TriggeringEvent*” shall mean the sale of the fifth *** (or derivative product) byAviza.

** **

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*****Certain information has been omitted and filed separately with the Securitiesand Exchange Commission. Confidential treatment has been requested with respectto the omitted portions.**

** **

**10**

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** **

**5.1.2.       Suspension.**          In the event of:

** **

### **(a)           anyrequest by the SEC or any other federal or state governmental authority duringthe period of effectiveness of the Registration Statement for amendments orsupplements to a Registration Statement or related prospectus (the “***Prospectus*”) or for additionalinformation;

### ** **

### **(b)           theissuance by the SEC or any other federal or state governmental authority of anystop order suspending the effectiveness of a Registration Statement or theinitiation of any proceedings for that purpose;**

### ** **

### **(c)           thereceipt by Aviza of any notification with respect to the suspension of thequalification or exemption from qualification of any of the Buyer’s Shares forsale in any jurisdiction or the initiation or threatening of any proceeding forsuch purpose; or**

### ** **

### **(d)           anyevent or circumstance that necessitates the making of any changes in theRegistration Statement or Prospectus, or any document incorporated or deemed tobe incorporated therein by reference, so that, in the case of the RegistrationStatement, it will not contain any untrue statement of a material fact or omitto state a material fact required to be stated therein or necessary to make thestatements therein not misleading, and that in the case of the Prospectus, itwill not contain any untrue statement of a material fact or omit to state amaterial fact necessary to make the statements therein, in the light of thecircumstances under which they were made, not misleading,**

### ** **

**thenAviza shall deliver a notice in writing to Semitool (the “***SuspensionNotice*”) to the effect of the foregoing and, upon receiptof such Suspension Notice, Semitool shall refrain from selling any Buyer’sShares pursuant to the Registration Statement (a “*Suspension*”) until Semitool’s receipt of copies of a supplemented or amendedProspectus prepared and filed by Aviza, or until it is advised in writing byAviza that the current Prospectus may be used. In the event of any Suspension, Aviza shall use its commerciallyreasonable efforts, consistent with the best interests of Aviza and itsstockholders, to cause the use of the Prospectus so suspended to be resumed assoon as reasonably practicable after the delivery of a Suspension Notice toSemitool.

** **

### **5.1.3.       Legends.                **In**addition**to any legends requiredby law, until the earlier to occur of (i) the termination of this Agreementand (ii) such time as all of the Buyer’s Shares have been sold pursuant to(A) an effective registration statement or (B) pursuant to Rule 144promulgated under the Securities Act, the certificates representing the Buyer’sShares shall bear the following legends:****

### ** **

**“THE SECURITIES REPRESENTEDBY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS ON TRANSFER SET FORTHIN AN ASSET PURCHASE AGREEMENT.  A COPYOF SUCH ASSET PURCHASE AGREEMENT MAY BE**

** **

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*****Certain information has been omitted and filed separately with the Securitiesand Exchange Commission. Confidential treatment has been requested with respectto the omitted portions.**

 

11

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** **

**OBTAINED FROM AVIZATECHNOLOGY, INC. UPON REQUEST.”**

** **

**“THE SECURITIES REPRESENTEDBY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,AS AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS. THESECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED, ASSIGNED,PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENTFOR THE SECURITIES UNDER THE SECURITIES ACT EXCEPT IN COMPLIANCE WITH RULE 144PROMULGATED UNDER THE SECURITIES ACT OR IN THE EVENT THAT AVIZA TECHNOLOGY,INC. (THE “COMPANY”) SHALL HAVE RECEIVED AN OPINION FROM COUNSEL REASONABLYSATISFACTORY TO THE COMPANY THAT REGISTRATION OF SUCH SECURITIES UNDER THESECURITIES ACT AND UNDER THE PROVISIONS OF APPLICABLE FEDERAL AND STATE SECURITIESLAWS IS NOT REQUIRED.”**

** **

**5.2.         Conveyanceof Semitool Technology.**

** **

**At the Closing, Semitool shall execute such furtherdocumentation as may be reasonably required by Aviza (including a patentassignment) to transfer ownership of the Intellectual Property Rights andTechnology constituting the Thermal Assets to be transferred pursuant to Section 1.1.**

** **

# **ARTICLE6.**

#  

**INDEMNIFICATION**

 

## **6.1.        Indemnificationby Aviza.**

##  

**Aviza shall indemnify and hold harmless Semitool and itsofficers, directors, employees and agents (collectively, the “***SemitoolIndemnified Persons*”) for, and shall pay to the Semitool Indemnified Personsthe amount of, any loss, liability, claim, damage, or expense (including costsof investigation and defense and reasonable attorneys’ fees), whether or notinvolving a third-party claim (collectively, “*Damages*”), resulting orarising from:

** **

### **(a)           anybreach of any representation, warranty or covenant made by Aviza in thisAgreement;**

### ** **

----

*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

### ** **

### **12**

### ****

### ** **

### **(b)           tothe extent permitted by law, Aviza shall indemnify and hold harmless each ofSemitool, its directors and officers and each person, if any, who controlsSemitool within the meaning of the Securities Act against any Damages, joint orseveral, to which any of them may become subject under the Securities Act orotherwise, insofar as such Damages arise out of or are based upon any untrue oralleged untrue statement of any material fact contained or expresslyincorporated by reference in the Registration Statement referred to in Section 5.1.1,including any preliminary prospectus or final prospectus contained therein orany amendment or supplement thereto, or arise out of or based upon the omissionor alleged omission to state therein a material fact required to be statedtherein or necessary to make the statements therein not misleading and shallreimburse Semitool, its directors and officers and each such controlling personfor any legal or other expenses reasonably incurred by any of them inconnection with investigating or defending any such Damages; provided, however,that the indemnity agreement contained in this Section 6.1(b) shallnot apply to (a) amounts paid in settlement of any such Damages arisingout of or is based upon (i) an untrue statement or alleged untruestatement or omission or alleged omission made in the Registration Statement,the Prospectus or any amendment or supplement of the Registration Statement orProspectus in reliance upon and in conformity with written informationfurnished to Aviza by or on behalf of Semitool expressly for use in theRegistration Statement or the Prospectus or (ii) the failure of Semitoolto comply with the covenants and agreements contained in Section 5.1.2 or (iii) anyuntrue statement or omission of a material fact in any Prospectus that iscorrected in any subsequent Prospectus that was delivered to Semitool beforethe pertinent sale or sales by Semitool or (b) amounts paid in settlementof any such Damages if such settlement is effected without the consent of Aviza(which consent shall not be unreasonably withheld).**

### ** **

## **6.2.        Indemnificationby Semitool.**

##  

**Semitool shall indemnify and hold harmless Aviza and itsofficers, directors, employees and agents (collectively, the “***AvizaIndemnified Persons*”) for, and shall pay to the Aviza Indemnified Persons theamount of any Damages resulting or arising from:

** **

### **(a)           anybreach of any representation, warranty or covenant made by Semitool in thisAgreement;**

### ** **

### **(b)           anyExcluded Liability;**

### ** **

### **(c)           tothe extent permitted by law, Semitool shall indemnify and hold harmless Aviza,its directors, its officers who have signed the Registration Statement referredto in Section 5.1.1 and each person, if any, who controls Aviza within themeaning of the Securities Act against any Damages, joint or several, to whichany of them may become subject under the Securities Act or otherwise, insofaras such Damages arise out of or are based upon any untrue or alleged untruestatement of any material fact contained or expressly incorporated by referencein such Registration Statement, including any preliminary prospectus or finalprospectus contained therein or any amendment or supplement thereto, or ariseout of or based upon the omission or alleged omission to state therein amaterial fact required to be stated therein or necessary to make**

### ** **

----

*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

### ** **

### **13**

### ****

### ** **

### **the statements therein not misleading, in each case to theextent, but only to the extent, that such untrue statement or alleged untruestatement or omission or alleged omission was made in such RegistrationStatement, preliminary prospectus, final prospectus or amendments orsupplements thereto, in reliance upon and in conformity with writteninformation furnished by Semitool expressly for use therein; and Semitool shallreimburse any legal or other expenses reasonably incurred by Aviza or any suchdirector, officer and controlling person in connection with investigating ordefending any such Damages; provided, however, that  (i) the indemnity agreement contained inthis Section 6.2(c) shall not apply to amounts paid in settlement ofany such loss, claim, damage, liability or action if such settlement iseffected without the consent of Semitool (which consent shall not beunreasonably withheld) and (ii) that any indemnification by Semitool shallbe limited to the amount of the net proceeds received by Semitool from the saleof the Buyer’s Shares pursuant to such Registration Statement.**

### ** **

# **ARTICLE7.**

#  

**MISCELLANEOUS**

 

## **7.1.        CertainDefinitions.**

##  

**For purposes of this Agreement, the term:**

** **

**“***Harmful Code*” shall mean any program, routine, device or other feature,such as but not limited to any “back door,” “drop dead device,” “Trojan Horse,”“virus,” “worm,” “spyware” or “adware” (as such terms are commonly understoodin the software industry) or any other code designed or intended to have, orcapable of performing or facilitating, any of the following functions: (i) disrupting,disabling, harming or otherwise impeding in any manner the operation of, orproviding unauthorized access to, a computer system or network or other deviceon which such code is stored or installed; or (ii) compromising theprivacy or data security of a user or damaging or destroying any data or filewithout the user’s consent.

** **

**“***Intellectual Property Rights*” shall mean (i) inventions,whether or not patentable, reduced to practice or made the subject of one ormore pending patent applications, and all improvements thereto, (ii) nationaland multinational statutory invention registrations, patents and patentapplications (including all renewals, reissues, divisions, substitutions,continuations, continuations-in-part, extensions and reexaminations thereof)registered or applied for in the United States and all other nations throughoutthe world, (iii) trademarks, service marks, trade dress, logos, slogans,domain names, trade names and corporate names (whether or not registered) inthe United States and all other nations throughout the world, including allvariations, derivations, combinations, registrations and applications forregistration or renewals of the foregoing and all goodwill associatedtherewith, (iv) copyrights and rights under copyrights (whether or notregistered) and registrations and applications for registration or renewalsthereof in the United States and all other nations throughout the world,including all derivative works, moral rights, renewals, extensions, reversionsor restorations associated with such copyrights, now or hereafter provided bylaw, regardless of the medium of 

** **

----

*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

** **

**14**

----

** **

**fixation or means of expression, (v) mask work rightsand registrations and applications for registration or renewals thereof in theUnited States and all other nations throughout the world, (vi) tradesecrets and, whether or not confidential, business information (includingpricing and cost information, business and marketing plans and customer andsupplier lists), technology and know-how (including manufacturing andproduction processes and techniques and research and development information), (vii) industrialdesigns (whether or not registered), (viii) rights in databases and datacollections (including knowledge databases, customer lists and customerdatabases) in the United States and all other nations throughout the world,whether registered or unregistered, and any applications for registrationtherefor, (ix) URL and domain name registrations, (x) all rights inall of the foregoing provided by treaties, conventions and common law, (xi) allrights to sue or recover and retain damages and costs and attorneys’ fees forpast, present and future infringement or misappropriation of any of theforegoing, and (xii) other proprietary or intellectual property rights now knownor hereafter recognized in any jurisdiction.**

** **

**“***Publicly Available Software*” shall mean: (A) any Softwarethat contains, or is derived in any manner in whole or in part from, anySoftware that is distributed as free Software, open source Software (e.g. Linux)or under similar licensing or distribution models; or (B) any Softwarethat may require as a condition of use, modification or distribution that suchSoftware or other Software incorporated into, derived from or distributed withsuch Software: (i) be disclosed or distributed in source code form; (ii) belicensed for the purpose of making derivative works; or (iii) beredistributable at no charge.

** **

**“***Registered IP*” shall mean all United States, international andforeign Intellectual Property Rights that have been recorded or registered inany applicable jurisdiction or are otherwise the subject of an application,certificate, filing, registration or other document issued, filed with orrecorded by any governmental entity, and are owned by, under obligation ofassignment to, or filed in the name of, Semitool as such rights relate to theThermal Products.

** **

**“***Software*” shall mean computer software, firmware, programs anddatabases in any form, including Internet web sites, web content and links,source code, executable code, tools, developers kits, utilities, graphical userinterfaces, menus, images, icons and forms, and all versions, updates,corrections, enhancements and modifications thereof, and all relateddocumentation, developer notes, comments and annotations related thereto.

** **

**“***Technology*” shall mean copies and tangible embodiments ofIntellectual Property Rights, whether in electronic, written or other media,including Software, technical documentation, specifications, designs, bills ofmaterial, build instructions, test reports, schematics, algorithms, applicationprogramming interfaces, user interfaces, routines, formulae, test vectors, ipcores, mask works, tooling requirements, databases, lab notebooks, inventiondisclosures, processes, prototypes, samples, studies or other know-how andother works of authorship.

** **

----

*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

** **

**15**

----

** **

**“***Thermal IP*” shall mean all Intellectual Property Rights owned,developed or acquired by assignment by Semitool as such rights relate to theThermal Products.

** **

**“***Thermal Technology*” shall mean all Technology owned,developed or acquired by assignment by Semitool as such technology relates tothe Thermal Products.

** **

## **7.2.        Expenses.**

##  

**Except as otherwise expressly provided in this Agreement,each Party shall pay its own legal, accounting and other expenses incurred inconnection with this Agreement and the transactions contemplated herein.**

** **

## **7.3.        Public Announcement.**

##  

**Unless otherwise required by applicable law, no Party shallissue any public announcement or similar publicity with respect to thisAgreement or the transactions contemplated by this Agreement without the priorapproval of the other party.  In theevent either party intends or is required to file this agreement with the SEC,such party shall give the other party sufficient notice to consider and effecta confidential treatment request.**

** **

## **7.4.        Notices.**

##  

**All notices, consents, waivers and other communicationsunder this Agreement must be in writing and will be deemed to have been dulygiven when (a) delivered by hand (with written confirmation of receipt), (b) sentby telecopier (with written confirmation of receipt), provided that a copy ismailed by registered mail, return receipt requested or (c) when receivedby the addressee, if sent by a nationally recognized overnight delivery service(receipt requested), in each case to the appropriate addresses and telecopiernumbers set forth below (or to such other addresses and telecopier numbers as aParty may designate by notice to the other Parties):**

** **

If to Semitool:

 

Semitool, Inc.

655 West Reserve Drive

Kalispell, Montana 59901

Attn:  Richard Hegger

Facsimile No.:406.752.5522

 

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*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

 

16

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If to Aviza:

Aviza Technology, Inc.

440 Kings Village Road

Scotts Valley, California95066

Attn: Patrick C. O’Connor

Facsimile No.:831.439.6320

 

## **7.5.        FurtherAssurances.**

##  

**The Parties agree (a) to furnish upon request to eachother such further information, (b) to execute and deliver to each othersuch other documents, and (c) to do such other acts and things, all as theother Party may reasonably request for the purpose of carrying out the intentof this Agreement and the documents referred to in this Agreement.**

** **

## **7.6.        Entire Agreement and Modification.**

##  

**This Agreement supersedes all prior agreements between theParties with respect to its subject matter and constitutes (along with thedocuments referred to in this Agreement) a complete and exclusive statement ofthe terms of the agreement between the Parties with respect to its subjectmatter.  This Agreement may not beamended except by a written agreement executed by the Party to be charged with theamendment.**

** **

**7.7.         Governing Law**.

** **

**This Agreement shall be governed by the laws of the stateof California without regard to conflicts of law principles that would resultin the application of any laws other than the laws of the state of California.**

** **

**7.8.         Assignment and Grant Back.**

** **

**The rights granted pursuant to Section 1.2 are notassignable by operation of contract or law (including, for the avoidance ofdoubt, merger or consolidation) until the assignee or successor in interest, asthe case may be, consents in writing (in a form reasonably acceptable toSemitool) to restrict any use of the rights granted by Semitool hereunder tothe Permitted Uses and specifically agrees not to use any such rights inconnection with any *** equipment.  Inthe event that the non-competition undertaking pursuant to Section 1.6 isterminated in accordance with the provisions thereof, Aviza shall be deemed tohave granted back to Semitool a non-exclusive, non-transferable, worldwide,royalty-free, paid-in-full license to make, have made, use, have used, import,offer to sell and sell the subject matter of the Assigned Patents.  Semitool may not assign this Agreement or itsrights hereunder to any third party without the prior written consent of Aviza,such consent not to be unreasonably withheld. Notwithstanding the foregoing, Semitool may, without Aviza’s consent,assign this Agreement together with the rights granted to Semitool under thisAgreement to a successor in interest to Semitool upon a merger, acquisition,reorganization, or change of control of Semitool, or sale of all orsubstantially all of the assets of Semitool.**

** **

----

*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

** **

**17**

----

** **

**IN WITNESS WHEREOF,** the Parties hereto have causedthis Agreement to be duly executed as of the day and year first above written.

 
| **AVIZA  TECHNOLOGY, INC.:** | **SEMITOOL,  INC.:**                                  |
|------------------------------|-------------------------------------------------------|
|                         |                                                  |
|                         |                                                  |
| **By**:                      |     /s/  Patrick C. O’Connor |   | **By:** |     /s/  Richard Hegger |   |
|                         |                                                  |
| **Name**:                    | Patrick C.  O’Connor                             |   | **Name**: |     Richard  Hegger |   |
|                         |                                                  |
| **Title:**                   |  Executive Vice President & CFO         |   | **Title:** | General  Counsel & Secretary |   |
|                              |                                                       |  |  |  |  |  |  |  |  |  |

 

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*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

 

18

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Appendix A

 

MutualNon-Disclosure Terms

 

**THIS APPENDIX A** governs the disclosure of all confidential andproprietary information by and between **SEMITOOL, INC,**(“Semitool”) and **AVIZA TECHNOLOGY, INC.** (“Aviza”) pursuantto the Asset Purchase Agreement between the parties  (the “Agreement”) to which this non-disclosureagreement (“NDA”) is attached.

 

**1.**             As used herein, “ConfidentialInformation” shall mean the Licensed Software and any and all technical andnon-technical information provided by either party to the other that is markedor otherwise identified at the time of disclosure as confidential orproprietary, whether in graphic, electronic, written or oral form, andincluding but not limited to any ideas, techniques, drawings, designs,descriptions, specifications, works of authorship, patent applications or otherfilings, models, inventions, know-how, processes, algorithms, software sourcedocuments, and formulae related to the current, future, and proposedtechnologies,  products and services ofeach of the parties, and also any information concerning research, experimentalwork, development, engineering, financial information, purchasing, customerlists, investors, employees, business and contractual relationships, businessforecasts, business plans, property information, personally-identifiableinformation, sales and merchandising, marketing plans of or related to thedisclosing party and information the disclosing party provides regarding orbelonging to third parties.  For oraldisclosures to constitute “Confidential Information,” such disclosures must beidentified at the time as confidential or proprietary and the disclosing partymust provide a written summary of the Confidential Information within thirty(30) days following initial disclosure.

** **

**2.**             Each party agrees that at all timesand notwithstanding any termination or expiration of the Agreement it will holdin strict confidence and not disclose to any third party ConfidentialInformation of the party disclosing the Confidential Information (the “DisclosingParty”), except as approved in writing by the Disclosing Party.  Aviza may use the Confidential Information ofSemitool for no purpose other than thePermitted Uses.  Semitool may onlyuse the Confidential Information of Aviza for purposes of fulfilling itsobligations under the Agreement. Notwithstanding any of the foregoing, the party to whom ConfidentialInformation was disclosed (the “Recipient”) shall not be in violation of this Section 2with regard to a disclosure that was in response to a valid order by a court orother governmental body, provided that the Recipient provides the DisclosingParty with prior written notice of such disclosure in order to permit theDisclosing Party to seek confidential treatment of such information.  Each party shall only permit access toConfidential Information of the other party to those of its employees orauthorized representatives having a need to know and who have signedconfidentiality agreements or are otherwise bound by confidentialityobligations at least as restrictive as those contained herein.

** **

**3.**             Each party shall immediately notifythe other upon discovery of any loss or unauthorized disclosure of theConfidential Information of the other party. Confidential Information shall notbe reproduced in any form except as required to accomplish the purposes of theAgreement.

** **

**4.**             Each party’s obligations under thisAgreement with respect to any portion of the other party’s ConfidentialInformation shall terminate when the Recipient can document that suchinformation: (a) was in the public domain at the time it was communicatedto the Recipient by the Disclosing Party through no breach of an obligation ofconfidentiality to the Disclosing Party; (b) entered the public domainsubsequent to the time it was communicated to the Recipient by the DisclosingParty through no fault of the Recipient or other breach of an obligation ofconfidentiality to the Disclosing Party; (c) was in the Recipient’spossession free of any obligation of confidence at the time it was communicatedto the Recipient; or (d) was developed by employees or agents of theRecipient independently of and without reference to any informationcommunicated to the Recipient by the Disclosing Party.

** **

**5.**             The Recipient shall be free to usefor any purpose the Residuals  resultingfrom access to or work with the Disclosing Party’s ConfidentialInformation.  The term “Residuals” meansinformation in intangible form, which is retained in memory by persons who havehad access to the Confidential Information consistent with the terms of thisAgreement, including ideas, concepts, know-how or techniques containedtherein.  The Recipient shall not haveany obligation to limit or restrict the assignment of such persons or to payroyalties for any work resulting from the use of Residuals.  However, the foregoing right to Residualsshall not be deemed to grant the Recipient a license under the Disclosing Party’scopyrights or patents.

** **

**6.**             The parties’ obligations under thisNDA shall terminate five (5) years after the Closing Date.

** **

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*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

 

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**APPENDIX B**

 

**COMMERCIALIZATION SUPPORT**

 

1.  Engineering Support.  Semitool will make available during theDevelopment Period the liaison services of at least two engineers (currentlydesignated as *** in Kalispell, Montana and *** in Cambridge, England) for thepurpose of assisting in mechanical engineering aspects of Aviza’scommercialization of the ***.  For thepurposes hereof, the “Development Period” shall mean the period necessary forAviza to convert the *** to a production worthy tool, or one year from the datehereof, whichever comes first.

 

2.  Software Support.  Semitool will make available during theDevelopment Period the on-site commercially reasonable support of the softwaredepartment under the direction of the Director of Software for the purpose ofassisting in the software aspects of Aviza’s commercialization of the ***(including electronic control systems). After the Development Period, further software support shall be limitedto forty (40) man/hours per month for an additional one year period, afterwhich such support will be available on an “as available” basis at the hourlyrate determined by the Director of Software to be the current hourly rateapplicable to such services.  Nothingcontained herein shall require Semitool to develop new versions or updates ofsoftware for the ***, but rather it shall support the software developmentundertaken by Aviza for the commercialization of the ***.

 

3.  Manufacturing Support.  Semitool through the Development Period willmake available parts fabrication to further support the engineering supportreferred to above in Item 1 hereof, subject to available resources at Semitool’sBirch Grove Facility.  Aviza will bebilled for any such parts fabrication at no more than a *** gross margin overthe cost of such parts.

 

4.  Facilities Support.  Semitool will make available to an Avizaengineering team of no more than six (6) persons to be working on-site atSemitool during the Development Period reasonable phone, network, PRO-E andother office accessories needed to finalize engineering on the ***.

 

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*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

 

----

 

**SCHEDULE 1.1.3.**

 

**ASSIGNED PATENTS AND PATENTAPPLICATIONS**

 

1.               ***;

 

2.               ***; and

 

3.               ***.

 

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*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

 

----

 

**SCHEDULE 1.2.2.**

 

**LICENSED PATENTS AND PATENTAPPLICATIONS**

 

**1.****             *********

 

**2.****             *********

 

**3.****             *********

 

**4.****             *********

 

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*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

 

----

 

**SCHEDULE3.5(b)(i)**

 

None.

 

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*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

 

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**SCHEDULE3.5(c)**

 

Attached.

 

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*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

 

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** **

 
| **S/OT239043,** | ** ** | ****Revision  B**** | ** ** |  |
|-----------------|------------|---------------------|------------|--|

 
| **Line**                                                   |       | **Qty/  Date** |       | **Item**                                                    |       | **Description/  Notes**                                                                      |       |
|------------------------------------------------------------|------------|----------------|------------|-------------------------------------------------------------|------------|----------------------------------------------------------------------------------------------|------------|
| **Route  To:**                                             |       | ** **     | ** ** | 1911250                                                     |       | **Ship  To:             1** |       |   |   |
|                                                       |       |           |       |                                                        |       |                                                                                         |       |   |   |
| SEMITOOL,  INC  555 WEST RESERVE DRIVE  KALISPELL MT 59901 |       |           |       | SEMITOOL,  INC.  555 WEST RESERVE DRIVE  KALISPELL MT 59901 | ** ** |
|                                                       |       |           |       |                                                        | ** ** |
| 1                                                          |       | 1              |       | 700T0079-01                                                 |       | ***                                                                                          | ** ** | ** ** | ** ** |
|                                                       |       | 06/30/06       |       |                                                        |       |                                                                                         | ** ** | ** ** | ** ** |
|                                                       |       |           |       |                                                        |       | ****REVISION  B**  *Corrected robot  Effective Date:**                                       | ** ** | **4/21/06** | ** ** |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** |                                                                                         |       |   |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Model  No:                                                                                   |       | *** |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Quote  No:                                                                                   |       | N/A |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Serial  No:                                                                                  |       | T239043 |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Specs:                                                                                       |       | None |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Reference:                                                                                   |       | None |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** |                                                                                         |       |   |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | CONFIGURATION:                                                                               |       |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Process:                                                                                     |       | *** |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Substrate:                                                                                   |       | *** |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Voltage:                                                                                     |       | 208V,  3 phase, 4 wire |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | SEMI  F47:                                                                                   |       | No |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | CE  Comp:                                                                                    |       | No |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | S2  Comp:                                                                                    |       | No |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | No  Chmbrs:                                                                                  |       | *** |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Bridge:                                                                                      |       | No |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | First  in FAB:                                                                               |       | No |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** |                                                                                         |       |   |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | AUTOMATION:                                                                                  |       |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Type:                                                                                        |       | *** |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Robot:                                                                                       |       | *** |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Controller:                                                                                  |       | *** |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | EndEffctr:                                                                                   |       | Edge  Grip |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | PreAlgnr:                                                                                    |       | No |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Carrier  ID:                                                                                 |       | tbd |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Tag  Rdr:                                                                                    |       | None |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** |                                                                                         |       |   |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | CABINET:                                                                                     |       |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Style:                                                                                       |       | *** |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Material:                                                                                    |       | Stainless  Steel |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Exhaust:                                                                                     |       | *** |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** |                                                                                         |       | *** |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Facilities:                                                                                  |       | Bottom |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | Fire  Supp:                                                                                  |       | None |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | ULPA  fltrs:                                                                                 |       | Std |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** |                                                                                         |       |   |   |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | PROCESS  MODULE:                                                                             |       |
| ** **                                                 | ** ** | ** **     | ** ** | ** **                                                  | ** ** | *******                                                                                      |       |   |   |

 

----

*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

 

----

 
| **S/OT239043,** | ** ** | ****Revision  B**** | ** ** |  |
|-----------------|------------|---------------------|------------|--|

 
| **Line**   |       | **Qty/  Date** |       | **Item**   |       | **Description/  Notes**                                                |       |
|------------|------------|----------------|------------|------------|------------|------------------------------------------------------------------------|------------|
| ** ** |       | ** **     | ** ** | ** ** |       |                                                                   |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | Chamber:                                                               |       | *** |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** |                                                                   |       |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | DELIVERY  SYSTEMS:                                                     |       |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | -None                                                                  |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** |                                                                   |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | DRAINS:                                                                |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | -None                                                                  |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** |                                                                   |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | OPTIONS:                                                               |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | -None                                                                  |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** |                                                                   |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | SPECIALS:                                                              |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | -Deck  mounted lower than standard***-*** located on left side of tool |       |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** |                                                                   |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | CUSTOMER  SOURCE INSPECTION:                                           |       |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | -No                                                                    |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** |                                                                   |       |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | ENGINEERING  REQUIRED:                                                 |       |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | -Everything                                                            |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** |                                                                   |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | MANUALS:                                                               |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | -Standard                                                              |       |   |   |
| ** ** | ** ** | ** **     | ** ** | ** ** | ** ** | ** **                                                             | ** ** | ** ** |   |

 

----

*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidential treatmenthas been requested with respect to the omitted portions.

 

----

 

**SCHEDULE3.5(g)**

 

None.

 

----

*** Certain information has been omitted andfiled separately with the Securities and Exchange Commission. Confidentialtreatment has been requested with respect to the omitted portions.

 

----