Exhibit
10.2

*** Text Omitted and Filed Separately

Pursuant to a Confidential Treatment Request

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


AMENDED AND RESTATED


JOINT VENTURE AGREEMENT


AMONG


TCZ GMBH


CYMER, INC.


CARL ZEISS SMT AG


CARL ZEISS LASER OPTICS BETEILIGUNGSGESELLSCHAFT
MBH


AND


TCZ PTE. LTD.









 



 


TABLE OF
CONTENTS


	
  

  	
   

  	
   

  	
  Page

  
	
  ARTICLE 1

  	
   

  	
  Definitions

  	
   

  	
  2

  
	
  ARTICLE 2

  	
   

  	
  Representations and Warranties

  	
   

  	
  6

  
	
  ARTICLE 3

  	
   

  	
  Purposes of the Company

  	
   

  	
  7

  
	
  ARTICLE 4

  	
   

  	
  Percentage Interests; Capital Contributions

  	
   

  	
  8

  
	
  ARTICLE 5

  	
   

  	
  Distributions

  	
   

  	
  9

  
	
  ARTICLE 6

  	
   

  	
  Corporate Governance

  	
   

  	
  10

  
	
  ARTICLE 7

  	
   

  	
  Accounting and Tax Matters

  	
   

  	
  16

  
	
  ARTICLE 8

  	
   

  	
  Certain Covenants

  	
   

  	
  17

  
	
  ARTICLE 9

  	
   

  	
  Exculpation and Indemnification

  	
   

  	
  18

  
	
  ARTICLE 10

  	
   

  	
  Disposition of Interests

  	
   

  	
  18

  
	
  ARTICLE 11

  	
   

  	
  Termination, Dissolution and Liquidation

  	
   

  	
  20

  
	
  ARTICLE 12

  	
   

  	
  Miscellaneous

  	
   

  	
  24

  



 















 


 


AMENDED AND RESTATED


JOINT VENTURE AGREEMENT


This
Amended and Restated Joint Venture Agreement is made on 12 September 2006
amongst:


(1)                                  TCZ GmbH of Bionstrasse 5, 9015 St. Gallen, Switzerland (“TCZ Switzerland”);


(2)                                  Cymer, Inc., a Nevada corporation (“Cymer”);


(3)                                  Carl Zeiss SMT AG, a stock corporation organized under the
laws of Germany (“Zeiss SMT”);


(4)                                  Carl Zeiss Laser Optics Beteiligungsgesellschaft mbH, a
limited liability company organized under the laws of Germany and an indirect
wholly-owned subsidiary of Zeiss SMT (“Zeiss LOB”);
and


(5)                                  TCZ Pte. Ltd., a company incorporated in
Singapore (registration no. 200609581M), whose registered office is at 1
Temasek Avenue #27-01, Singapore 039192 (the “Company”);


Capitalized terms
used herein but not defined when used have the meanings assigned to such terms
in Article 1.


RECITALS:


(A)                              On
15 July 2005, TCZ Switzerland, Cymer, Zeiss SMT and Zeiss LOB entered into a
joint venture agreement (as amended by an amendment agreement no. 1 dated 16
September 2005 entered into amongst the parties) (together, the “Original JV Agreement”) to establish TCZ Switzerland as a
joint venture to develop, integrate, market, sell and support tools employing a
beam generated by an excimer laser to induce crystallization for Low
Temperature Poly-Silicon (LTPS) processing (the “Products”)
for the manufacture of flat panel displays, including LCDs, LCD SOGs and OLEDs,
to engage in related application development and to search for other business
opportunities for process tools for the manufacture of flat panel displays.


(B)                                The
Original JV Agreement provided for (i) the governance of the affairs of TCZ
Switzerland, (ii) the rights, obligations and understandings of Cymer and Zeiss
LOB in relation to TCZ Switzerland and (iii) the [ . . . *
*
*  . . .] under the Original JV Agreement.


(C)                                Cymer,
Zeiss SMT and Zeiss LOB have agreed to move their joint venture vehicle to
Singapore in the form of the Company with effect from 12 September 2006 (or
such other date as may be agreed amongst the parties) (the “Effective Date”) and in this regard, are desirous of
amending and restating the Original JV Agreement in the manner provided herein.


 


***
Confidential Treatment Requested



 1
 






 



 


(D)                               As
at the date of this Agreement, the Company has a paid-in capital of [ . . . *
*
*  . . .] consisting of [ . . . *
*
*  . . .] shares of
which [ . . . *  *  *  . . .] shares are held by Cymer and [ . . . *
*
*  . . .] shares are held by Zeiss LOB.


(E)                                 For
the avoidance of doubt, the Original JV Agreement remains in full force and
effect as amongst TCZ Switzerland, Cymer, Zeiss SMT and Zeiss LOB until this
Amended and Restated Joint Venture Agreement is deemed to take effect as of the
Effective Date.


NOW, THEREFORE,
the parties hereto agree as follows:


ARTICLE
1 

DEFINITIONS


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


“ACRA” means the Accounting & Corporate Regulatory
Authority of Singapore.


“Act” means the Companies Act (Chapter 50 of Singapore), as
amended, supplemented or otherwise modified from time to time.


“Additional Funding Date” means 13 September 2006 (or such other date as may be agreed by and among the
parties).


“Administrative Services Agreements” means the Administrative
Services Agreement dated as of 16 September 2005 entered into between Cymer and
TCZ Switzerland (which has been novated to the Company by way of a deed of
novation executed on or around the Effective Date), as amended, supplemented or
otherwise modified from time to time.


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


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


 


***
Confidential Treatment Requested



 2
 






 



 


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


“Budget Year” means the period commencing on the date of this
Agreement and ending on December 31, 2006 and each successive one-year period
thereafter.


“Capital Call Notice” means a written request delivered by
the Company to each Member from time to time requesting that each Member
provide funds to the Company.  Such
notice shall specify in reasonable detail (i) the amount being requested, (ii)
the Company’s anticipated use of funds and the timing of such use, and (iii)
wire transfer instructions.


“Confidentiality Agreement” means the Confidentiality
Agreement dated as of 16 September 2005 entered into among Cymer, Zeiss SMT,
IMT and TCZ Switzerland (which has been novated to the Company by way of a deed
of novation executed on or around the Effective Date), as amended, supplemented
or otherwise modified from time to time.


“Cymer Supply Agreement” means the Supply Agreement dated as
of 16 September 2005 entered into between Cymer and TCZ Switzerland (which has
been novated to the Company by way of a deed of novation executed on or around
the Effective Date), as amended, supplemented or otherwise modified from time
to time.


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


“Facilities License Agreement” means the Facilities License
Agreement entered into between TCZ USA LLC and Cymer relating to use by TCZ USA
LLC of certain facilities in the United States, as amended, supplemented or
otherwise modified from time to time.


“FRS” means
Financial Reporting Standards, which Singapore-incorporated companies are
obliged to follow in preparing their accounts and which are set out in the
Companies (Accounting Standards) Regulations.


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


“IMT” means Carl Zeiss Industrielle Messtechnik GmbH.


“IMT IP Side Letter” means the side letter to the
Intellectual Property Agreement dated 16 September 2005 executed by IMT (which
has been novated to the Company by way of a deed of novation executed on or
around the Effective Date), as amended, supplemented or otherwise modified from
time to time.


“Intellectual Property Agreement” means the intellectual
property agreement dated as of 16 September 2005 among TCZ Switzerland, Cymer
and Zeiss SMT (which has been novated to the Company by way of a deed of
novation executed on or around the Effective Date), as amended, supplemented or
otherwise modified from time to time.



 3
 






 



 


 “Intellectual Property”
means any or all of the following: (i) works of authorship, including, without
limitation, computer programs, algorithms, routines, source code and executable
code, whether embodied in software, firmware or otherwise, documentation,
designs, files, records and data, (ii) inventions (whether or not patentable),
improvements, and technology, (iii) proprietary and confidential information,
including, without limitation, technical data and customer and supplier lists,
trade secrets, know-how and techniques, (iv) databases, data compilations and
collections and technical data, (v) logos, trade names, trade dress, trademarks
and service marks, (vi) domain names, web addresses and sites, (vii) tools,
methods, processes, devices, prototypes, schematics and test methodologies, and
(viii) any and all instantiations of the foregoing in any form and embodied in
any media.


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


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


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


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


“Members Meeting” means a meeting of the Members held in
accordance with the provisions of this Agreement, the Singapore Corporate Documents
and the Act.


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


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



 4
 






 



 


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


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


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


“subsidiary” bears the same meaning as set out in section 5
of the Act.


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


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


“S$” or “$” means the
lawful currency of the Republic of Singapore.


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


“US$” means the lawful currency of the United States of
America.


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


“Zeiss Supply Agreement” means the Supply Agreement dated as
of 16 September 2005 entered into between Carl Zeiss Laser Optics GmbH and TCZ
Switzerland (which has been novated to the Company by way of a deed of novation
executed on or around the Effective Date), as amended, supplemented or
otherwise modified from time to time.


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




	
  Term

  	
   

  	
  Section

  
	
  Annual Maximum
  Required Funding Contribution

  	
   

  	
  4.02(a)

  
	
  Board

  	
   

  	
  6.01(a)

  
	
  Business

  	
   

  	
  3.02

  
	
  Business Plan

  	
   

  	
  6.03(a)

  






 



 5
 






 



 


 




	
  Term

  	
   

  	
  Section

  
	
  Chief Executive
  Officer

  	
   

  	
  6.01(a)

  
	
  Company

  	
   

  	
  Preamble

  
	
  Director

  	
   

  	
  6.01(a)

  
	
  Fiscal Year

  	
   

  	
  7.01

  
	
  Gate Reviews

  	
   

  	
  6.03(a)

  
	
  Liquidating
  Event

  	
   

  	
  11.05

  
	
  Liquidator

  	
   

  	
  11.06

  
	
  Major Customer

  	
   

  	
  11.04(a)

  
	
  Non-Affiliate
  Transfer

  	
   

  	
  10.02(a)

  
	
  Non-Compete
  Period

  	
   

  	
  11.02(b)

  
	
  Non-Transferring
  Member

  	
   

  	
  10.02(a)

  
	
  Non-Triggering
  Party

  	
   

  	
  11.02(a)

  
	
  Other FPD
  Business Opportunities

  	
   

  	
  3.02

  
	
  Permitted
  Transferee

  	
   

  	
  10.01(a)

  
	
  Products

  	
   

  	
  Recital A

  
	
  Project

  	
   

  	
  6.03(a)

  
	
  Proposed
  Transferee

  	
   

  	
  10.02(a)

  
	
  Required Funding
  Contributions

  	
   

  	
  4.02(a)

  
	
  Singapore
  Corporate Documents

  	
   

  	
  12.13

  
	
  Transferring
  Member

  	
   

  	
  10.02(a)

  
	
  Triggering Event

  	
   

  	
  11.02(a)

  
	
  Triggering Party

  	
   

  	
  11.02(a)

  
	
  Triggering
  Separation

  	
   

  	
  11.04(b)

  






 


ARTICLE
2 

REPRESENTATIONS AND WARRANTIES


Section 2.01.          Representations And Warranties.  (a)
Cymer hereby represents and warrants that as of the date hereof (i) it is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Nevada, (ii) it has the requisite power and authority to
execute and deliver this Agreement and the other Joint Venture Documents and to
fully perform its obligations hereunder and thereunder, (iii) the execution,
delivery and performance of this Agreement and the other Joint Venture
Documents have been duly authorized on the part of Cymer, (iv) it is not party
to or affected by contractual or other legal obligations that would in any
material respect interfere with its full performance of this Agreement or the
other Joint Venture Documents, and (v)
the individuals executing this Agreement on behalf of Cymer have the authority
to do so.


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



 6
 






 



 


the
other Joint Venture Documents, and (v) the individuals executing this Agreement
on behalf of Zeiss LOB have the authority to do so.


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


(d)           Notwithstanding
any other provision contained in this Agreement, the Company shall be
authorized to execute, deliver and perform this Agreement and the other Joint
Venture Documents to which it is a party and all documents, agreements,
certificates, or statements contemplated thereby or related thereto, exclusive
of any future amendments, without any further act, vote or approval of any
Member or any other Person.


ARTICLE
3 

PURPOSES OF THE COMPANY


Section 3.01.           Name. The initial name of the Company shall be “TCZ Pte.
Ltd.”.  The business of the Company shall
be conducted under such name or names as the Members may from time to time
determine in accordance with the provisions hereof.


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



 7
 






 



 


Section 3.03.          Place of Business of the Company. 
The principal place of business of the Company shall be
located at such address as may be designated by the Board from time to time.


Section 3.04.          Registered Office; Registered Agent. 
The address of the registered office of the Company in
Singapore shall be as determined by the Board and as registered with ACRA.


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


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


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


ARTICLE
4 

PERCENTAGE INTERESTS; CAPITAL
CONTRIBUTIONS


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




	
  Name

  	
   

  	
  Percentage Interest

  	
   

  
	
  Cymer

  	
   

  	
  60

  	
  %

  
	
  Zeiss LOB

  	
   

  	
  40

  	
  %

  






 


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


(c)           Other
than the Members’ initial capital contributions and their Required Funding
Contributions, no additional funding or capital contribution of the Members
shall be required, except as the Members may unanimously agree.


Section 4.02.          Funding Commitments.  (a) The Members from time to time shall be obligated to provide
funds to the Company, as provided in this Section 4.02, up to the amount
specified in Section 4.02(a)(iii), which each such Member shall make by way of
a contribution of capital, in all cases, by wire transfer of immediately available
funds.


(i)            At the Additional Funding Date,
Cymer shall contribute [ . . . *
*
*  . . .] (equivalent to [ . . . *
*
*  . . .]) in cash and Zeiss LOB shall
contribute [ . . . *  *
*  . . .] (equivalent to [ . . . *
*
*  . . .]) in cash in
respect of their required funding contributions for 2006.


 


***
Confidential Treatment Requested



 8
 






 



 


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


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


(b)           If
a Member fails to contribute its required portion of any Required Funding
Contribution as and when required by this Agreement, the Company shall then
notify the Members in writing of such default, specifying the default in
reasonable detail, and if the defaulting Member shall not have cured such
default within ten business days after receipt of such default notice, such
failure shall be deemed a material breach of this Agreement and in addition to,
and without prejudice to, any and all other remedies, the non-defaulting Member
may treat such default as a “Triggering Event” pursuant to Section 11.02(a),
except that the non-defaulting Member shall be treated as the Non-Triggering
Party and the defaulting Member shall be treated as the Triggering Party
thereunder.  The foregoing shall be
exercisable by written notice from non-defaulting Member to the defaulting
Member, given within 30 days after receipt of the default notice.


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


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


ARTICLE
5 

DISTRIBUTIONS


Section 5.01.          Distributions.  After
the Effective Date, when, if and as approved by the Board or required by a
Member pursuant to Section 5.02, the Company shall make available the Net
Income of the Company for distribution to the Members (or to any Affiliate of a
Member designated by such Member) in proportion to their Percentage Interests,
and each Member agrees to vote its shares in favor of such a distribution; provided that Intellectual Property Rights owned or licensed
by the Company shall be 



 9
 






 



 


distributed
only in accordance with the Intellectual Property Agreement or otherwise upon
termination and dissolution of the Company in accordance with Article 11.  With respect to the amount to which each
Member is entitled pursuant to the preceding sentence, such Member may elect,
at its sole option, to (i) receive such amount in cash or, if so determined by
the Board or (pursuant to Section 5.02) Member, property or (ii) treat such
amount as part of such Member’s funding contribution for purposes of satisfying
its Required Funding Contribution.


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


Section 5.03.          Amounts Withheld.  The
Company is authorized to withhold from distributions to the Members and to pay
over to any governmental or regulatory authorities any amounts which it
reasonably determines may be required to be so withheld pursuant to any
provisions of any other law (local or otherwise).  All amounts withheld pursuant to any
provision of any tax law with respect to any distribution to any Member shall
be treated as amounts distributed to such Member pursuant to this Article for
all purposes under this Agreement.


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


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


ARTICLE
6 

CORPORATE GOVERNANCE


Section 6.01.          Board of Directors.  (a) Except as otherwise provided in this Agreement, the
business and affairs of the Company shall be managed by the Chief Executive
Officer (the “Chief Executive Officer”) under
the supervision of the board of directors (the “Board”).


(b)           Except
as otherwise provided in Section 10.02(b), Section 11.03 and Section 11.04, the
Board shall consist of five individuals (each a “Director”).  The Board shall consist of (X) two of such
Directors which shall be designated by Cymer, (Y) a further two of such
Directors which shall be designated by Zeiss LOB and (Z) the Chief Executive
Officer.  Each Director (i) shall hold
office until a successor shall have been duly designated or if earlier, such
Director’s death, resignation or removal and (ii) except as otherwise provided
in Section 11.03, may be removed only by the Member having designated such
Director.  A Director shall not be
entitled to appoint any person to act as his alternate.



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(c)           The
following actions may not be taken by the Company or by the Chief Executive
Officer acting on behalf of the Company without obtaining the approval of the
Board as set forth herein:


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


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


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


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


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


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


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


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


(b)           The
Member with the greater Percentage Interest shall have the right to appoint the
Chief Executive Officer of the Company, provided that
such appointment shall be subject to the approval of the other Member, which
approval shall not be 



 11
 






 



 


unreasonably
withheld or delayed.  The Chief Executive
Officer may be removed at any time by the Members.


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


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


Section 6.03.          Business Plan.  (a)
The Company will be subject to and managed in accordance with a Business Plan
(the “Business Plan”) which will cover a
rolling period of [ . . . *
*
*  . . .] Budget Years and will be revised
annually.   Such initial Business Plan
will remain in effect until modified or superseded by the Board in accordance
with the terms hereof.  The Business Plan
will include, without limitation:


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


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


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


 


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


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


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


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


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


(b)           With
respect to each Budget Year after 2005, the Chief Executive Officer will
develop and present to the Board no later than [ . . . *
*
*  . . .] of each year a proposed revised and
updated Business Plan that has been rolled forward for another year.  For the avoidance of doubt, unless a new
Business Plan is approved by the Board, the Company will be subject to and
managed in accordance with the then current Business Plan as in effect from time
to time.


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


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


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


 


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


Section 6.04.           Company Actions Requiring Consent of Members The following
actions may not be taken by the Company without obtaining the consent of all of
the Members:


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


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


(c)           redemption
or repurchase of any shares;


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


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


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


(g)           all
matters requiring Members’ approval under the Act.


Section 6.05.          Meetings of Board.  (a)
Regular Meetings.  The Board shall hold regular meetings at
least quarterly, rotating between a location in the United States determined by
Cymer and a location in Germany determined by Zeiss LOB, or such other location
as determined by the Board.  Written
notice of each meeting shall state the place, 


 


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date
and hour of such meetings, and include an agenda of matters to be considered at
the meeting.  Notice shall be given in
the manner prescribed herein not fewer than seven days nor more than 60 days
before the date thereof.


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


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


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


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


(f)            Taking Decisions. 
Except where this Agreement specifically provides otherwise, any
decision taken at a meeting of the Board shall require the consent of [. . . *
*
*  . . .] of all Directors participating at a
duly convened meeting at which a quorum is present (in person or by proxy),
provided that such [. . . *  *
*  . . .] vote must always include the vote of
[. . . *  *  *  . . .] except that the requirement that the
majority include [. . . *  *
*  . . .] shall no longer apply and decisions of
the Board shall require only the consent of a majority of the Directors
participating at a duly convened meeting at which a quorum is present (in
person or by proxy) in the event that (I) each Member is entitled to designate
a number of Directors that is in proportion to its Percentage Interest as set
forth in Section 10.02(b)(ii) of this Agreement or (II) one Member is entitled
to designate all the Directors (save for the Chief Executive Officer) pursuant
to Section 11.03.


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


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


 


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


Section 6.08.          Nature of Obligations among Members. 
Except as otherwise provided in this Agreement or by written
agreement among the Members, no Director shall have any authority to act for or
assume any obligation or responsibility on behalf of any Member or the Company,
and no Member shall have any authority to act for or assume any obligation or
responsibility on behalf of any other Member or the Company.


ARTICLE
7 

ACCOUNTING AND TAX MATTERS


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


Section 7.02.          Books and Records.  (a)
The Company shall keep, including through bookkeeping services rendered
pursuant to the Administrative Services Agreement, adequate books and records
at its principal office.  Such books and
records shall include a current list of the full name and last known business,
residence or mailing address of each Member, originals of this Agreement, and
any amendments thereto (and any signed powers of attorney pursuant to which any
such document was executed), a copy of the Company’s national and other tax
returns and reports, if any, and annual financial statements of the Company,
for the [. . . *  *
*  . . .] ([. . . *
*
*  . . .]) most recent [. . . *
*
*  . . .], and resolutions passed by the Board
and the Members.  The Company’s books of
account and business records shall be filed and preserved for a period of at
least [. . . *  *  *  . . .] ([. . . *
*
*  . . .]) [. . . *
*
*  . . .] or such longer period as required by
law.


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


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


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


ARTICLE
8 

CERTAIN COVENANTS


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


Section
8.02.          Non-Competition.  In order to ensure the requisite
level of dedication to enable the Company to offer the most competitive
products in the marketplace, until such time as a Member ceases to be, directly
or through an Affiliate, a Member of the Company (at which time such Member and
its Affiliates may become subject to the non-compete covenant set forth in
Section 11.02(b)) or the Company is dissolved, neither such Member nor any of
its Affiliates shall engage, either directly or indirectly, as a principal for
its own account or solely or jointly with others, or as a stockholder in any
corporation or joint stock association, in any business engaged in the Business
(other than the Company or as contemplated by the Joint Venture
Documents).  For the avoidance of doubt,
without limiting the generality of the foregoing covenant, it is acknowledged
and agreed that until such time as a Member ceases to be, directly or through
an Affiliate, a Member of the Company (at which time such Member and its
Affiliates may become subject to the non-compete covenant set forth in Section
11.02(b))



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or the Company is
dissolved, neither such Member nor any of its Affiliates shall knowingly supply
services, products or components for use in products or services competitive
with the Business or the Products of the Company; provided,
however, that if neither IMT nor any Person under its control continues to act
as supplier of Stages (as defined in the Supply Agreement) or other products to
the Supplier or an Affiliate of the Supplier under the Zeiss Supply Agreement,
IMT and any Person under its control shall cease to be subject to the foregoing
covenant [. . . *  *
*  . . .] after the date IMT and any person
under its control ceased to act as a supplier.


ARTICLE
9 

EXCULPATION AND INDEMNIFICATION


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


ARTICLE
10 

DISPOSITION OF INTERESTS


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


(i)            any Affiliate of such Member; or


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


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


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


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


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


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


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


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(ii)           (A) the Directors of the Transferring
Member shall be automatically removed from the Board and (B) if the
Transferring Member is [. . . *
*
*  . . .] or one of its Affiliates, then (1)
each Member shall be entitled to designate a number of Directors that is in
proportion to its Percentage Interest (three Directors for a 60% Percentage
Interest, two Directors for a 40% Percentage Interest) and the Chief Executive
Officer shall cease to be a Director, (2) actions by or decisions of the Board
shall no longer require approval by [. . . *
*
*  . . .] but shall only require approval of [.
.. . *  *  *  . . .] of the Directors participating at a
duly convened meeting at which a quorum is present (in person or by proxy) and
(3) Section 6.04(g) shall cease to be in force and effect.


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


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


(c)           Any
transferee who is admitted to the Company as a Member shall succeed to the
rights and powers (including distribution preferences), and be subject to the
restrictions and liabilities, of the transferor Member to the extent of the
Interest transferred.


ARTICLE
11 

TERMINATION, DISSOLUTION AND LIQUIDATION


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


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


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


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


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


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


(b)           If
the Non-Triggering Party has exercised its option (i) pursuant to Section
11.02(a), then effective from the consummation of the purchase of the
Triggering Party’s Interest by the Non-Triggering Party, the Triggering Party
and its Affiliates shall not for a period beginning on the date of such [. . . *
*
*  . . .] and ending on the [. . . *
*
*  . . .] of the [. . . *
*
*  . . .] of such [. . . *
*
*  . . .] or the [. . . *
*
*  . . .] of the [. . . *
*
*  . . .] (the “Non-Compete
Period”) engage, either directly or indirectly, as a principal for
its own account or solely or jointly with others, or as a stockholder in any
corporation or joint stock association, in any business engaged in the Business
(other than the Company).  For the
avoidance of doubt, without limiting the foregoing covenant, it is acknowledged
and agreed that neither the Triggering Party nor any of its Affiliates shall
knowingly supply services, products or components for use in products or
services competitive with the Business or the Products of the Company during
the Non-Compete Period (other than to the Company and its Affiliates and the
Non-Triggering Party).


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


Section 11.03.        Breach under this
Agreement or Event of Default under Supply Agreements.  If a material breach of this Agreement,
including without limitation any failure by a Member to pay its Required
Funding Contributions when due, or an Event of Default (as defined in the
Supply Agreements) on the part of the Supplier that is an Affiliate of such
Member occurs and remains unremedied for a period of 30 days following notice
thereof from the non-defaulting Member and is continuing, in addition to, and
without prejudice to, any and all other remedies, the non-defaulting Member
may, at its option, either (A) treat such default as a “Triggering Event”
pursuant to Section


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11.02(a) except that the non-defaulting Member shall
be treated as the Non-Triggering Party and the defaulting Member shall be
treated as the Triggering Party thereunder or (B) remove the two Directors on
the Board designated by the defaulting Member and designate two Directors
selected by the non-defaulting Member in its sole discretion to replace such
removed Directors to serve until such time as the material breach or Event of
Default has been remedied by the defaulting Member.  In addition to replacement of such removed
Directors, if the breach is non-payment of a Required Funding Contribution, then
without limiting the non-defaulting Member’s other rights under this Agreement,
(A) the non-defaulting Member shall have the right, in its sole discretion, to
pay the defaulting Member’s Required Funding Contribution and (B) the
non-defaulting Member’s Percentage Interest shall be increased to a percentage
equal to the quotient of (x) the sum of the cumulative contributions paid by
the non-defaulting Member since inception of the Company (including pursuant to
this Section 11.03), divided by (y) the sum of the cumulative contributions
paid by both Members (including pursuant to this Section 11.03) since inception
of the Company, and the other Member’s Percentage Interest shall be reduced
accordingly; provided that if the material
breach by the defaulting Member is willful, occurs at any time [. . . *
*
*  . . .] and remains unremedied for a period of
30 days following notice thereof from the non-defaulting Member and is
continuing, in addition to, and without prejudice to, any and all other
remedies (including pursuant to the first part of this Section 11.03), the non-
defaulting Member may treat such breach as a “Triggering Event” pursuant to
Section 11.02(a) except that the willfully defaulting Member shall be treated
as the Triggering Party thereunder and provided that
the purchase price for the willfully defaulting Member’s Interest shall be $1,
and provided further that the willfully
defaulting Member shall remain liable for its share of all Required Funding
Contributions for the Fiscal Year in which the breach occurs.


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


(b)           Supplier and Company
Interest No Longer Affiliates.  If,
as a result of a transaction or series of transactions other than a Transfer of
an Interest to a Permitted Transferee pursuant to Section 10.01(a), a Supplier
ceases to be an Affiliate of a Member without becoming an Affiliate of a Person
that, as a result of such transaction or series of transactions, becomes a
Member or an Affiliate of a Member, then the Member that was


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not an Affiliate of such Supplier immediately prior to
such transaction or series of transactions may treat such event (a “Triggering Separation”) as a “Triggering Event” pursuant to
Section 11.02(a), except that such Member shall be treated as the
Non-Triggering Party and the other Member shall be treated as the Triggering
Party thereunder.


(c)           Joint Transfer of Supplier and Company Interest.  Notwithstanding any other provision of this
Article 11 or Article 10, any Transfer of an Interest by a Member or Member
Parent, in a transaction or series of transactions, that does not result in a
Triggering Separation shall be permitted at all times, whether or not to a
Permitted Transferee, as long as the transferee is not a competitor or Major
Customer of the Member Parent of the other Member, subject to compliance with
this Section 11.04(c).  In connection
with any Transfer permitted under this Section 11.04(c), (x) the other Member
shall have a [. . . *  *
*  . . .] with respect to the Interest and
interest in or assets of the Supplier to be Transferred, and any other assets
to be transferred as part of such transaction or series of transactions, such
right to be exercised in the manner set forth in Section 10.02(a), (y) the
transferring Member or Member Parent, as the case may be, and its Affiliates
shall be subject to the non-compete covenant set forth in Section 11.02(b) as
if the transferring Member were the Triggering Party; provided
that the Non-Compete Period shall begin on the date of the [. . . *
*
*  . . .] of the Transfer and end on the [. . . *
*
*  . . .] of the [. . . *
*
*  . . .] of such [. . . *
*
*  . . .] or the [. . . *
*
*  . . .] of the [. . . *
*
*  . . .], and (z) if as a result of such
Transfer, the transferring Member and the Supplier are no longer Affiliates of
[. . . *  *  *  . . .], the composition and voting of the
Board and voting of the Members shall be modified as set forth in Section
10.02(b)(ii).  The provisions of this
Section 11.04(c) shall not apply to any Transfer of any direct or indirect
interest in a Member that could be deemed to occur as a result of a change of
control involving the relevant Member Parent.


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


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


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


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


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overseeing the winding up of the Company.  Such party (the “Liquidator”)
shall take full account of the Company’s assets and liabilities, and except as
otherwise required by law, the Company’s affairs shall be wound up in an
orderly manner in accordance with the following procedures:


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


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


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


ARTICLE
12 

MISCELLANEOUS


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


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


if to Cymer, to:


Cymer, Inc.

17075 Thornmint Court

San Diego, CA 92127-1712 USA

Attn:  Chief Financial Officer

Fax No.: (858) 385-6090


with a copy to:


Cooley Godward LLP

Five Palo Alto Square

3000 El Camino Real

Palo Alto, CA 94306-2155 USA

Attn: Gary H. Moore

Fax No.: (650) 849-7400



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if to Zeiss LOB, to:


Carl Zeiss Laser Optics Beteiligungsgesellschaft mbH

Rudolf-Eber-Strasse 2

73447 Oberkochen, Germany

Attention: Joseph Fatum

Facsimile No: 011-49-7364-208100

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


if to Zeiss SMT, to:


Carl Zeiss SMT AG

Rudolf-Eber-Strasse 2

73447 Oberkochen, Germany

Attention: Dr. Hermann Gerlinger

Facsimile No: 011-49-7364-208100

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


or to such other
address or facsimile number as any such party may hereafter specify for the
purpose by notice to the other parties. 
Each such notice, request or other communication shall be effective when
received at the address specified in this Section 12.01, or such other address
or facsimile number as such party may hereafter specify for the purpose by
notice to the other parties hereto.  All
such notices, requests and other communications shall be deemed received on the
date of receipt by the recipient thereof if received prior to 5:00 p.m. in the
place of receipt and such day is a business day in the place of receipt.  Otherwise, any such notice, request or
communication shall be deemed not to have been received until the next
succeeding business day in the place of receipt.


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


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


Section 12.03.        Expenses.  All costs
and expenses incurred by the parties hereto in connection with this Agreement
shall be paid by the party incurring such cost or expense.


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


Section 12.05.        Successors and
Assigns.  This Agreement is
personal to the Members and may not be assigned or otherwise transferred by a
Member except to a transferee of such Member’s Interest in connection with a
transfer permitted by and made in accordance with the terms hereof.  Any purported assignment or other transfer in


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violation of this Agreement shall be null and
void.  The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective permitted successors and assigns. 
This Agreement is for the sole benefit of the parties hereto and, except
as otherwise contemplated herein, nothing herein expressed or implied shall
give or be construed to give any Person, other than the parties hereto, any
legal or equitable rights hereunder.


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


Section 12.07.        Entire Agreement.  This
Agreement and any documents referred to herein or therein, constitutes the entire
agreement of the Members with respect to the subject matter hereof
Provided however that nothing herein shall affect the full force and effect of
the Original JV Agreement until this Agreement comes into effect on the
Effective Date.


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


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


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


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


Section 12.11.        Counterparts;
Effectiveness.  This Agreement
may be signed in any number of counterparts, each of which shall be deemed an
original.  This Agreement


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shall become effective only after and subject to each
party having received a counterpart hereof signed by each of the other parties.


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


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


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


 


	
  

  	
  TCZ GMBH

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Brian C. Klene

  
	
   

  	
   

  	
   

  	
  Name: Brian C. Klene

  
	
   

  	
   

  	
   

  	
  Title:   President and CEO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CYMER, INC.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Nancy J. Baker

  
	
   

  	
   

  	
   

  	
  Name: Nancy J. Baker

  
	
   

  	
   

  	
   

  	
  Title:   Sr. Vice President and CFO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CARL ZEISS LASER OPTICS 

  
	
   

  	
  BETEILIGUNGSGESELLSCHAFT MBH

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Axel Jaeger

  
	
   

  	
   

  	
   

  	
  Name: Axel Jaeger

  
	
   

  	
   

  	
   

  	
  Title:   Managing Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CARL ZEISS SMT AG

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ H. Gerlinger

  
	
   

  	
   

  	
   

  	
  Name: Dr. Hermann Gerlinger

  
	
   

  	
   

  	
   

  	
  Title:   CEO

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ ppa. Stephan Müller

  
	
   

  	
   

  	
   

  	
  Name: Stephan Müller

  
	
   

  	
   

  	
   

  	
  Title:   Director

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TCZ PTE. LTD.

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Brian C. Klene

  
	
   

  	
   

  	
   

  	
  Name: Brian C. Klene

  
	
   

  	
   

  	
   

  	
  Title:   President and CEO

  
	
   

  	
   

  	
   

  	
   

  



 



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