Exhibit 10.30


 


	
  Execution
  Copy

  	
   

  	
  Nov.14, 2002

  



 


AMENDED AND RESTATED LICENSE AGREEMENT


 


BETWEEN


 


INTERNATIONAL BUSINESS MACHINES CORPORATION


 


AND


 


IBIS TECHNOLOGY CORPORATION


 


 




	
  FIA-2000-0027

  	
   

  	
  IBM/IBIS CONFIDENTIAL

  
	
  IBIS
  Know-How License 12-18-2000 Amended and Restated

  	
   

  	
   

  






 


1

















 


TABLE OF CONTENTS


 


	
  Section

  	
   

  	
  Page

  
	
  1.

  	
  DEFINITIONS
  

  	
  4

  
	
   

  	
   

  	
   

  
	
  2.

  	
  SCOPE 

  	
  7

  
	
   

  	
   

  	
   

  
	
  3.

  	
  LICENSES
  

  	
  9

  
	
   

  	
   

  	
   

  
	
  4.

  	
  CONFIDENTIAL INFORMATION 

  	
  9

  
	
   

  	
   

  	
   

  
	
  5.

  	
  COMPENSATION
  

  	
  13

  
	
   

  	
   

  	
   

  
	
  6.

  	
  TERMINATION
  

  	
  17

  
	
   

  	
   

  	
   

  
	
  7.

  	
  REPRESENTATIONS AND
  DISCLAIMERS 

  	
  19

  
	
   

  	
   

  	
   

  
	
  8.

  	
  TECHNOLOGY
  TRANSFER  & TECHNICAL ASSISTANCE 

  	
  22

  
	
   

  	
   

  	
   

  
	
  9.

  	
  APPLICABLE LAW 

  	
  24

  
	
   

  	
   

  	
   

  
	
  10.

  	
  MISCELLANEOUS
  

  	
  26

  



 


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    This Amended and Restated License Agreement (the “Agreement”)
is by and between International Business Machines Corporation
(referred to as “IBM”) and IBIS Technology Corporation (referred to as
“IBIS”), each referred to as a “Party” or, collectively referred to as the
“Parties”.


 


WHEREAS:                                       IBIS has previously developed expertise in products for the
implantation and annealing of semiconductor wafers with oxygen;


 


WHEREAS:                                     IBM has developed an improved method of implantation and
annealing;


 


WHEREAS:                                   IBIS wishes to operate in its facility implantation machines
and associated equipment owned by IBM and/or owned by IBIS;


 


WHEREAS:                                   IBIS and IBM have executed agreements on the consignment of
such implantation machines and associated equipment and on the purchase of
wafers by IBM implanted and annealed by IBIS;


 


WHEREAS:                                   Concurrently with this Agreement, IBIS and IBM are entering
into an agreement defining the joint development by IBIS and IBM of an enhanced
process for implanting silicon wafers with oxygen and/or other ions and
annealing such wafers (hereinafter referred to as the “Joint Development
Agreement”);


 


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WHEREAS:                                   IBIS wishes to sell products incorporating IBM’s trade
secrets; and


 


WHEREAS:                                  IBM wishes to receive royalties from IBIS;


 


 NOW THEREFORE, in consideration of the contributions of knowledge
and skill in the areas of their respective expertise, in the cooperative undertaking specified herein, and in view
of the mutual promises, commitments and efforts relating thereto, it hereby is
agreed between the Parties that as of November 14, 2002 this Agreement is
amended and restated as follows:


 


1      DEFINITIONS


 


    Words shall have their normally accepted meanings as employed
in this Agreement.  The terms “herein”,
“hereunder” and “hereof”, unless specifically limited, shall refer to the
entire Agreement.  The words “shall” and
“will” are mandatory, the word “may” is permissive, the word “or” is not
exclusive, the words “includes” and “including” are not limiting and the
singular includes the plural.  The
following terms shall have the described meanings:


 


1.1                                 “Confidential Information” shall mean technical and business
information relating to oxygen implantation and annealing methods and


 


4

















 


disclosed
by or on behalf of a Party that is subject to the applicable restrictions on
disclosure of this Agreement.


 


1.2                                 “Consigned Equipment” shall mean the following equipment
presently owned by IBM: two model 1000 oxygen implant tools manufactured by
IBIS (IBM tool numbers 36F1070AA and 36F107AD),  Kokusai Furnace
(12J0503AA), Mini-environment (15J0518AA), IPEC Accumap (15J0525AA) and Mapper
(15J0521AA).


 


1.5                                 “Effective Date” shall mean December 15, 2000.


 


1.6                                 “IBM Improvements” shall mean any change, upgrade,
modification or revision actually introduced into the Licensed Process by IBM
and practiced in production of implanted wafers in IBM’s East Fishkill facility
or in a substitute IBM facility.


 


1.7                                 “Licensed Process” shall mean the process for implanting
silicon wafers with oxygen and annealing, as practiced for commercial
production in IBM’s East Fishkill, NY, facility on the Effective Date, referred
to within IBM as Routes 7N00, 7V00, 7A00 and 2V00.  IBM represents that the twenty (20) wafers delivered to IBIS on
or about November 10, 2000 were implanted and annealed with the Licensed
Process.  The Licensed Process shall
include IBM Improvements only if such IBM Improvements are subsequently
licensed to IBIS.  The Licensed Process
shall further include the Enhanced Process, as defined in the Joint Development
Agreement.


 


1.8                                 “Licensed Product” shall mean: (a) silicon wafers or
substrates implanted with oxygen and annealed according to, with the aid of,
based on


 


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or using information disclosed hereunder (including the
Licensed Process) that, as of the date of disclosure, is not excluded from the
obligations of confidentiality by the provisions of Section 4.6; and (b)
semiconductor devices and integrated circuits formed on silicon substrates
licensed according to the preceding clause.


 


1.9                                 “Net Revenue” shall mean the price charged or recognized (as
determined under United States generally accepted accounting principles) for
Licensed Products sold by IBIS in normal, bona fide, commercial transactions,
without any deductions other than for duties, taxes, freight and insurance,
returns or credit allowances on sales of such Licensed Products to the extent
to which such deductions are actually paid or allowed.


 


    In the case of Licensed Products sold to a Subsidiary or
other entity in other than an arm’s length transaction, Net Revenue shall be
deemed to be the greater of: (a) gross receipts actually received; or (b) gross
receipts recognized (as determined under United States Generally Accepted
Accounting Principles) for Licensed Products based upon the invoice price
generally available to unaffiliated third parties for the sale, lease or
disposition of similar quantities of the same type of products or services;
without any deductions other than for duties, taxes, freight and insurance,
returns or credit allowances on sales of such Licensed Products to the extent
to which such deductions are actually paid or allowed.


 


1.10                           “Subsidiary” shall mean a corporation, company, or other
entity: (i) more than fifty percent (50%) of whose outstanding shares or
securities (representing the right to vote for the election of directors or
other managing authority) are, now or hereafter, owned or controlled, directly
or indirectly,


 


6

















 


by a Party hereto, but such corporation, company, or other
entity shall be deemed to be a Subsidiary only so long as such ownership or
control exists; or (ii) which does not have outstanding shares  or
securities, as may be the case in a partnership, joint venture or
unincorporated association, but fifty percent (50%) or more of whose ownership
interest representing the right to make the decisions for such corporation,
company or other entity is, now or hereafter, owned or controlled, directly or
indirectly, by a Party hereto, but such corporation, company, or other entity
shall be deemed to be a Subsidiary only so long as such ownership or control
exists.


 


    Notwithstanding the foregoing, for the purposes of this
Agreement, an entity more than 35% of whose shares or ownership interest is
owned or controlled by a Party and that has a licensing relationship with such
Party covering manufacturing process knowhow and imposing obligations on such
Party to provide updated knowhow to such entity shall be deemed to be a
Subsidiary of such Party.


 


1.11                           “Term” shall mean the period of time this Agreement is in
effect, which will commence on the Effective Date and continue until the
expiration of a patent license agreement between the parties executed together
herewith, unless sooner terminated pursuant to Section 7.


 


2    SCOPE


 


2.1                                 IBIS agrees to make commercially reasonable efforts to market
and sell Licensed Products.


 


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2.2                                 IBIS has, at its own expense, transferred the Consigned
Equipment once located in IBM’s facility in East Fishkill, NY to IBIS’ facility
in Danvers, MA, and installed and powered on the Consigned Equipment.  IBIS has, at its own expense, exerted its
best commercial efforts to debug and make available for production the
Consigned Equipment.  Terms for the
consignment of the Consigned Equipment are set forth in the consignment
agreement that was executed between the Parties on or about the Effective Date.


 


2.3                                 IBM shall disclose the Licensed Process to IBIS as set forth
in Section 8 below.


 


2.4                                 Each Party shall have a Program Manager and a Technical
Coordinator as follows:


 


	
  For
  IBM:

  	
  Program
  Manager:

  
	
   

  	
  Daniel
  J. Armbrust

  
	
   

  	
   

  



 


8

















 


 


	
   

  	
  Technical
  Coordinator:

  
	
   

  	
  Devendra
  K. Sadana

  
	
   

  	
   

  
	
  For
  IBIS:

  	
  Program
  Manager:

  
	
   

  	
  Martin
  J. Reid

  
	
   

  	
   

  
	
   

  	
  Technical
  Coordinator:

  
	
   

  	
  Robert
  P. Dolan

  



 


Each
Party may change its Program Manager and/or Technical Coordinator by giving
written notice to the other Party.


 


2.5                                   Each of the Program Managers shall be responsible for the
representation of his Party’s interest under this Agreement.  The Program Managers shall meet on a regular
basis to review progress.


 


2.6                                   The Technical Coordinators or their designees shall supervise
the exchange of information during the course of the Agreement.


 


3    LICENSES


 


3.1                                     IBM hereby grants to
IBIS a worldwide, nonexclusive royalty-bearing license, revocable only pursuant
to Section 6, under IBM’s trade secret rights in the Licensed Process to make,
import, export and sell Licensed Products.


 


3.2                                   No license is granted in this agreement by a Party to another
Party under any patent or trademark.


 


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3.3                                   Nothing in this Agreement shall be construed as amending or
modifying in any way a patent license agreement between the parties signed
concurrently herewith.


 


4    CONFIDENTIAL
INFORMATION


 


4.1                                   The prior agreement between the Parties concerning
confidential information, having a term beginning on March 24, 2000 and
relating to oxygen implantation technology and methods, is terminated as of the
Effective Date and all information disclosed thereunder shall be deemed to have
been disclosed on the Effective Date.  The
handling of all confidential information exchanged between the Parties,
including any confidential information transferred under the prior agreement
shall be in accordance with this Section 4. 
All further disclosures of confidential information shall only be made
in accordance with this Section 4.


 


4.2                                   It is understood that receipt of Confidential Information
under this Agreement will not create any obligation in any way limiting or
restricting the assignment and/or reassignment of employees within the
receiving Party.


 


4.3                                   For a confidentiality period as set forth below, the
receiving Party agrees to use the same care and discretion to safeguard
Confidential Information of the disclosing Party and to avoid release of such
Confidential Information outside of the receiving Party as it employs with
similar embodiments of information of its own which it does not desire to
publish, disclose, or disseminate, but in no event less than reasonable care.


 


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4.4                                   Following the period of confidentiality as specified below,
no obligation of any kind is assumed by, or is to be implied against the
receiving Party with respect to any Confidential Information of the disclosing
Party and the receiving Party will be free to disclose, publish and disseminate
such Confidential Information to others without limitation.


 


4.5                                  Disclosure
of such Confidential Information of the disclosing Party will not be precluded
if such disclosure is:


 


(a)               in response to a valid order of a court or other governmental
body; provided, however, that the receiving Party will first have given notice
to the disclosing Party and made a reasonable effort to obtain a protective
order requiring that the information and/or documents so disclosed be used only
for the purposes for which the order was issued; or


 


(b)              otherwise required by law (including, without limitation,
applicable securities laws).


 


4.6                                   The obligations of confidentiality herein shall not apply to
information that:


 


(a)               Is already in the possession of the receiving Party or any of
its Subsidiaries without obligation of confidentiality;


 


(b)              Is independently developed by the receiving Party or any of
its Subsidiaries;


 


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(c)               Is or becomes publicly available without breach of this
Agreement;


 


(d)              Is rightfully received by the receiving Party from a third
party;


 


(e)               Is released for disclosure by the disclosing Party with its
written consent; or


 


(f)                 Is required to be disclosed in a patent application.


 


4.7                                   All disclosures under this Agreement of Confidential
Information by IBM or IBIS, as the disclosing Party, shall preferably be made
by or under the supervision of its Technical Coordinator, or his designee, to
the receiving Party’s Technical Coordinator, or his designee.  Any such designee shall be identified by a
Party’s Technical Coordinator in writing to the Technical Coordinator of the
other Party.  In the event of
inadvertent disclosure from one Party to another, either Party may give notice
to the other Party within six (6) months of such inadvertent disclosure that
such inadvertently disclosed information was confidential and not within the
scope of this Agreement and the receiving Party shall promptly return such
information and cease use thereof.


 


4.8                                   All disclosures of information will be deemed to be
nonconfidential unless specifically designated at the time of disclosure as
including the Confidential Information of a Party.


 


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4.8.1                        Notwithstanding the foregoing, Inventions created and
Confidential Information disclosed in the course of joint work or discussions
between the Parties shall be deemed to be the Confidential Information of the
employer(s) of the individuals creating or disclosing them, whether or not the
pertinent information is marked or summarized in a resume.  The Parties agree to make reasonable efforts
to document and mark such joint work or discussions.


 


4.9                                   IBIS’s obligations of confidentiality with respect to the
Licensed Process shall extend until December 31, 2017.  The confidentiality obligations of the
Parties with respect to confidential information disclosed hereunder, other
than the Licensed Process, shall extend until December 31, 2007.


 


5    COMPENSATION


 


5.1                                   IBIS has paid to IBM a nonrefundable technology transfer fee
of [*] upon the signing of this Agreement.


 


5.2                                   From the Effective Date, and continuing through the Term, for
each Licensed Product sold, IBIS shall pay to IBM in the United States of
America a royalty comprising [*] of Net Revenue for each such Licensed Product
sold by IBIS.


 


5.3                                   The royalties of this Section 5 shall accrue when a Licensed
Product is first sold. For the purpose of determining such royalty, Licensed
Products shall be considered sold when invoiced.  If not invoiced, then Licensed Products are to be considered sold
when delivered or when paid for, if paid for before delivery.  If not invoiced, delivered or paid for
before delivery,












*
Confidential treatment has been requested for the language omitted and such language
has been separately filed with the Securities and Exchange Commission.


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Licensed Products are to be considered sold
at the earlier of when put into use or when possession is transferred to a
third party.  When Licensed Products are
sold in conjunction with other products or services provided by IBIS, IBIS
agrees to separately invoice such Licensed Products from such other products or
services.


 


5.4                                   Accrued royalties shall be calculated and paid on a quarterly
basis.  Within thirty (30) days of the
end of a calendar quarter, IBIS shall deliver to IBM a report showing the
number and identification (type and wafer size) of Licensed Products sold
during such quarter, the Net Revenue from such Licensed Products during such
quarter, and the royalties payable thereon. 
At such time, IBIS shall also make payment of such payable
royalties.  Any royalties paid to IBM
are nonrefundable, but overpayments shall be credited against future royalties
due hereunder.  IBIS may deduct from the
accrued royalties calculation in this Section 6.6 those royalties accrued on
Licensed Products which have been returned to IBIS or for which credit
allowances have been made.


 


5.5                                   For a period ending two (2) years after the expiration or
termination of this Agreement, IBIS agrees to maintain adequate documentation
and accounting records for demonstration of compliance with all the provisions
of this Agreement, including the provisions concerning disclosure and use of
the Licensed Process.  At IBM’s request
and expense, and upon thirty  (30) days
written notice to IBIS, IBIS shall permit IBM or a mutually acceptable
independent third party auditor and/or technical expert to review all such
documentation and accounting records and/or to inspect IBIS’s facilities during
regular business hours.


 


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5.6                                   IBIS shall be liable for interest on any and all overdue
payments, fees, and royalties required to be made to IBM under this Agreement,
commencing on the date such overdue payment, fee, or royalty becomes due, at an
annual rate of eighteen per cent (18%). 
If such interest rate exceeds the maximum legal rate in the jurisdiction
where a claim therefor is being asserted, the interest rate shall be reduced to
such maximum legal rate.  Nothing in
this Section 5.6 shall limit IBM’s rights under Section 6.


 


5.7                                   IBIS shall bear and pay, and indemnify and hold IBM harmless
from any and all taxes (including, without limitation, sales, use, royalty, value
added, and property taxes) imposed by any national government (including any
political subdivision thereof) of any country, as the result of the existence
of this Agreement or the exercise of rights hereunder, and IBM shall not be
responsible for any taxes that arise from the foregoing.  Notwithstanding the foregoing, IBIS shall
not be liable for any taxes or assessments arising from the purchase by IBM of
goods and services hereunder or based on the net income of IBM.


 


5.8                                   IBIS shall pay all royalties and other payments due hereunder
in the United States of America in United States dollars.


 


5.9                                   All royalties, fees, and payments to IBM that result from
this Agreement are to reference this Agreement and the license number assigned
thereto and be sent by electronic funds transfer to the following address:


 


    International Business Machines Corporation


    The Bank of New York


    1 Wall Street


    


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New York, New York 10286


    United States of America


    Credit Account No. 
890-0209-674


    ABA No.  0210-0001-8


 


    A written statement containing the same information shall be
mailed to:


 


    Director of Licensing


    International Business Machines Corporation


    North Castle Drive, MD - NC119


    Armonk, New York, 10504-1785


    United States of America


    FAX: (914) 765-4380


 


with a copy to:


    


Michael Poponiak


    International Business Machines Corporation


    2070 Route 52


    Hopewell Junction, NY 12533;


 


    Each Party may change the person to receive notice or its
address for receiving notice by giving written notice to the other Party.


 





6    TERMINATION


 


6.1                                   In the event of any material default, the non-defaulting
Party may give written notice of such default (a “Notice of Default”) to
the defaulting Party.  If the defaulting
Party fails to cure such default within a cure period of thirty (30) days after
receiving the Notice of Default, the non-defaulting Party may then terminate
this Agreement by a second written notice (a


 


16

















 


“Notice of Termination”) to the defaulting Party.  The Notice of Termination shall be effective
upon receipt.


 


6.2                                   Notwithstanding Section 6.1, in the event of any material
default specified in this Section 6.2, the non-defaulting Party may immediately
terminate this Agreement by giving a Notice of Termination without any Notice
of Default.  The Notice of Termination
shall be effective upon receipt. 
Circumstances where such immediate termination is permitted by a Party
are:


 


(a)               If the other Party becomes insolvent, is dissolved or
liquidated, has a petition in bankruptcy, reorganization, dissolution or
liquidation or similar action filed by or against it, is adjudicated a
bankrupt, or has a receiver appointed for its business.


 


(b)              If the other Party has all or a substantial portion of its
capital stock or assets expropriated or attached by any government entity.


 


(c)               If the other Party makes an assignment for the benefit of
creditors.





 


(d)            If the other Party is subject to property attachment, court injunction,
or court order materially affecting its operations under this Agreement.


 


(e)               If the other Party breaches its obligation of confidentiality
under Section 4.


 


17

















 


    Circumstances where such immediate termination is permitted
by IBM are:


 


(f)               If IBIS materially breaches the terms of its license       under Section 3.


 


6.3                                   If this Agreement is terminated by IBM due to material
default under this Agreement by IBIS:


 


(a)       all IBM Confidential Information previously transferred to,
or in the possession of, IBIS shall be returned, at IBIS’s expense, to IBM
forthwith, but no later than thirty (30) days from the date of termination; (b)  the licenses granted to IBIS in Section 3 shall terminate.


 


6.4                                   If this Agreement is terminated by IBIS due to material
default under this Agreement by IBM:


 


(a)               the licenses (and royalty obligations) of Section 3.1 and 5
shall survive; and b) each Party’s obligations of confidentiality shall
survive.


 


6.5                                   In the event of termination by either Party for any reason,
all financial obligations due or accrued hereunder as of the date of
termination shall remain payable.


 


6.6                                   Except as stated in Sections 6.3, 6.4, and 6.5, to the extent
a particular right or obligation herein does not have a specifically identified
survival period, all rights and obligations in this Section or in any other
Section in this Agreement which by their nature survive the expiration or


 


18

















 


termination of this Agreement will remain
in effect beyond any termination for the time period reasonably necessary to
accomplish their purpose and shall bind and inure to the benefit of the
parties, their legal representatives and successors.  By way of example and not as a limitation, sections 7, 9 and 10
shall survive any expiration or termination of this Agreement.


 


7    REPRESENTATIONS
AND DISCLAIMERS


 


7.1                                   IBIS recognizes that equipment and wafer purchases are
complex decisions and that IBM can make no commitment that IBM or IBM’s
Subsidiaries will purchase any products from IBIS.


 


 


7.2                                   This Agreement is nonexclusive.  IBM and IBIS recognize and agree that each has been and may
continue to be active in the development of technology, and/or manufacture and
sale of products indirectly or directly relating to the technologies, processes
and products contemplated by this Agreement, and IBIS acknowledges and agrees
that IBM will not be precluded by this Agreement from pursuing such activities
independent of IBIS, including with third parties, and further, IBM
acknowledges and agrees that IBIS will not be precluded by this Agreement from
pursuing such activities independent of IBM, including with third parties.


 


7.3                                   IBM and IBIS each represent that they have the right to disclose
the information disclosed hereunder and to grant the licenses granted
hereunder.


 


7.4                                   Nothing contained in this Agreement will be construed as:


 


19

















 


7.4.1                        conferring on either Party any rights to use in advertising,
publicity, or other marketing activities any name, trade name, trademark, or
other designation of the other Party hereto, including any contraction,
abbreviation, or simulation of any of the foregoing without the prior written
and signed agreement of the other Party; or


 


7.4.2                        conferring by implication, estoppel, or otherwise upon either
Party hereunder any license or other right except the licenses and rights
expressly granted hereunder to a Party hereto; or


 





7.4.3                        a warranty or representation that the manufacture, sale,
lease, use, or other disposition of systems, processes, circuits, devices,
packages, software, and products licensed hereunder will be free from
infringement of intellectual property rights of third parties; or


 


7.4.4                        a warranty that the recipient Party will successfully
manufacture products, or a particular volume of products, using the Licensed
Process; or


 


7.4.5                        an obligation on either Party to bring or prosecute actions
or suits against third parties for infringement, or to defend actions or suits
from third parties for infringement, or to secure and/or maintain any of its
intellectual property rights; or


 


7.4.6                        in any way limiting the rights which a Party has outside the
scope of this Agreement.


 


7.5                                   ALL INFORMATION, TECHNOLOGY, IMPROVEMENTS, INVENTIONS,
CONFIDENTIAL INFORMATION, INTELLECTUAL PROPERTY RIGHTS,


 


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BACKGROUND INTELLECTUAL PROPERTY RIGHTS, LICENSED PROCESS,
PRODUCTS, MATERIALS, ASSISTANCE, AND SERVICES PROVIDED BY EITHER PARTY
HEREUNDER ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY OF NONINFRINGEMENT AND THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.


 


 


7.6                                   Each Party acknowledges its responsibility to make its own
evaluation of the risks of bringing any product based on information provided
under this Agreement to market, or otherwise to use such information.


 


7.7                                   Each Party disclaims any warranty that the recipient will be
able to reproduce the results of the disclosing Party and each Party
acknowledges that it may be not be able to use disclosed information without
further research and development.


 


7.8                                   IBM disclaims any warranty under Section 2-312 of the Uniform
Commercial Code that the information disclosed hereunder or that the transfer
by IBIS of articles made by IBIS with the aid of such information will be free
of claims of infringement of patents of third parties.  IBIS disclaims any warranty under Section
2-312 of the Uniform Commercial Code that information disclosed hereunder or
that the transfer by IBM of articles made by IBM with the aid of the such
information will be free of claims of infringement of patents of third parties.  Nothing in this Agreement will override
these disclaimers or operate, expressly or by implication, to grant a warranty
of noninfringement of third party patents.


 


21

















 


8  TECHNOLOGY TRANSFER AND TECHNICAL
ASSISTANCE


 


8.1                                   Subject to Sections 8.2 and 8.3 and with the sole exception
of the Enhanced Process, IBM has provided to IBIS in IBM’s facilities in the
United States the recipe for the Licensed Process and limited technology
transfer and technical assistance in operation, setup and qualification
procedures for the Licensed Process.





 


8.2                                   During the period from the Effective Date through three (3)
months from the Effective Date, IBM has provided at no additional cost to IBIS
technology transfer and technical assistance as provided in Section 8.1 up to a
total limit of [*]


 


8.3                                   The IBM and IBIS Technical Coordinators shall keep accurate
records of all limited technical assistance performed and shall compare records
for accuracy and provide access to such records to the other Party once a quarter
or pursuant to a schedule mutually agreed to. 
Queries made by IBIS from its facilities shall be logged at a minimum of
one person-hour.


 


8.4                                   IBIS, at its own cost and expense, shall be responsible for
acquiring the necessary equipment, materials, and services required to
implement the Licensed Process.


 


8.5                                   After the earlier to occur of the exhaustion of the [*]
person-hours of the limited transfer assistance and limited technical
assistance specified in Sections 8.1 and 8.2 and the expiration of the three
month period specified in Section 8.2, IBM agrees to provide, in IBM’s
facilities in the U.S.A., up to an additional [*] person-hours of transfer
assistance and technical assistance to












*
Confidential treatment has been requested for the language omitted and such
language has been separately filed with the Securities and Exchange Commission.


 


22

















 


IBIS, subject to the availability of requisite personnel
within IBM, for a period ending on six (6) months after the Effective
Date.  IBIS agrees to pay IBM for such
limited additional transfer and technical assistance provided to IBIS at a rate
that is the higher of [*] dollars per person-hour or the then-current rate,
plus reasonable travel and living expenses. 
IBIS may make site visits to IBM’s East Fishkill facilities upon
reasonable notice to IBM and upon mutual agreement of the Parties.  A maximum of five (5) IBIS employees may
visit IBM’s facilities at any one time. 
The travel and living expenses of such visiting IBIS employees shall be
at the sole expense of IBIS.  The amount
of limited additional transfer assistance and technical assistance shall be
defined and determined by mutual agreement.


 


8.6                                   IBM shall invoice charges monthly for the limited additional
transfer assistance and technical assistance provided for in this


Section 8.


 


8.7                                   IBM shall be under no obligation hereunder to provide
transfer or technical assistance to any person or entity other than IBIS, and
in particular, not to suppliers or customers of IBIS.


 


8.8                                   IBM will not be obligated to disclose to or to grant rights
under IBM Improvements to IBIS, but may make such disclosure and/or grant such
rights in its sole discretion.












*
Confidential treatment has been requested for the language omitted and such
language has been separately filed with the Securities and Exchange Commission.


 


23

















 


 


9    APPLICABLE
LAW


 


9.1                                   This Agreement shall be construed and the legal relations
between the Parties shall be determined in accordance with the law of the State
of New York, U.S.A. without regard to the conflict of law provisions
thereof.  Any proceedings to enforce
this Agreement, or to resolve disputes relating to this Agreement, shall be
brought in the United States District Court for the Southern District of New
York, Westchester County Division and the Parties hereby consent to the
exclusive jurisdiction and venue of such court.  IBM and IBIS waive the right to trial by jury in any matter
relating to this Agreement and agree that any proceeding hereunder shall be
tried by a judge without a jury.


 


9.1.1                        No action, regardless of form, arising out of this   Agreement may be brought by a Party more than two (2) years
after the cause of action has accrued.


 


9.2                                   Each Party agrees to pay the other Party’s attorney’s fees
and costs of litigation if the first Party, for any reason whatever, brings
suit against the other Party and the other Party is finally adjudicated not to
have liability.


 


9.3                                   If any sentence, paragraph, clause or combination of the same
in this Agreement is held by a court of competent jurisdiction to be
unenforceable in any jurisdiction, such sentence, paragraph, clause or
combination of same shall be unenforceable in the jurisdiction in which it is
invalid and the remainder of this Agreement shall remain binding on the Parties
in such jurisdiction as if such unenforceable provision had not been contained
herein.  The enforceability of such
sentence, paragraph, clause or combination of same in this Agreement, shall be
otherwise unaffected and shall remain enforceable in all other jurisdictions.


 


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10    MISCELLANEOUS


 


10.1                           IBIS shall indemnify, defend and hold harmless IBM, IBM
Subsidiaries at any level, and the affiliates, directors, officers, agents and
employees of each of IBM and IBM Subsidiaries at any level (collectively, the “Indemnified
Persons” and each, an “Indemnified Person”) from and against:


 


    (1)  all claims,
demands, costs, liabilities, causes of action, actions, obligations, and
damages (including without limitation, reasonable attorneys’ fees, claims,
demands or damages for business injury, property damage, environmental harm,
personal injury, and/or death, but excluding claims, demands or damages
relative to any third party’s intellectual property rights which are covered by
item (2) below) of every kind and every nature, in law or in equity, known or
unknown, contingent or otherwise, past, present, or future brought by or on
behalf of any third party related to, arising from, or alleged to arise from
IBIS’s (or any IBIS Subsidiaries’ or any IBIS affiliates’) development,
manufacture, use, misuse, advertising, labeling, marketing, sale, license,
transfer, transportation, storage, support, modification, distribution or
disposal of (a) any Confidential Information, IBM Improvements, Licensed
Product, Consigned Equipment, or Licensed Process (b) any other use of
Confidential Information, IBM Improvements, Licensed Product, Consigned
Equipment, or Licensed Process; and


    


(2)  all claims,
demands, costs, liabilities, causes of action, actions, obligations, and
damages (including without limitation, reasonable attorneys’ fees and/or
claims, demands or damages for business injury) brought by or on


 


25

















 


behalf
of any third party related to, arising from, or alleged to arise from any
violation of any third party’s intellectual property rights in any country by
(a) the use of any Confidential Information, IBM Improvements, Consigned
Equipment, Licensed Process or related process, or Licensed Product
manufactured, sold, licensed or transferred by IBIS (or by any IBIS Subsidiary
or any IBIS affiliate) by any party other than IBM or IBM Subsidiaries, or (b)
the sale, license or transfer of any Confidential Information, IBM
Improvements, Consigned Equipment, Licensed Process or related process, or
Licensed Product by IBIS (or by any IBIS Subsidiary or any IBIS affiliate) to
any party other than IBM or IBM Subsidiaries. 
IBM’s Subsidiaries at any level, and the affiliates, directors,
officers, agents and employees of each of IBM and IBM Subsidiaries at any level
shall continue to be indemnified, defended and held harmless per subsections
(1) and (2) of this Section 10.1 even after they cease to be such Subsidiaries,
affiliates, directors, officers, agents and employees.  Notwithstanding the foregoing, IBIS’
obligations of indemnification to IBM with respect to third party claims based
on: (a) the purchase of implanted wafers by IBM from IBIS; (b) the implantation
by IBIS of wafers supplied to it by IBM and subsequent shipment of such wafers
to IBM; or (c) the use by IBM of implanted wafers included in (a) and (b) above
shall be governed by terms no less favorable to IBM as those set forth in
purchase agreements or services agreements between IBIS and third parties for
comparable  wafers.


 


    (3)  IBIS and IBIS’s
Subsidiaries at any level and affiliates of IBIS release and covenant that they
will not sue or otherwise make any claim against any Indemnified Person,
regarding any matter which, if it had been the subject matter of a suit brought
by a third party, would be subject to the provisions of Section 10.1(1) and (2)
above.  Each Indemnified Person shall
continue to be released and the covenantors shall continue to covenant to


 


26

















 


them
as provided above even after they cease to be IBM, an IBM Subsidiary at any
level, or an affiliate, director, officer, agent or employee of IBM or an IBM
Subsidiary at any level.  If IBIS or any
IBIS Subsidiary at any level or any IBIS affiliate violates this subsection (3)
of Section 10.1, IBIS agrees to pay all costs and expenses of defending against
such claim or suit incurred by any Indemnified Person, including reasonable
attorneys’ fees.  IBIS shall cause
IBIS’s Subsidiaries at any level and affiliates of IBIS or any IBIS Subsidiary
at any level to so release and not sue the Indemnified Persons as provided
above.


 


10.1.1                  Without limiting Section 10.1, above, IBIS agrees to pay all
expenses of the defense, including any amount in settlement, of all claims,
demands, proceedings and actions which may be asserted against any of the
indemnitees specified in Section 10.1, regardless of merit, and agrees to
permit IBM, at IBM’s expense, to actively participate in the defense or
settlement of any of the claims demands, proceedings or actions described above
and, in any claim or action brought against IBIS and not IBM, at the option of
IBM, to permit IBM, at IBM’s expense, to intervene in or become a party to any
such claims, demands, proceedings or actions. 
IBM agrees to permit IBIS, at IBIS’s expense and option, to actively
participate in the defense or settlement of any of the claims or actions
described above and, in any such action brought against IBM and not IBIS.  Each Party shall promptly notify the other
Party of any action, suit, proceeding, claim or demand of which it becomes
aware and relating to the indemnification obligations under Section 10.1.


 


10.2                           IBIS will be solely responsible for determining its prices
and other terms and conditions for its products sold to its customers.  IBIS will be solely


 


27

















 


responsible for marketing products to its customers, and IBM
will have no obligation to provide any support of any kind to IBIS’s customers.


 


10.3                           If any Party is rendered wholly or partially unable by force
majeure to carry out its obligations under this Agreement, and if that Party
gives prompt written notice and full particulars of such force majeure to the
other Party, the notifying Party will be excused from performance of its
obligations hereunder during the continuance of any inability so caused, but
for no longer period; provided that if payment cannot be made due to the
existence of a banking crisis or international payment embargo, such amount may
be paid within the following thirty (30) days. 
Such cause will be remedied by the notifying Party as far as possible
with reasonable speed and effort.  For
the purposes of this Agreement, force majeure will mean acts of God, acts of
public enemies or terrorists, wars, other military conflicts, blockades,
insurrections, riots, epidemics, quarantine restrictions, landslides,
lightning, earthquake, floods, washouts, civil disturbances, restraints by or
actions of any governmental body (including export or security restrictions on
information, material, personnel, equipment or otherwise), Year 2000 issues and
any other acts or events whatsoever, whether or not similar to the foregoing,
not within the control of the Party claiming excuse from performance, which by
the exercise of due diligence and commercially reasonable effort that Party
will not have been able to overcome or avoid. 
If the notifying Party cannot remedy the force majeure situation and
resume satisfactory performance within thirty (30) calendar days of the notice,
the other Party may at its option immediately terminate this Agreement.


 


10.4                           Each Party agrees to comply with all applicable country,
Federal, State, and Local laws, rules, regulations, and ordinances, including
those of


 


28

















 


any duly constituted governmental authority
having jurisdiction, and including without limitation, all rules and
regulations of the Occupational Health and Safety Administration, Environmental
Protection Agency, U.S. Department of Commerce, and U.S. Department of
Transportation, as applicable.  Each
Party will do all things necessary to: (a) obtain in a timely manner all
required licenses and approvals; and (b) comply with all applicable laws, rules
and regulations, including, but not limited to, the Regulations of the United
States Government relating to the export and reexport of technical data,
commodities, and products produced as a result of the use of such data.  Each Party hereto agrees that it will not
export or reexport, directly or indirectly, any technology, software and/or
commodities furnished under this Agreement, or the direct product thereof, to
any country, or the nationals thereof, specified in such laws, rules,
regulations, and ordinances referred to above as an unauthorized destination
without first obtaining, as applicable, U.S. Government approvals.


 


10.5                           The captions used in this Agreement are for convenience of
reference only and are not to be used in interpreting the obligations of the
Parties under this Agreement.


 


10.6                           Nothing contained herein, or done in pursuance of this
Agreement, will constitute the Parties as entering into a joint venture or
partnership or will constitute either Party hereto the agent for the other
Party for any purpose or in any sense whatsoever.


 


10.7                           Either Party may disapprove the assignment of any of its
former employees to perform work under this Agreement on its premises by the
other Party and such personnel will not be so assigned.  Each Party will take


 


29

















 


appropriate preventive steps, before the assignment of any of
its employees to perform work under this Agreement, that such Party reasonably
believes will ensure that its employees will not engage in inappropriate
conduct while on the other Party’s premises. 
Inappropriate conduct will include, but not be limited to: (a) being under
the influence of, or affected by, alcohol, illegal drugs or controlled
substances or engaging in their use, distribution or sale; (b) the possession
of a weapon of any sort; and (c) harassment, threats or violent behavior.


 


10.8                           Representatives and personnel of each Party, during the time
they are present on the premises of the other Party will be subject to all
rules and regulations prevailing on such premises.  Each Party will be responsible for the payment of all
compensation and expense of its respective representatives and personnel.  None of the representatives or personnel of
either Party will be considered, for any reason, to be an employee or agent of
the other.


 


10.9                           Each Party represents that it has, or will have in place,
established procedures and agreements with its Subsidiaries, employees or
others, including subcontractors and vendors, whose services the Party may
require, sufficient to enable the Party to comply with all the provisions of
this Agreement.


 


10.10                     Any written notice or communication required to be made or
given to either Party hereto, pursuant to this Agreement, will be effective
upon delivery and will be sent by facsimile, reputable air courier or other
means providing verification of delivery, and addressed as set forth below, or
to such other address as is designated by written notice given to the other
Party:


 


30

















 


10.10.1                         In the case of IBM:


 


      Director of Licensing


      International Business Machines Corporation


      North Castle Drive, MD NC119


      Armonk, New York, 10504-1785


      United States of America


      FAX: (914) 765-4380


 


with
a copy to:


 


      IP Counsel, East Fishkill


      International Business Machines Corporation


      2070 Route 52


      Hopewell Junction, New York, U.S.A., 12533-6531


      Fax: (845) 892-6363


 


10.10.2                        In the case of IBIS:


 


      Debra L. Nelson


      IBIS Technology Corporation


      32A Cherry Hill Drive


      Danvers, MA 01923


      Fax:  (978) 777-6570


 


10.11                     In no event will a Party be liable to the other Party for
incidental damages, lost profits, lost savings or any other such damages,
including consequential damages, regardless of whether the claim is for breach
of contract, breach of warranty, tort (including negligence), failure of a
remedy to accomplish its purpose or otherwise, even if such Party has been
advised of the possibility of such damages.


 


10.12                     No failure on the part of any Party to exercise, and no delay
in exercising, any right, power, or remedy hereunder will operate as a waiver


 


31

















 


thereof or as a waiver of any other right, power, or remedy
hereunder or to the performance of any Party; and no single or partial exercise
by a Party of any right, power, or remedy hereunder will preclude any other or
further exercise thereof or the exercise of any other right, power, or remedy.





10.13                     Except for obligations under Section 5, and 10.1, each
Party’s maximum cumulative liability to the other Party for any and all causes
of action arising hereunder or in any way relating thereto, regardless of form,
shall be limited to five hundred thousand dollars (US$500,000.00).


 


10.14                     For the period of the Term, each Party agrees not to directly
solicit or recruit employees of the other Party who: (a) are directly involved
in the Project; or (b) have been or are assigned to perform work under this
Agreement.  This does not restrict
general solicitations for employment or the right of any employee of one Party,
on that employee’s own initiative or in response to general solicitations, to
seek employment from the other Party.


 


10.15                     Neither party will assign this agreement to a third party,
except as follows.  Either Party may
assign its rights, privileges, and obligations under this Agreement in
connection with a sale or other transfer of such Party’s entire business
related to production, development and sale of SOI wafers.  For the avoidance of doubt: (a) a merger
with, (b) sale of more than fifty per cent of the stock to, or (c) acquisition
by, a third party is included in the scope of this Section 10.15.  Except as provided in the following Section
10.15.1, no other assignment of this Agreement, or assignment of rights or
delegation of obligations hereunder, is permitted.  Any attempted assignment or delegation in derogation of the
foregoing shall be void.


 


32

















 


10.15.1           IBM may, in its sole discretion, assign its right to receive
payments from IBIS under this Agreement to a third party.


 


10.16                     Subject to the provisions of Section 4, neither Party will
disclose the existence, terms and conditions, or subject matter of this
Agreement.


 


10.17                     This Agreement will not be binding upon the Parties until it
has been signed below by or on behalf of each Party, in which event it will be
effective as of the Effective Date. 
This Agreement constitutes the entire agreement between the Parties with
respect to the subject matter hereof and will supersede all contemporaneous and
previous communications, understandings and agreements, whether oral or
written, between the Parties relating to the subject matter hereof.  No amendment or modification of this
Agreement will be valid or binding upon the Parties unless made in writing and
signed on behalf of such Parties by their respective authorized representatives.  The requirement of a signed writing may only
be waived in a signed writing.


 


####


 


33

















 


    IN WITNESS WHEREOF, the Parties have caused this Agreement to
be executed by their duly authorized representatives, who by their signature
represent that they are so authorized, to be effective as of the Effective
Date.


 


 


	
  ACCEPTED AND AGREED TO:

  	
   

  	
  ACCEPTED AND AGREED TO:

  	
   

  
	
  IBIS TECHNOLOGY

  CORPORATION

  	
   

  	
      INTERNATIONAL
  BUSINESS

    MACHINES CORPORATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/Martin J. Reid

  	
   

  	
  By:

  	
  /s/Bijan Divari

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Martin J. Reid

  President

  IBIS Technology Corporation

  	
   

  	
  Bijan Davari

  Vice President, Technology

  and Emerging Products

  IBM Microelectronics Division

  2070 Route 52

  Hopewell Junction, NY 12533

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Date

  	
  November 14, 2002

  	
   

  	
  Date

  	
  November 22, 2002

  	
   

  
										



 


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