EXHIBIT 99.1
AGREEMENT ON DEVELOPMENT AND MANUFACTURING SUPPORT SERVICES
This Agreement is made and entered into this First day of December, 2001 (the
"Effective Date") by and between:
PHILIPS ELECTRONICS NORTH AMERICA CORPORATION, acting through its Philips Center
for Industrial Technology, having its place of business at 1000 W. Maude Ave.,
Sunnyvale, CA 94085-2810 (hereinafter referred to as "Philips CFT")
on the one hand,
and ZYGO Corporation, having its place of business at Laurel Brook Road,
Middlefield, CT 06455 (hereinafter referred to as "ZYGO")
on the other hand;
hereinafter collectively or individually referred to as "Parties" or "Party", as
the case may be;
WITNESSETH:
WHEREAS Philips CFT has expertise in the field of precision motion control; and
WHEREAS ZYGO is active in the field of optics and interferometers, and has a
requirement for incorporating accurate motion in their systems; and
WHEREAS Philips CFT is prepared to render certain Contract Services (as defined
hereinafter) to ZYGO at the terms and conditions set forth hereinafter; and
WHEREAS ZYGO in the framework of its activities from time to time desires
certain support and assistance from Philips CFT; and
WHEREAS the Parties wish to form a long-term relationship to accomplish this
objectives,
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
ARTICLE 1
DEFINITIONS
1.01.1 "Contract Services" shall mean any and all of the development and
manufacturing support services as mutually agreed to be provided by
Philips CFT to ZYGO, for the post-Effective Date activities of ZYGO as
defined hereinafter.
1.02 "Background IPRs" shall mean all IPRs (other than Contract IPRs) owned
or controlled by Philips CFT and/or its Associated Companies existing
prior to the Effective Date, or resulting from activities which are
independent from but concurrent with Contract Services, and under which
Philips CFT is free to grant licenses without the consent of or
accounting to any third party.
1.03 "Contract IPRs" shall mean all Intellectual Property Rights, arising as
a result of and in the course of Contract Services by Philips CFT and/or
its Associated Companies.
1.04 "Background Information" shall mean all Information (other than Contract
Information) owned or controlled by Philips CFT and/or its Associated
Companies, existing prior to the beginning of the Contract Services or
resulting from activities which are independent from but concurrent with
the Contract Services and under which Philips CFT is free to grant
licenses without the consent of or accounting to any third party.
1.05 "Contract Information" shall mean all Information arising as a result of
and in the course of Contract Services by Philips CFT and/or its
Associated Companies but excluding any Contract IPRs pertaining thereto.
1.06 "Associated Companies" shall mean any and all companies, firms and
persons now or hereafter controlled by Koninklijke Philips Electronics
N.V. (hereinafter referred to as "Philips"), control meaning directly or
indirectly holding more than fifty percent (50%) of the nominal value of
the issued share capital, more than fifty percent (50%) of the voting
power at general meetings or the power to appoint a majority of
directors or otherwise to direct the activities of such company, firm or
person but any such company, firm or person shall be deemed an
Associated Company only as long as such control exists.
1.07 "Effective Date" shall mean the date first set forth above.
1.08 "Intellectual Property Rights" ("IPRs") shall mean patents and patent
applications (including reissues, divisions, continuations and
extensions thereof), utility models, and registered and unregistered
designs including mask works, copyrights and any other form of
protection afforded by law to inventions, models, designs or technical
Information, and applications therefor.
1.09 "Information" shall mean drawings, specifications, samples, models,
processes, procedures, instructions, technology, applied engineering
data, reports, and all other technical or commercial information, data
and documents of any kind whatsoever, but excluding any IPRs to which
such Information relates.
1.10 "Cross License(s) shall mean any past, present, or future agreement(s)
entered into between Philips CFT and/or any of its Associated Companies
on the one hand, and any third party on the other hand, whereby Philips
CFT and said third party each grant to the other a license under their
respective IPRs or Information, and no specific field of use
restrictions are set forth therein regarding the use of either party's
IPRs or Information.
1.11 "Contract Service Changes" shall mean any and all deviations from the
agreed to Design Specifications, and/or other direct contract charges
such as travel. Design Specifications for a project are documented in
the Project Plan. Any changes to the Project Plan during the course of a
project are subject to review and changes in estimates for cost, timing,
and quality of the deliverables for the project.
ARTICLE 2
SCOPE
This Agreement contains the terms and conditions under which Philips CFT
is prepared to render Contract Services to ZYGO, and ZYGO may issue to
Philips CFT purchase orders for the rendering of Contract Services.
ARTICLE 3
CONTRACT SERVICES
3.01 During the term of this Agreement, Philips CFT agrees to render ZYGO any
and all Contract Services as defined in Article 1 to this Agreement. The
rendering of a specific Contract Service shall be subject to a specific
written order of and the prior written acceptance and confirmation
thereof by Philips CFT. Changes to the agreed-upon design specifications
will be treated as Contract Services Changes, and both ZYGO and Philips
will work in good faith to agree upon such changes in writing as soon as
possible after the changes are identified.
3.02 Philips CFT shall assign duly qualified personnel to the Contract
Services and shall in rendering the Contract Services use the same
degree of skill, expertise and diligence as it generally uses for
research and development services rendered to Philips' Associated
Companies.
3.03 Philips CFT shall use its best efforts to render the Contract Services
in an uninterrupted way, as agreed between the Parties for the
respective Contract Service. Philips CFT shall provide ZYGO with a copy
of the CFT Project Plan for each project initiated hereunder, and shall
provide ZYGO on a monthly basis with a cost analysis of actual costs and
expenses incurred versus the estimated amounts for that time period.
3.04 All Contract Services shall be executed in accordance with Philips CFT`s
Quality Management procedures. These procedures include the possibility
of including reviews and reporting in the Project Plans that are part of
the standard project control procedures for specific Contract Services.
3.05 ZYGO shall timely provide Philips CFT with all information Philips CFT
may reasonably require to render Contract Services to ZYGO.
3.06 During the term of the Agreement, ZYGO and Philips will confer at least
quarterly to estimate what Philips' resources will be required during
the next twelve month period. In the event that Philips CFT determines
that there will be an adjustment (either positive or negative) to the
originally specified timeline, it will promptly notify ZYGO thereof in
writing.
ARTICLE 4
CONSIDERATION
4.01 ZYGO shall pay Philips CFT for any Contract Services rendered hereunder
a remuneration which shall be either an agreed fixed price or an amount
based on the number of man hours actually spent by Philips CFT on the
requested Contract Service against an hourly rate which for the calendar
year 2002 shall be as specified in Exhibit I to this Agreement. For any
subsequent calendar year, the said hourly rate will be communicated to
ZYGO before September 30th of the present year for the following year.
4.02 The hourly rate for the rendering of the Contract Services hereunder
shall be inclusive of all costs of materials and administrative and
secretarial support, but exclusive of travel costs, VAT and
extraordinary costs of materials and services which Philips CFT uses
with respect to the rendering of Contract. Any such extraordinary costs
of materials and services shall be specified in the order confirmation
in as far as these are foreseeable. Philips shall not incur, on ZYGO's
behalf, any extraordinary expenses without ZYGO's prior written consent.
Nothing set forth herein withstanding, it is currently contemplated by
the parties that a mutually-agreed-upon number of Philips CFT employees
will be temporarily relocated for some or all of the duration of this
Agreement to facilities near ZYGO's operations in Connecticut, U.S.A.,
upon such terms and conditions as ZYGO and Philips CFT shall from time
to time in writing agree. All expenses relating to their temporary
relocation (including attendant travel, meal and lodging expenses) will
be paid by ZYGO.
4.03 The payments by ZYGO to Philips CFT for Contract Services in a certain
calendar year shall be paid by ZYGO on the basis of monthly invoices,
detailing the number of Contract Services rendered by Philips CFT to
ZYGO during such month, unless a different payment schedule has been
agreed upon in Philips CFT's written confirmation of ZYGO's order for
the respective Contract Service.
4.04 All payments to be made hereunder shall be made within thirty (30) days
after receipt of the invoice.
4.05 ZYGO shall, at any time during Philips CFT's normal business hours, and
upon five (5) business days prior written notice, be afforded access to
Philips CFT's premises for the purposes of auditing Philips CFT's books
and records that directly relate to Philips CFT's performance under this
Agreement, and to its billings to ZYGO with respect thereto; in
particular, ZYGO shall be afforded confidential access to Philips CFT's
records and documentation relating to the determination of the hourly
rate(s) at which ZYGO is billed for Contract Services performed pursuant
to this Agreement.
4.06 In the event ZYGO desires to terminate this Agreement, ZYGO will notify
Philips CFT formally, in writing. All contract specific cancellation and
close-out costs incurred subsequent to the receipt by Philips of the
formal termination letter will be calculated as follows: for Contract
Services, at the rate set forth in Exhibit 1, for materials costs, on a
cost only basis, and will not include any additional mark-ups of any
type.
ARTICLE 5
STEERING COMMITTEE
In a written notice to be delivered to the other Party, each Party shall
designate four (4) properly qualified persons to serve on the Steering
Committee for all Contract Services to be performed under this
Agreement, to serve as the
liaison between Philips CFT and ZYGO, and who will answer or have
answered any problems or questions which may occur in connection with
the rendering of the Contract Services hereunder. The Steering Committee
shall meet regularly (at least twice a year) to evaluate and discuss the
co-operation between Philips CFT and ZYGO hereunder.
For some projects, there will also need to be a project steering
committee. Such project specific issues will be handled in the project
plan for each project.
From time to time, either Party may designate substitute members of the
Steering Committee and any project steering committees; provided that at
no time shall either Party have more than four (4) representatives on
the Steering Committee.
ARTICLE 6
OWNERSHIP OF CONTRACT IPRS
6.01 In the event that during the term of this Agreement and as a result of
and in the course of Contract Services an invention is made solely and
exclusively by one or more employees of a Party, then title in and to
said invention, as well as in and to any Contract IPRs, issued or to be
issued thereon, shall be the exclusive property of that Party. The costs
and expenses for any application by or through a Party for Contract
IPR(s) and the maintaining thereof under this Article 6.01 shall be
borne by such Party. Philips and ZYGO shall consult each other prior to
the filing of any applications for Contract IPRs resulting from the
Contract Services and provide each other at their own expense with all
assistance the other Party may reasonably require for such filings. No
disclosure shall be made by either Party, which might prejudice any
legal rights regarding any filing for Contract IPRs under this Article
6.01, without the prior writing consent of the other party.
6.02 In the event that during the term of this Agreement and as a result of
and in the course of Contract Services an invention is made jointly by
one or more employees of ZYGO and one or more employees of Philips
and/or its Associated Companies and the contributions of both Parties'
employees are indivisible, then title in and to said invention as well
as in and to any Contract IPR issued or to be issued thereon shall be
jointly owned by the Parties, and each joint owner shall have an equal
undivided interest in and to such joint invention, as well as in and to
Contract IPRs thereon in all countries.
6.03 Each of the joint owners under Article 6.02 above shall have the
non-assignable right to make, have made, use, lease, sell or otherwise
dispose of any products or to use methods embodying any invention
claimed in any jointly owned Contract IPR without the consent of and
without accounting to the other owner and to grant non-exclusive
licenses under such jointly owned Contract IPRs without the consent of
and without accounting to the other owner, so long as the
owner granting such licenses fulfils its obligation, if any, to pay its
share of taxes or annuities on such Contract IPRs. Subject to the rights
and obligations each of the joint owners has under this Article 6,
Philips shall have the right to assign its interest in any such Contract
IPRs to any Associated Company, and each of the joint owners shall have
the right to assign its interest to an acquirer of the joint owner's
business to which the jointly-owned Contract IPR is relevant.
6.04 In case of joint inventions, each Party concerned shall promptly inform
the other Party whose employee is, or employees are, involved in such
joint invention. The Parties will thereafter confer in good faith to
agree on an appropriate course of action for filing Contract IPR
applications, including which Party is to be responsible for the
preparation, filing and prosecution of Contract IPR applications, and in
which countries of the world to file such Contract IPR applications.
Except as otherwise provided below, the filing of Contract IPR
applications on joint inventions shall be subject to mutual agreement.
All costs related to applications for a Contract IPR or to Contract IPRs
granted on such applications shall be shared equally between the
Parties, except as may be otherwise provided in this Article 6
hereafter.
The Parties agree that Philips shall file or have filed, prosecute and
maintain applications for a Contract IPR on joint inventions. The other
Party shall at its own cost furnish Philips with all documents or other
assistance that may be necessary for the filing and prosecution of each
such application. If, however, one Party is not interested in filing an
application for a Contract IPR on a joint invention in its name, the
other Party may file or have filed such application at its own expense
and shall be the sole owner of any resultant Contract IPR, subject to
the grant of a royalty-free, fully paid-up, non-exclusive, unrestricted
license to the Party who was not interested in filing an application for
a Contract IPR in its name and its Associated Companies, solely for
their own internal use, for the lifetime of the Contract IPR(s)
concerned, subject to any Cross Licenses and renewals thereof.
6.05 In the event that one of the Parties desires to file an application for
a Contract IPR on a joint invention in a country where the other Party
does not want to file in its own name, the first Party shall be entitled
to file or have filed in its own name applications for a Contract IPR in
such country, and shall own (with respect to said country) all IPRs
resulting therefrom.
All additional costs related or pursuant to such filing, including
prosecution costs, maintenance costs of the application for a Contract
IPR or the maintenance costs for a Contract IPR granted thereon shall be
paid by the first Party. Contract IPRs resulting from such applications
for a Contract IPR on a joint invention are subject to a royalty-free,
fully paid-up, non-exclusive, unrestricted license for the own use of
the Party who did not want to file in certain countries and its
Associated Companies for the lifetime of the Contract IPR(s) concerned,
subject to any Cross Licenses or renewals thereof.
In the event that one of the joint owners of an application for a
Contract IPR or a Contract IPR on a joint invention wants to stop paying
of its share of the maintenance fees or other costs in any country, the
other owner may take over the payment of such share. The Party that is
no longer paying its proportionate share for one or more countries shall
forthwith relinquish to the other Party which continues to make such
payments, its title and interest in such jointly owned Contract IPR for
the countries concerned, subject, however, to the retention of a fully
paid-up, non-exclusive, non-assignable license under the Contract IPR in
the countries concerned in favour of the relinquishing Party and its
Associated Companies for the own use of the relinquishing Party and its
Associated Companies. However, the relinquishing Party will no longer
have the right to grant licenses thereunder to third parties, but the
rights of third parties under already existing licenses and agreements
shall not be prejudiced. In respect to any other countries, its rights
will not be affected.
6.06 A joint owner shall have the right to bring an action for infringement
of a jointly owned Contract IPR only with the consent of the other
owner. This consent may only be withheld if such action would be
prejudicial to the other owner's material interests.
ARTICLE 7
CONTRACT IPR LICENSE
7.01 Philips shall provide the Contract Services to Zygo, and subject to all
fees having been paid by ZYGO hereunder, ZYGO shall be granted by
Philips a non-exclusive, non-transferable, irrevocable, world-wide
license under all Contract IPRs to make, have made by a mutually agreed
upon third party according to ZYGO's design, use and/or sell or
otherwise dispose of the metrology system in the optical measurement
devices specified by Zygo which incorporates any results of the Contract
Services (the "Zygo Product(s)"). Provided however, that in the event
that ZYGO ceases to exist, or becomes, in ZYGO's reasonable opinion
substantially or irreparably unable to utilize said license for the
specific purposes envisioned in this Agreement, then, at the written
request of Zygo, Philips agrees that it will negotiate in good faith an
Agreement with a "Replacement for Zygo" (which shall replace Zygo, but
shall be, in Philips CFT's reasonable opinion, substantially similar to
Zygo), which is mutually agreeable to Zygo's customer(s) and to Philips
CFT, whereby Philips CFT will provide the same Philips Contract Services
to the Replacement for Zygo as are being supplied hereunder, under terms
and conditions as substantially similar to those provided in this
Agreement and the License granted hereunder, as the then-existing
circumstances shall reasonably permit. Any license shall be for the life
of the Contract IPRs concerned and exclude any and all background IPRs.
Philips CFT and Zygo shall confer and agree in good faith, in writing,
as to precisely what (if any) Philips CFT information revealed to Zygo
in connection with the Contract Services must, of necessity, be supplied
to any of Zygo's customer(s) in order to enable said customer(s) to:
(a) conduct standard and necessary acceptance testing of the final Zygo
product(s); or (b) make reasonable use of the Zygo product(s) for the
ordinary purpose for which Zygo designed them.
7.02 The license granted under Article 7.01 to this Agreement shall be for
the life of the Contract IPRs concerned. This provision shall survive
the termination of this Agreement.
7.03 The Parties shall have each the unrestricted right to license third
parties under Philips and jointly developed Contract IPRs.
7.04 Expressly excluded from the license described under Article 7.01 to this
Agreement are any Background IPRs. However, Philips is prepared to grant
to ZYGO at ZYGO's request, subject to Cross Licenses and renewals
thereof, a non-exclusive license under the pertinent Background IPRs
under reasonable terms and conditions to be agreed upon, provided that
such license - which shall be limited to the field of the current (i.e.
on the Effective Date) activities of ZYGO - is required in order to
operate under the licenses granted by Philips under this Article 7 or
under Article 9 to this Agreement.
ARTICLE 8
OWNERSHIP OF INFORMATION
8.01 All Contract Information solely developed by one or more employee(s) of
ZYGO shall be solely owned by ZYGO. All Contract Information solely
developed by one or more employee(s) of Philips CFT and/or its
Associated Companies shall be solely owned by Philips CFT and/or its
Associated Companies.
8.02 In the event that during the term of this Agreement and as a result of
and in the course of Contract Services any Contract Information is
jointly developed by one or more employees of Philips CFT and/or its
Associated Companies and one or more employees of ZYGO, and the
contributions of both parties are indivisible, then both parties will
jointly own such jointly developed Contract Information and each joint
owner shall have an equal, undivided interest in and to such jointly
developed Contract Information.
8.03 Each joint owner shall have the non-assignable, non-exclusive and
unrestricted right, including the right to grant sublicenses to third
parties, to use jointly developed Contract Information without the
consent of and accounting to the other owner.
ARTICLE 9
CONTRACT INFORMATION LICENSE
9.01 Philips hereby grants to ZYGO a non-exclusive, non-transferable (other
than to a Replacement for ZYGO, as contemplated in Section 7.01 of this
Agreement), irrevocable, worldwide license to use Contract Information
to make, have made according to ZYGO's design, use and/or sell or
otherwise dispose of products incorporating the results of the Contract
Services. This provision shall survive the termination of this
Agreement.
9.02 Philips shall have the unrestricted right to license third parties to
use Contract Information.
9.03 Philips shall have the unrestricted right to use the Contract
Information in any field.
9.04 Philips is prepared to grant to ZYGO, subject to Cross Licenses and
renewals thereof, a non-exclusive license under the pertinent Background
Information under reasonable terms and conditions to be agreed upon,
provided that such license - which shall be limited to the field of the
current (i.e. on the Effective Date) activities of ZYGO - is required in
order to operate under the licenses granted by Philips under Article 7
to this Agreement or under this Article 9.
ARTICLE 10
WARRANTY
Philips CFT makes no representations or warranties, express or implied (such as,
by way of example but without limitation, regarding merchantability or fitness
for any particular purpose, nor that the Contract Services are error-free, nor
that the use or performance of the Contract Services will not infringe any U.S.
or foreign patent, copyright, trademark, or other intellectual property rights
of third parties); provided, however, that Philips warrants that it will not
knowingly infringe the patents of any third party in its performance of the
Contract Services. Philips accepts no liability with respect to any claim, such
as (without limitation) for damages, injury, loss or consequential, exemplary,
or punitive damages incurred by ZYGO or any third party on account of or arising
from the use or performance of the Contract Services.
Notwithstanding anything to the contrary in this Agreement, Philips CFT hereby
represents and warrants to Zygo that Philips CFT has the requisite power and
authority to enter into and perform under this Agreement; and that the execution
and delivery of this Agreement by Philips CFT and the performance by Philips CFT
of its obligations hereunder (including rendering the Contract Services) will
not (i) result in
the material breach of any agreement to which Philips CFT is a party or (ii)
result in the material violation of any statute, regulation, judgment, decree,
or order of any governmental entity having jurisdiction over Philips CFT.
ARTICLE 11
PROPRIETARY INFORMATION AND CONFIDENTIALITY
Except as otherwise provided for in this Agreement, any information (hereinafter
referred to as "Proprietary Information") disclosed by one Party to the other
Party in connection with Contract Services shall be presumed to be confidential
and proprietary to the disclosing Party. However, no Party shall be obliged to
keep in confidence that portion of any Proprietary Information which:
a) is or becomes available to the public or to the industry without the
fault or negligence of the recipient;
b) was already in possession of the recipient, provided that the recipient
is able to prove such prior possession;
c) is subsequently received from a third party without notice of
restriction on further disclosure;
d) is independently developed by the recipient;
e) is not written or marked with a legend indicating the same is
proprietary, private or confidential; or in case of an oral disclosure,
is not reproduced in writing with a notice to the recipient identifying
it as proprietary, private or confidential within thirty (30) days from
the date of the oral disclosure;
f) is ascertainable from a commercially available product; or
g) is required to be disclosed by competent government or regulatory
agencies or courts.
The obligations set forth in this Article 11 shall apply equally for parties
receiving any Proprietary Information under a have made arrangement between the
Parties and/or their Associated Companies with a subcontractor, provided that
the Parties shall consult each other in the event that the exchange of such
information might oppose the other Parties' major business interest. The
obligations set forth in this Article 11 shall expire five (5) years from the
expiration or termination of this Agreement.
ARTICLE 12
FORCE MAJEURE
In the event of an Act of God, war, civil insurrection, strike, terrorist
attack, or intervening governmental action causing delay in the ability of
either party to reasonably perform its duties hereunder (a "Force Majeure"), the
Party being delayed or damaged thereby shall inform the other Party as soon as
possible but in any event within seven (7) days after the start of such Force
Majeure, specifying the nature, as well as the estimated duration thereof. In
the event that this situation continues for more than sixty (60) days, or is
expected to last longer than sixty (60) days, then either Party is entitled to
terminate this Agreement by simple notice in writing and without either Party
being entitled to any claim for damages, other than for Contract Services
rendered. Otherwise, both Parties' rights and obligations will be suspended and
new time schedules and supply dates shall be agreed upon between the Parties.
ARTICLE 13
NOTICES
Any notice to be given under this Agreement shall be sent by fax and confirmed
by mail to the following addresses:
If to ZYGO: ZYGO: ZYGO Corporation
Laurel Brook Road
Middlefield, CT 06455
Telephone: (860) 347-8506
Fax: (860) 347-8372
Attention: John F. Filhaber
If to Philips CFT: Philips Electronics North America
Corporation Center for Industrial Technology
1000 W. Maude Ave.
Sunnyvale, CA 94085-2810
USA
Telephone: (408) 617-2447
Fax: (408) 617-7711
Attention: J. David Hammett
With copy to: General Counsel
(at the same location)
ARTICLE 14
DURATION AND TERMINATION
14.01 This Agreement shall commence on the Effective Date. This Agreement
shall be effective for an initial period of two (2) years, and shall be
renewed each year
for consecutive terms of one (1) year unless terminated by either Party
giving three (3) months' prior written notice. Timely before expiration
of this Agreement, Parties shall confer and evaluate their co-operation
hereunder. In case of termination of this Agreement, Articles 4, and 6
through 17 shall survive. Termination of this Agreement pursuant to this
Article shall not release Philips CFT from obligations towards ZYGO to
carry out and complete Contract Services accepted prior to the time of
such termination, and shall not release ZYGO from its obligation to make
any payments otherwise due under this Agreement.
14.02 In the event that this Agreement is terminated other than (a) as
provided in Article 14.01 hereof, or (b) for a material breach by
Philips that has not been cured within thirty (30) days after written
notice thereof to Philips by ZYGO, then ZYGO shall continue to make
payments to Philips pursuant to the then-existing version(s) of the
applicable Project Plan(s) for the following time periods, depending
upon how many full-time equivalents ("FTEs") Philips has dedicated to
performance of the Contract Services at the time of the termination:
if Philips has 10 or less FTEs dedicated to the Contract
Services, the payments shall continue for thirty (30) days; if
Philips has 11 to 30 FTEs, dedicated to the Contract Services,
the payments shall continue for sixty (60) days; and if Philips
has 31 to 50 FTEs, dedicated to the Contract Services, the
payments shall continue for ninety (90) days.
In the event that Philips has more than 50 FTEs dedicated to the
Contract Services at the time of termination, then payments shall
continue for such time as the parties may agree, but in no event for
less than ninety (90) days.
Nothing contained in this Article 14.02 is intended to, or is to be
construed as, in any way limiting whatever other remedies may be
otherwise available at law or in equity to either of the Parties in the
event of any termination of this Agreement.
ARTICLE 15
JURISDICTION AND GOVERNING LAW
This Agreement will be exclusively construed in accordance with and governed by
the internal laws of the State of New York, without application of the conflicts
of laws provisions thereof. Any disputes arising out of or in connection with
this Agreement which cannot be resolved amicably shall be exclusively settled by
a competent court sitting in New York County, New York, U.S.A.
ARTICLE 16
NON-SOLICITATION
16.01 It is understood that an important consideration for this Agreement is the
provision by Philips CFT of uniquely qualified personnel to perform the Contract
services. Said personnel have been recruited and trained by Philips at great
expense, and are indispensable to the continued ability of Philips CFT to
conduct its business. ZYGO hereby agrees that during the duration of this
Agreement, and for twelve (12) months thereafter, neither it nor any of its
affiliates shall directly or indirect recruit, or solicit the employment of, any
of the Philips CFT personnel who have performed any Contract Services under this
Agreement.
ARTICLE 17
MISCELLANEOUS
17.01 Neither Philips CFT's general conditions of sale, nor ZYGO's general
conditions of purchase, or any other general conditions, are applicable
to this Agreement.
17.02 This Agreement sets forth the entire agreement of the Parties. Any prior
statements, representations or agreements concerning the subject matter
of this Agreement are entirely void and of no effect.
17.03 No modification or changes shall be binding unless in writing signed by
the Parties. It shall become only effective when executed by both
Parties.
17.04 Caption headings are for convenience only and shall not be considered in
construing this Agreement.
17.05 If any provision of this Agreement is found by a court of competent
jurisdiction to be void or unenforceable, such finding shall not affect
any other provision hereof, which shall remain in force and effect.
17.06 Any failure to enforce any provision of this Agreement or breach of any
provision shall not be deemed a waiver of any right to enforce the
provisions of this Agreement for any other or subsequent breach of the
same or any other revision.
17.07 While the parties will work together to endeavor to avoid any
unnecessary taxes or imposts, ZYGO shall be solely liable for any taxes
imposed by any jurisdiction with regard to the performance of the
Contract Services, or the delivery or use of any product or result
thereof, other than the payment by Philips of any tax or other
governmental levy imposed solely upon its gross income or revenues.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the day
and year first written above.
PHILIPS ELECTRONICS
NORTH AMERICA CORPORATION ZYGO Corporation
Center for Industrial Technology
By: /s/ Jaap Stulp 10/3/02 By: /s/ J. Bruce Robinson OCT 18/02
------------------------------ --------------------------------
Jaap Stulp
Title: General Manager, Philips CFTNA Title: CEO, & President