Exhibit 10.10
ASI 209 LICENSE AGREEMENT
THIS AGREEMENT is dated August 2, 2004, between Axcelis Technologies, Inc.
a corporation organized and existing under the laws of the State of Delaware,
United States of America, and having its principal place of business at 108
Cherry Hill Drive, Beverly, Massachusetts, United States of America (hereinafter
called "Axcelis") and Aspect Systems, Incorporated, a corporation organized and
existing under the laws of Nevada and having its principal place of business at
375 E. Elliott Road, Suite 6, Chandler, Arizona (hereinafter called the
"Licensee").
WITNESSETH:
WHEREAS, the Licensee desires to acquire, and Axcelis is willing to grant,
a license to technology to manufacture, use and sell certain reactive ion etch
semiconductor manufacturing equipment for wafer sizes up to 200mm formerly
marketed by Matrix Integrated Systems, Inc. and Axcelis Technologies, Inc. under
Axcelis' applicable patents patent applications and know-how, as well as through
the use of Axcelis' unpatented technology;
WHEREAS, the parties have agreed to certain other transactions related to
the Licensee's assumption of the rights and obligations relating to Axcelis'
business pertaining to such reactive ion etch semiconductor manufacturing
equipment.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties agree as follows:
1. Definitions.
1.1. "Affiliate(s)" as used herein shall mean any corporation or
other legal entity (a) which owns, directly or indirectly, the majority of the
outstanding voting stock of a party hereto, (b) the majority of the outstanding
voting stock of which is owned by a party hereto, or (c) the majority of the
outstanding voting stock of which is owned, directly or indirectly, by any
corporation or other legal entity described in clauses (a) and (b) of this the
sentence.
1.2. "Licensed Technology/Names" as used herein shall mean all
rights in the intellectual property owned or controlled by Axcelis as of the
date of this Agreement, including any patents, patent applications, and/or
know-how relating in any way to, and used in conjunction with the Products.
1.3. "Net Sales" as used herein shall mean the gross amount billed
or invoiced by the Licensee or its affiliates for any Product (including parts
assigned to Licensee under Section 4.3 and acquired thereafter) or service labor
relating to the Products, less the following: (i) customary trade, quantity, or
cash discounts to the extent actually allowed and taken; (ii) amounts repaid or
credited by reason of rejection or return; (iii) to the extent separately stated
on purchase orders, invoices, or other documents of sale, any taxes or other
governmental charges levied on the production, sale, transportation, delivery,
or use of the Product, Part or service labor relating
to the Product that is paid by or on behalf of the Licensee or its affiliates;
and (iv) any freight, handling or shipping charges.
1.4. "Patents" as used herein shall mean the issued patents and
patent applications relating in any way to, and used in conjunction with the
Products, as well as patents which hereafter issue on such patent applications,
together with any extensions, registrations, confirmations, reissues, divisions,
continuations or continuations-in-part, re-examinations or renewals thereof.
1.5. "Products" as used herein shall mean certain reactive ion etch
semiconductor manufacturing equipment for wafer sizes up to 200mm formerly
marketed by Matrix Integrated Systems, Inc. and Axcelis Technologies, Inc. under
the trade names "Bobcat 209" or "Cheetah" (limited to such equipment that
includes at least one reactive ion etch chamber) including software, components
and parts therefor.
1.6. "Technical Information" shall mean confidential and secret
technical information, know-how, engineering drawings, data, processes, bills of
materials, detailed drawings and specifications, descriptions of assembly and
manufacturing procedures, computerized production control systems, software and
related source code, quality and inspection standards, drawings of jigs and
fixtures, sales literature and reports relating to the design, assembly and
manufacture of the Products.
2. License Grant. Subject to the terms and conditions in this Agreement,
Axcelis hereby grants to the Licensee and its Affiliates a worldwide, exclusive,
non-sub licensable and non-transferable (except as set forth in Section 9.2
below), irrevocable, license to utilize Licensed Technology to manufacture, use,
sell, maintain and service the Products. It will be expressly understood that
the Licensee is NOT granted any rights to use any trade name or names owned be
Axcelis Technologies, Inc. or Matrix Integrated Systems, Inc, including in
particular "Bobcat" or "Cheetah", to manufacture, use, sell, maintain and
service the Products.
3. Consideration for License Grant. In consideration of the license rights
granted under Section 2 above, the Licensee will make the following payments:
3.1. License Fee. The Licensee shall pay Axcelis a License Fee in
the amount of $750,000 (the "License Fee") payable quarterly, in accordance with
Section 3.3(b) below, at a rate of 18% of Licensee's Net Sales (as defined
above) of Products during each quarter beginning with the end of the fourth
quarter of 2004 and ending at the end of the fourth quarter 2011, or at such
time that the License Fee of $750,000 has been paid in full, whichever occurs
first.
3.2. Royalties. The Licensee shall pay to Axcelis an amount equal to
the following declining royalties rates on Net Sales (as defined above) of
Products sold by the Licensee during each quarter in the periods specified in
the chart below:
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From the date hereof until December 31, 2006 10%
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From January 1, 2006 until December 31, 2007 8%
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From January 1, 2007 until December 31, 2008 6%
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From January 1, 2008 until December 31, 2009 4%
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From January 1, 2009 until December 31, 2011 2%
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Such royalty payments shall be made in accordance with Section 3.3(b) below.
Upon the payment in full of the License Fees and royalties due under this
Section 3, the Licensee shall have a fully paid license to use the Licensed
Technology as described in this Agreement.
3.3. Time and Method of License Fee and Royalty Payments.
(a) All amounts to be paid to Axcelis under Sections 3.1 and 3.2
above shall, unless Axcelis shall have previously otherwise notified the
Licensee in writing, be payable in U.S. Dollars. Payments shall be made by
Licensee check to the order of Axcelis or its designee as last instructed by
Axcelis to the Licensee in writing.
(b) The portion of the License Fee based on Net Sales due under
Section 3.1 and the royalty payments to be paid to Axcelis pursuant to Section
3.2 above shall be paid on the first day of the third quarter following the
quarter for which such License Fee and royalty payments are incurred. For
example, the License Fee payment and royalties due for the quarter ending
December 31, 2004 shall be due and payable on July 1, 2005; and the License Fee
payment and royalties due for the quarter ending March 31, 2005 shall be due and
payable on October 1, 2005; and so on. Therefore, the last License Fee payment
shall be due when the License Fee has been paid in full in accordance with
Section 3.1 and the last royalty payment shall be due for the quarter ending
December 31, 2011 on July 1, 2012.
3.4. Record Keeping and Reporting.
(a) The Licensee shall keep complete and accurate sales records and
books relating to the Net Sales subject to royalties. Within forty-five (45)
days of a request, Axcelis, through its representatives and employees, shall
have the right to inspect and audit such sales records and books, not more than
once per calendar year, for the purpose of determining the sufficiency and
accuracy thereof and the correctness of any payments made hereunder.
(b) Each Net Sale shall be deemed made when shipped to the customer.
Accompanying each quarterly License Fee payment and each royalty payment due
under Section 3.2 hereof, the Licensee shall furnish to Axcelis a statement in
writing showing in reasonable detail the following information:
(i) Net Sales, including quantity, description and price of
all Products and related service labor invoiced to customers during the
preceding quarter;
(ii) Any off-setting commissions due to the Licensee from
Axcelis under Section 4.2(b) below;
(iii) A computation of the gross amount of the quarterly
royalty payment due Axcelis;
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(iv) Taxes withheld and remitted to governmental authorities
(if any) with respect to each such payment; and
(v) A computation of the net amount to be paid to Axcelis.
3.5. Tax Withholding. The Licensee shall be entitled to withhold any
taxes required by applicable law to be withheld from payments made to Axcelis
hereunder and shall promptly remit such taxes to the taxing authority on behalf
of Axcelis. The Licensee shall promptly furnish to Axcelis a tax withholding
receipt acknowledging the payment of any such withholding tax when such receipt
is received by the Licensee from the taxing authority.
4. Other Provisions Relating to the Assumption of the Product Line.
4.1. Assignment of Service Contracts and Warranty Clauses;
Assumption of Support Obligation. Effective September 30, 2004, Axcelis hereby
assigns to the Licensee all of Axcelis' right, title and interest in, and the
Licensee hereby assumes all of Axcelis' obligations under:
(a) the warranty obligations due to owners of the Products; and
(b) the currently effective service contracts covering Products; and
(c) all future warranty and service contracts covering Products; .
4.2. Transition of Operations; Sale and Support Obligations of
Licensee.
(a) Not later than September 30, 2004, the Licensee shall assume all
responsibility to respond to customer parts, warranty and non-warranty service,
new and used systems, orders and requests from customers including, but not
limited to, all installed products listed in Schedule 3. The parties shall
mutually agree to the exact date of such assumption, and until such date (which
shall not later than September 30, 2004) Axcelis shall respond to such orders
and requests.
(b) Beginning not later than September 30, 2004 and continuing
during the term of this Agreement, the Licensee shall maintain, at a minimum,
(1) a selling organization and facilities as may be necessary and adequate for
the solicitation of orders for Products sold to customers in the following
countries and (2) a service organization and facilities as may be necessary and
adequate for the support of the Products installed in the following countries:
(i) Japan;
(ii) China;
(iii) Taiwan;
(iv) Singapore;
(v) Malaysia;
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(vi) Thailand;
(vii) Korea;
(viii) Indonesia;
(ix) India;
(x) Australia;
(xi) Germany;
(xii) France;
(xiii) The Netherlands;
(xiv) Italy
(xv) Austria
(xvi) United Kingdom;
(xvii) Spain;
(xviii) Israel;
(xix) Canada; and
(xx) United States of America.
4.3. Cross Referrals.
(a) Referrals Relating to the Products. Axcelis will refer to the
Licensee all customers inquiring as to Product service and sale inquiries.
(b) Referrals Relating to Other Tools; Commissions Due. The Licensee
will refer to Axcelis all customers inquiring with respect to service and sale
inquiries relating to other products known by the Licensee to be manufactured
and sold by Axcelis ("Other Reactive Ion etch Tools"). Axcelis will agree to pay
to the Licensee a 5% commission on the Net Sales of product systems (not parts)
arising from a referral by the Licensee and for which the Licensee provided
substantial information, assistance and/or cooperation in obtaining the sale.
Such commissions may be offset against royalties due from the Licensee to the
Company under Section 3.2. Axcelis shall provide notice to the Licensee of all
Net Sales of Other Tools giving rise to commission payments hereunder in each
calendar quarter, such notice to be provided not later than 30 days after the
end of such quarter. If not off set against royalty payments due to Axcelis
under Section 3.2, such commission payments shall be made to the Licensee on the
same terms and conditions as the quarterly royalty payments due under Sections
3.2 and 3.3. Licensee agrees that during the term of this Agreement, Licensee
will not support or service any systems manufactured by Axcelis or its
predecessor(s) other than the licensed Products.
4.4. Parts Inventory.
(a) Axcelis shall offer to sell to the Licensee, Axcelis' inventory
of parts solely relating to the Products identified by Axcelis for shipment to
the Licensee (the "Inventory"). Axcelis agrees to use reasonable commercial
efforts to include in the Inventory the parts listed on Schedule 1, but Axcelis
makes no representations or warranties as to the completeness of the Inventory,
the accuracy of such list, or the availability of the inventory at the time of
purchase. Licensee accepts such Inventory "as-is" and Axcelis makes no
representation or warranty as to the performance or quality of the parts.
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(b) Axcelis will segregate the Inventory from Axcelis' other parts
inventories. The Licensee shall be responsible for the packaging and shipping of
the Inventory and the related expense (including associated tax or duty) of
relocating the Inventory to premises managed by the Licensee.
4.5. Transfer of Initial Product Axcelis shall transfer to the
Licensee title to one (1) reactive ion etch 209 Product intended for resale by
Licensee to Hewlett Packard's Singapore microelectronics fabrication facility.
Axcelis shall manufacture such initial product available for packaging and
shipping by the Licensee at Axcelis' Rockville Maryland facility. Licensee shall
pay for the expense of relocating these tools and equipment. The purchase price
for such initial product shall equal 125% of Axcelis' cost. Licensee agrees that
that such initial product shall be resold by Licensee to Hewlett Packard's
Singapore microelectronics fabrication facility unless such sale cannot be
completed.
4.6. Disclosure of Technical Information; Product Documentation.
During the term of this Agreement, Axcelis shall fully disclose to the Licensee
any Technical Information included in the Licensed Technology. Axcelis will
provide to the Licensee copies of all Product-related documentation it currently
has within its possession, including, but not limited to training, software
installation, engineering, and service related documentation. On a reasonable
commercial efforts basis, Axcelis will also make historical, non-technical
information relating to Products sales or performance available to the Licensee.
Licensee accepts such documentation "as-is" and Axcelis makes no representation
or warranty as to the accuracy or completeness of the documentation.
4.7. Purchase and Sale of Common Parts. To the extent available in
Axcelis' inventory of spare parts and consumables used for reactive ion etch
systems (in light of Axcelis' forecasts for usage of such spare parts and
consumables), Axcelis will sell to Licensee, from time to time, on the
submission of a purchase order, those spare parts and consumables which are also
used in the Products licensed hereunder, during the period ending December 31,
2011. The purchase price for such spare parts and consumables shall equal 125%
of Axcelis' cost of the purchased spare parts and/or consumables. Such sales
shall otherwise be made on Axcelis' standard customer terms for non-warranty
parts sales. Licensee agrees that such common parts and consumables shall be
used only by Licensee on licensed Products, and may not be resold by Licensee
except to the extent Licensee knows such parts are being used on licensed
Products.
4.8. Sale of Subassemblies. From time to time, Axcelis may agree to
sell to Licensee subassemblies of products other than the licensed Products
which subassemblies may be combined with licensed Products and resold by the
Licensee to a customer. Any such sale shall be at not less than 125% of Axcelis'
current cost for such subassemblies, due 30 days after shipment and otherwise on
Axcelis' standard customer terms and conditions.
5. Representations and Warranties of the Licensee.
5.1. Legal Right and Authority. The Licensee represents and warrants
to Axcelis that it has the legal right and power to enter into this Agreement,
and the authority to fully
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perform its obligations hereunder, and that it has not made nor will it make any
commitments to others in conflict with or in derogation of such rights or this
Agreement. Except as otherwise disclosed, the Licensee fully represents to the
other that it is not aware of any legal obstacles which could prevent it from
carrying out the provisions of this Agreement.
5.2. Product Support. Licensee covenants to make labor and part
support available to all owners of the Products (at prices that are consistent
with the recent history for these products for post-warranty parts and service)
for a period of not less than 7 years after the date of this Agreement.
5.3. Non-Solicitation of Axcelis Employees. The Licensee agrees not
to hire, seek to hire or solicit any of the employees of Axcelis, except for
certain employees specified on Schedule 2, whose employment with Axcelis will
terminate on the dates set forth on Schedule 2. In no event shall any
solicitation or recruitment by the Licensee interfere with the performance of
the obligations of such employees to Axcelis prior to termination of employment.
5.4. Responsibility for Warranty Obligations. The Licensee shall
have full responsibility for all warranty obligations incurred in connection
with the Products manufactured by it hereunder.
5.5. Indemnification; Limitation of Liability. The Licensee shall
indemnify and save Axcelis harmless from and against any and all loss, cost,
claim, liability, obligation and damage arising from (a) any negligence,
representation, promise, agreement or warranty by the Licensee or its agents,
employees, third party distributors, dealers, representatives, subcontractors,
or suppliers relating to Products manufactured by the Licensee or (b) any
Product defect or deficiency in production, manufacture, use, design, operation
or otherwise of the Products manufactured by the Licensee. The Licensee will not
be liable to Axcelis for any indirect, incidental, special or consequential
damages, including lost profits, regardless of whether the claim is based on
contract, tort, warranty, or otherwise, even if the Licensee has been advised of
the possibility of such damages.
6. Representations and Warranties of Axcelis.
6.1. Legal Right and Authority. Axcelis represents and warrants to
the Licensee that it has the legal right and power to enter into this Agreement,
and the authority to extend the rights and licenses granted to the Licensee in
this Agreement, and to fully perform its obligations hereunder, and that it has
not made nor will it make any commitments to others in conflict with or in
derogation of such rights or this Agreement. Except as otherwise disclosed,
Axcelis fully represents to the other that it is not aware of any legal
obstacles which could prevent it from carrying out the provisions of this
Agreement.
6.2. Installed Base. Axcelis represents that to the best of its
knowledge, Axcelis has provided the Licensee with a complete and accurate list
of the owner and location of all Products operating in the field.
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6.3. Documentation of Warranty and Service Obligations. On or prior
to the date hereof, Axcelis has delivered to the Licensee true and correct
copies of all documents relating to the warranty obligations and service
contract obligations assumed by the Licensee under Section 4 above.
6.4. No Known Infringement. Axcelis represents that to the best of
its knowledge, the Licensed Technology is not the subject of any liens,
encumbrances, interference proceedings, opposition proceedings, pending
litigation, or other disputes. Other than warranties set forth herein, Axcelis
makes no warranty, express or implied, including, without limitation, any
implied warranty of merchantability or any implied warranty of fitness for a
particular purpose with respect to any patent, trademark, software, trade
secret, tangible research property, information or data licensed or otherwise
provided to the Licensee hereunder and hereby disclaims the same.
6.5. Indemnification. Axcelis shall indemnify and save the Licensee
harmless from and against any and all loss, cost, claim, liability, obligation
and damage arising from (a) any negligence, representation, promise, agreement
or warranty by Axcelis or its agents, employees, third party distributors,
dealers, representatives, subcontractors, or suppliers relating to Products
manufactured by Axcelis (to the extent not assumed by the Licensee hereunder) or
(b) any Product defect or deficiency in production, manufacture, use, design,
operation or otherwise of the Products manufactured by Axcelis to the extent not
assumed by the Licensee hereunder). Axcelis will not be liable to the Licensee
for any indirect, incidental, special or consequential damages, including lost
profits, regardless of whether the claim is based on contract, tort, warranty,
or otherwise, even if Axcelis has been advised of the possibility of such
damages.
7. Infringement Actions.
7.1. Enforcement of Patent Rights; Defense of Infringement Actions.
The Licensee and Axcelis shall each promptly notify the other in writing of any
alleged or threatened infringement of any Patents licensed hereunder or if
either party, or any of their respective Affiliates, shall be individually named
as a defendant in a legal proceeding by a third party for infringement of a
third party patent due to the manufacture, use or sale of a Product or attempts
to invalidate the Patents.
7.2. First Right to Respond. The Licensee shall have the first right
to assert any alleged or threatened infringement or defend against a challenge
to validity of Patents licensed hereunder, and shall further have the first
right to respond or defend against a third party assertion of a third party
patent to the extent such action relates to the Products. In the event the
Licensee elects to so assert, defend, or respond, Axcelis will cooperate with
the Licensee's legal counsel, join in such suits as may be brought by the
Licensee to enforce the licensed Patents, and be available at the Licensee's
reasonable request to be an expert witness or otherwise to assist in such
proceedings.
7.3. Sharing of Litigation and Settlement Expenses. In the event
that the Licensee elects to respond to or defense against such challenge or
infringement action, the costs
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incurred (i) in responding to or defending against a challenge to or
infringement of the Patents or a charge that the manufacture, use or sale of
Products infringe upon patents of third parties, (ii) in settling any such
actions, which may not be done without the prior written consent of Axcelis,
which consent shall not be unreasonably withheld or delayed, and (iii) as
damages paid as a result of such actions shall be borne by the Licensee. The
Licensee may not dispose of such action without the written consent of Axcelis
(unless Axcelis shall have no further responsibility for such litigation upon
such disposition).
7.4. Sharing in Benefits of Infringement Action. All moneys or other
benefits derived from such infringement action shall first be applied to
reimburse the Licensee for the litigation and settlement expenses incurred by
the Licensee and 10% of any remaining benefits shall be paid over to Axcelis
with the residue retained by the Licensee.
7.5. Second Right to Respond. If the Licensee does not exercise its
right to respond to or defend against challenges or infringements of the Patents
as provided in Section 7.2 above within sixty (60) days of becoming aware of or
being notified of such challenges or infringements, then Axcelis shall have the
option to do so at its sole cost; provided that in such case all amounts so
recovered from such third party shall be retained by Axcelis and Axcelis shall
have no further obligations to the Licensee with respect to the response or
defense thereof.
7.6. No Liability for Unenforceability or Infringement. Axcelis
shall have no liability to the Licensee in the event that Axcelis or the
Licensee is unable to enforce a Patent against any alleged infringer, due to the
invalidity of such Patent or otherwise. Except in the case of a breach of
Axcelis' representation in Section 6.4 above, Axcelis shall have no liability to
the Licensee in connection with any loss arising from a finding that the
Licensee infringed a third party patent.
7.7. Cooperation in Litigation. The parties shall keep each other
fully informed as to the progress of any infringement action under this Section
brought in the names of either or both parties, and each shall provide the other
with all data in its possession that may be helpful in the prosecution of such
action.
8. Term and Termination.
8.1. Term. The term of this Agreement, unless sooner terminated as
provided for in Section 8.2, shall commence upon the date hereof of this
Agreement and shall continue until the License Fee under Section 3.1 and the
royalties due under Section 3.2 are fully paid, provided the license granted in
Section 2 hereof shall continue in effect until the last to expire of the
Patents included in the Licensed Technology.
8.2. Termination on Default or Insolvency. Axcelis may elect to
terminate the licenses granted to the Licensee hereunder if the Licensee:
(a) shall fail to observe the terms, covenants and conditions hereof
and shall fail to cure or substantially cure such default within ninety (90)
days after written notice thereof;
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(b) becomes bankrupt, insolvent, or dissolves provided in the case
of an involuntary bankruptcy the involved party shall have 60 days to dismiss
such action;
(c) shall sublicense, transfer or assign or attempt to sublicense,
transfer or assign this Agreement without the prior written approval of Axcelis
as required by Section 9.2 below; or
(d) shall fail to exercise reasonable diligence in pursuing the
promotion of the sale of the Products and/or the support of the Products,
including but not limited to fulfillment of the Licensee's obligations under
Section 4.2(b) above.
If Axcelis so elects, it shall give the Licensee written notice of
termination, specifying the cause and the effects thereof in accordance with
this Section 8.2. In the event that Axcelis elects to terminate its license
hereunder, the Licensee shall have the right to refer the matter to arbitration
in accordance with Section 9.7, in which case there shall be no effect on this
agreement until a decision has been issued from arbitration and the cure period
described in Section 9.7, if applicable, shall have expired. Upon any final
termination of this license, the Licensee shall immediately return any and all
hard copies of Technical Information to Axcelis.
9. Miscellaneous.
9.1. Confidentiality.
(a) General. Except as may be mutually agreed by the parties and as
provided in Section 9.1(b), all confidential or proprietary information
disclosed by one party to the other in connection with the transactions proposed
in this Agreement and the negotiations between such parties shall be subject to
the terms of a Confidential Disclosure Agreement dated as of August 13, 2003
between Licensee and Axcelis.
(b) Technical Information. The Technical Information to be furnished
by Axcelis hereunder is confidential and secret, and title to all such Technical
Information shall remain vested in Axcelis, subject to the exclusive license
granted hereunder. Each of the parties shall preserve and protect the
confidential nature of the Technical Information and shall not disclose the
Technical Information to any third parties without the written consent of the
other party except suppliers, subcontractors and customers to the extent
necessary to enable the party to manufacture, use and sell the Products in
accordance with the license granted hereunder. Any and all drawings, blueprints,
specifications and other written materials produced by or at the request or
direction of a party disclosing Technical Information to any third party shall
be marked with the following language:
"The technical information disclosed herein is the confidential
property of Aspect Systems, Incorporated, as licensee of Axcelis
Technologies, Inc. and is issued in confidence for engineering information
only. It may not be reproduced or used in any way without an express
written license from Aspect Systems Incorporated."
(c) Liability for Disclosure. The disclosures permitted under
Section 9.1(c) above shall not relieve either party of its obligation to
maintain the confidentiality of the
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Technical Information, and each of the parties shall be liable for any
unauthorized disclosure by it or by those to whom such party has made any
disclosure.
9.2. Assignment. Until the license granted hereunder is fully-paid,
the Licensee shall not be entitled to sublicense, transfer or otherwise assign
(including any assignment by merger or other operation of law) its rights or
delegate its obligations under this Agreement without the prior written approval
of Axcelis, except that (1) the Licensee may assign its rights and obligations
hereunder to an Affiliate of the Licensee existing on the date hereof, provided
advance notice thereof is provided to Axcelis and (2) the Licensee shall have
the right to subcontract the manufacture of parts and components for the
Products from time to time.
9.3. Entire Agreement. The terms and provisions of this Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof. This Agreement shall supersede all previous communications,
either oral or written, between the parties with respect to the subject matter
hereof, including but not limited to the letter of intent dated September 25,
2003, but excluding the Confidential Disclosure Agreement dated August 13, 2003,
except as provided above. No agreement or understanding varying or extending
this Agreement shall be binding upon either party unless in writing signed by a
duly authorized officer or representative thereof.
9.4. Non-Waiver of Rights and Disclaimer of Liability. Failure of
either party to enforce any of the provisions of this Agreement or any rights
with respect thereto or failure to exercise any election provided for herein
(except as expressly otherwise provided herein) shall in no way be considered a
waiver of such provisions, rights or elections or in any way to affect the
validity of this Agreement. The failure of either party to enforce any of said
provisions, rights or elections shall not preclude or prejudice such party from
later enforcing or exercising the same or any other provisions, rights, or
elections which it may have under this Agreement.
9.5. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, all of which
shall constitute one and the same agreement.
9.6. Disclaimer of Agency. This Agreement shall not constitute
either party the legal agent of the other, nor shall either party have the right
or authority to assume, create, or incur any liability or any obligation of any
kind, express or implied, against or on behalf of the other.
9.7. Arbitration. Any and all disputes or differences between the
parties pertaining to or arising out of this Agreement, or the breach thereof,
shall be settled by arbitration to be held in Boston, Massachusetts in
accordance with the rules of the American Arbitration Association in effect upon
the date that either party serves notice upon the other party of a demand for
arbitration. The dispute shall be arbitrated by one arbitrator selected by
agreement of both parties; provided, however, in the event the parties cannot
agree upon an arbitrator, the arbitrator shall be appointed by the American
Arbitration Association. The award rendered by the arbitrator shall be final,
binding upon the parties, and enforceable by any court of competent
jurisdiction.
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If a dispute arises as to whether or not Axcelis is entitled to terminate
this Agreement under Section 8.2 and arbitration is initiated to resolve such
dispute which determines that Axcelis does have the right to terminate this
Agreement, the Licensee shall have ninety (90) days from the date of the
arbitration decision to rectify the events causing such termination right
consistent with the arbitration decision and remove the grounds for termination.
9.8. Notices. All notices for all purposes under this Agreement
shall be deemed to have been sufficiently addressed when, if given to Axcelis,
addressed to:
Chief Executive Officer
Axcelis Technologies, Inc.
108 Cherry Hill Drive
Beverly, Massachusetts 01915 U.S.A.
or when, if given to the Licensee, addressed to:
President
Aspect Systems, Incorporated
375 E. Elliot Road, Suite 6
Chandler, AZ 85225
and if sent by registered mail with return receipt requested. The date of
posting shall be deemed to be the date on which such notice or request has been
given or served. The parties may give written notice of change of address by
mail or by facsimile and, after notice of such change has been received, any
notice or request shall thereafter be given to such party as above provided at
such changed address.
9.9. Force Majeure. Performance by the parties under this Agreement
shall be subject to, and no party shall have liability for delays, failure to
deliver, or cancellation due to events that cannot be anticipated at the time of
the signing of this Agreement, which events neither the occurrence nor aftermath
of which are avoidable or surmountable with reasonable effort by the affected
party. Such events shall include, but not be limited to, war, insurrection,
rebellion, fire, theft, accident, flood, earthquake, Act of God, strike,
slow-down, labor dispute, transportation delay, embargo, and governmental act,
regulation or request. The affected party shall promptly notify the other party
if performance hereunder is delayed due to events covered by this paragraph. The
parties agree to open, frank and serious discussions in connection with such
delay. Time for performance under this Agreement shall be extended for a period
equal to the period of delay caused by such events. In the event such period of
delay extends beyond one hundred twenty (120) days, either party may terminate
this Agreement upon giving notice to the other party as provided herein
9.10. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts,
United States of America. If any provisions of this Agreement shall be invalid
under the laws of a particular state, country or jurisdiction where used, then
it is agreed that the whole agreement shall not be invalid but it shall be
construed as if not containing such invalid provision and the rights and
obligations of the parties shall be construed and enforced accordingly.
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IN WITNESS THEREOF, each of the parties has duly executed this Agreement
as of the date hereof.
AXCELIS TECHNOLOGIES, INC.
By: /s/ Michael J. Luttati
--------------------------------------------
Michael J. Luttati,
Executive Vice President and Chief Operating
Officer
ASPECT SYSTEMS, INCORPORATED
By: /s/ Dennis Key
--------------------------------------------
Dennis Key
President and Chief Executive Officer
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