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EXHIBIT 99.1
PHOTOMASK SUPPLY
AND STRATEGIC ALLIANCE AGREEMENT
BY AND AMONG
ALIGN-RITE INTERNATIONAL, INC.,
ALIGN-RITE, INC.
AND
▇▇▇▇▇▇ CORPORATION
DATED JULY 2, 1999
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TABLE OF CONTENTS
TABLE OF CONTENTS
PAGE
ARTICLE 1 Definitions..................................................................1
ARTICLE 2 Supply of Products...........................................................3
ARTICLE 3 Product Quality, Delivery, Service and Pricing...............................4
ARTICLE 4 [*] Products.................................................................6
ARTICLE 5 Product Orders...............................................................7
ARTICLE 6 Manufacture..................................................................9
ARTICLE 7 Delivery and Payment.........................................................9
ARTICLE 8 Strategic Alliance, Consultation and Cooperation Arrangements................9
ARTICLE 9 Termination Rights And Obligations Upon Termination.........................10
ARTICLE 10 Warranties..................................................................11
ARTICLE 11 Dispute Resolution and Arbitration..........................................12
ARTICLE 12 Confidentiality.............................................................13
ARTICLE 13 General.....................................................................14
13.1 Independent Contractors............................................14
13.2 Amendments; Waivers................................................14
13.3 Schedules; Exhibits; Integration...................................14
13.4 Force Majeure......................................................14
13.5 Assignment.........................................................15
ARTICLE 14 Notices.....................................................................15
* Certain information in this exhibit has been omitted and filed separately
with the Commission. Redacted portions of the exhibit are indicated by an
asterisk within brackets ([*]), and a legend appears on the appropriate
pages. Confidential Treatment has been requested with respect to the omitted
portions.
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PHOTOMASK SUPPLY AND STRATEGIC ALLIANCE AGREEMENT
This Supply Agreement is entered into as of July 2, 1999, (the
"Effective Date") by and among Align-Rite International, Inc., a California
corporation ("Align-Rite"), and Align-Rite, Inc., a Florida corporation ("Sub"),
on the one hand, and ▇▇▇▇▇▇ Corporation, a Delaware corporation ("▇▇▇▇▇▇"), on
the other acting through its Semiconductor Business.
R E C I T A L S
WHEREAS, Sub has purchased the Photomask business unit of ▇▇▇▇▇▇
(the "Photomask Business Unit") on the date hereof pursuant to the terms of that
certain Asset Purchase Agreement, dated as of even date, by and among Align-Rite
and Sub, on the one hand, and ▇▇▇▇▇▇ on the other (the "Asset Purchase
Agreement").
WHEREAS, the parties hereto have agreed that Align-Rite will
manufacture and supply to ▇▇▇▇▇▇, and ▇▇▇▇▇▇ will purchase exclusively from
Align-Rite, 100% of ▇▇▇▇▇▇' Photomask requirements in accordance with the terms
of this Agreement for a period of 10 years from the Effective Date (the "Term").
WHEREAS, ▇▇▇▇▇▇ shall use its commercially reasonable efforts to
promote Align-Rite's Photomask products and services to (i) the merchant
customers of the Photomask Business Unit, (ii) ▇▇▇▇▇▇' joint venture partners,
(iii) the semiconductor foundry businesses utilized by ▇▇▇▇▇▇ which will or are
envisioned to require the purchase of Photomask (as defined below) products and
services, and (iv) other companies and foundries within the influence or under
the control of ▇▇▇▇▇▇, in each case in accordance with the terms of this
Agreement.
WHEREAS, Align-Rite shall strive to be the industry leader in
quality, delivery, service and price, and provide the benefit of such world
class operation to ▇▇▇▇▇▇.
NOW, THEREFORE, in consideration of the foregoing premises and
the mutual promises and covenants set forth below, the parties mutually agree as
follows:
A G R E E M E N T
ARTICLE 1
DEFINITIONS
In this Agreement, unless the context otherwise requires, the
following expressions shall have the following meanings:
"AFFILIATES" shall mean (a) any company owned or controlled to
the extent of at least fifty percent (50%) of its issued and voting capital by a
party to this Agreement and any other company so owned or controlled (directly
or indirectly) by any such company or the owner of any such company, or (b) any
partnership, joint venture or other entity directly or indirectly controlled by,
controlling, or under common control of, to the extent of fifty percent (50%) or
more of voting power (or otherwise having power to control its general
activities), a party to this Agreement, but in each case only for so long as
such ownership or control shall continue;
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"ALIGN-RITE" means Align-Rite International Inc., a California
corporation, and each of its subsidiaries from time to time;
"BUSINESS ASSETS" means those assets previously owned and used by
▇▇▇▇▇▇ to manufacture Photomasks which were purchased by Align-Rite pursuant to
the Asset Purchase Agreement, including equipment, materials, know-how, work in
progress, related inventory and goodwill used by and associated with the
Photomask business unit of ▇▇▇▇▇▇;
[*]
[*]
"FACILITY LEASE" means the lease of the Premises entered into
among Sub and ▇▇▇▇▇▇ on the date hereof;
"FORCE MAJEURE" means, in relation to any party, circumstances
beyond the reasonable control of that party including, without limitation, acts
of God, acts of any governmental or super-national authority, war or national
emergency, riots, civil commotion, fire, explosion, flood, epidemic, lock-outs
(whether or not by that party), strikes and other industrial disputes (in each
case, whether or not relating to that party's work force);
"MASK ORDER" means a written order from an authorized originator
employed by ▇▇▇▇▇▇ specifying the Product(s) required, applicable
Specification(s), amount of Product(s), date(s) required and delivery
instructions [*];
[*]
"PHOTOMASK BUSINESS UNIT" has the meaning set forth in the
recitals.
"PHOTOMASKS" means precision photographic quartz or glass plates
containing microscopic images of integrated circuits for use as master images to
transfer circuit patterns onto semiconductor wafers during the fabrication of
integrated circuits and other semiconductor products;
"PREMISES" means the real property located within the complex of
buildings known as the Semiconductor Sector located at ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇.▇.,
▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and known as Building 60 and a portion of Building 56
used in the Photomask Business
[*] Certain information in this exhibit has been omitted and filed separately
with the Commission. Redacted portions of the exhibit are indicated by an
asterisk within brackets ([*]), and a legend appears on the appropriate
pages. Confidential Treatment has been requested with respect to the
omitted portions.
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Unit, which are the subject of the Facility Lease entered into among Sub and
▇▇▇▇▇▇ on the date hereof;
"PRODUCT PERIOD" [*]
"PRODUCTS" means the Photomask products and services listed on
the Product and Services Pricing Schedule, as amended from time to time, or any
other Photomask Product or services purchased from Align-Rite by ▇▇▇▇▇▇;
"PRODUCT AND SERVICES PRICING SCHEDULE" means a schedule listing
the Product and related services, together with the relevant Specification
thereof and applicable price [*]
"QUARTER" means a continuous calendar period of three months, the
first such period ending on September 30, 1999;
"SPECIFICATION" means, in respect of any Product, the
specification agreed in writing between ▇▇▇▇▇▇ and Align-Rite from time to time.
[*]
"STANDARD DELIVERY" has the meaning specified in Section 5.5; and
"TERM" shall mean the ten-year term of this Agreement
ARTICLE 2
SUPPLY OF PRODUCTS
2.1 The parties hereby agree that, during the Term of the Agreement, ▇▇▇▇▇▇
shall satisfy 100% of its and its Affiliates' requirements for Photomasks, or
any other product with similar functional characteristics, solely through its
purchase of Products, [*} Products and [*] Products from Align-Rite; [*]
2.2 ▇▇▇▇▇▇ hereby confirms its intent to order and purchase
during the first three Product Periods, solely on its behalf or on behalf of its
Affiliates approximately [*] in aggregate of Products, [*] Products from
Align-Rite at the Product prices set forth on the Product and Services Pricing
Schedule, as such Product and Services Pricing Schedule is amended pursuant
hereto.
2.3 [*] but such
[*] Certain information in this exhibit has been omitted and filed separately
with the Commission. Redacted portions of the exhibit are indicated by an
asterisk within brackets ([*]), and a legend appears on the appropriate
pages. Confidential Treatment has been requested with respect to the
omitted portions.
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Photomask purchases shall not decrease the purchase requirements of ▇▇▇▇▇▇ from
Align-Rite hereunder or ▇▇▇▇▇▇' obligations pursuant to Article 8.
ARTICLE 3
PRODUCT QUALITY, DELIVERY, SERVICE AND PRICING
3.1 [*]
3.2 [*]
3.3 Pricing.
3.3.1 [*]
[*] Certain information in this exhibit has been omitted and filed separately
with the Commission. Redacted portions of the exhibit are indicated by an
asterisk within brackets ([*]), and a legend appears on the appropriate
pages. Confidential Treatment has been requested with respect to the
omitted portions.
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[*]
3.3.2 Beginning with the commencement of the second Product
Period and for each subsequent Product Period thereafter during
the Term of this Agreement, Align-Rite shall provide ▇▇▇▇▇▇ with
the following [*]
[*}
[*]
3.3.3 [*]
3.3.4 [*]
3.4 [*]
[*] Certain information in this exhibit has been omitted and filed separately
with the Commission. Redacted portions of the exhibit are indicated by an
asterisk within brackets ([*]), and a legend appears on the appropriate
pages. Confidential Treatment has been requested with respect to the
omitted portions.
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3.5 [*]
3.6 [*]
ARTICLE 4
[*] PRODUCTS
4.1 In the event ▇▇▇▇▇▇ anticipates a requirement for a [*]
Product, it shall (i) notify Align-Rite as soon as practicable, (ii) provide
Align-Rite with the Specification for such Derivative Product together with an
estimate of its anticipated annual demand for such [*] Product, and (iii)
request Align-Rite to provide a quotation for the manufacture and supply of such
[*] Product.
4.2 [*]
[*] Certain information in this exhibit has been omitted and filed separately
with the Commission. Redacted portions of the exhibit are indicated by an
asterisk within brackets ([*]), and a legend appears on the appropriate
pages. Confidential Treatment has been requested with respect to the
omitted portions.
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4.3 Upon acceptance of the quotation by ▇▇▇▇▇▇ and the placing of
the first order for any [*] Product, such [*] Product and the unit price shall
be added to the Product and Services Pricing Schedule and the [*] Product shall
be treated as a "Product" for the purposes of this Agreement.
4.4 In the event ▇▇▇▇▇▇ anticipates a requirement for a New
Product, it shall (i) notify Align-Rite as soon as practicable, (ii) provide
Align-Rite with the specification for the New Product together with an estimate
of its anticipated annual demand for such New Product, and (iii) request
Align-Rite provide a quotation for the manufacture and supply of such New
Product.
4.5 Upon acceptance of the quotation by ▇▇▇▇▇▇ and the placing of
the first order for any New Product, such New Product and the unit price shall
be added to the Product and Services Pricing Schedule and the New Product shall
be treated as a "Product" for the purposes of this Agreement.
4.6 [*]
4.7 [*]
4.8 [*]
ARTICLE 5
PRODUCT ORDERS
5.1 ▇▇▇▇▇▇ shall, no later than five (5) days before the
beginning of each month, give Align-Rite written notice of its anticipated
requirements for Products for the forthcoming month.
5.2 In order to facilitate the purchase of Products, all
applicable Business Units of ▇▇▇▇▇▇ which require Photomask Products shall issue
to Align-Rite upon the execution of this Agreement, a blanket purchase order
regarding its anticipated Photomask requirements for the first Product Period.
At the end of the first Product Period new blanket purchase orders will be
issued for each succeeding Product Period.
5.3 All applicable Photomask Business Units of ▇▇▇▇▇▇ which
require Photomask Products shall issue Mask Orders for Products in writing.
5.4 [*]
[*] Certain information in this exhibit has been omitted and filed separately
with the Commission. Redacted portions of the exhibit are indicated by an
asterisk within brackets ([*]), and a legend appears on the appropriate
pages. Confidential Treatment has been requested with respect to the
omitted portions.
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[*]
5.5 [*]
5.6 [*]
5.7 [*]
5.8 Cancellations and Schedule Changes.
5.8.1 ▇▇▇▇▇▇ may cancel without charge any purchase order and/or
Mask Order or portion thereof for a Product at any time prior to
the date on which Align-Rite has started manufacturing such
Product.
5.8.2 In the event ▇▇▇▇▇▇ cancels a purchase order and/or Mask
Order for a Product after Align-Rite has purchased custom raw
materials for such Product, but before Align-Rite has started
manufacturing such Product, ▇▇▇▇▇▇ shall reimburse Align-Rite for
the cost of such custom raw materials.
[*] Certain information in this exhibit has been omitted and filed separately
with the Commission. Redacted portions of the exhibit are indicated by an
asterisk within brackets ([*]), and a legend appears on the appropriate
pages. Confidential Treatment has been requested with respect to the
omitted portions.
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5.8.3 In the event ▇▇▇▇▇▇ cancels a purchase order and/or Mask
Order for a Product after Align-Rite has started manufacturing
the Product, ▇▇▇▇▇▇ shall pay one hundred percent (100%) of the
price of such Product. Payment of amounts due under this Section
shall be made within thirty (30) days of the date of each
invoice.
ARTICLE 6
MANUFACTURE
6.1 Each Product sold by Align-Rite to ▇▇▇▇▇▇ pursuant to this
Agreement shall conform in all respects to its Specification as set forth on the
applicable purchase order and/or Mask Order.
6.2 Align-Rite and ▇▇▇▇▇▇ shall consult with one another annually
(or more frequently if appropriate or desirable) during the Term in order to
ensure that the Specifications of the Products are mutually acceptable to both
parties. Align-Rite shall agree to any reasonable change to a Specification
requested by ▇▇▇▇▇▇ provided that such change is capable of being made by
Align-Rite and that the price of the Product in question is increased or
decreased to cover any increased or decreased cost of manufacture.
ARTICLE 7
DELIVERY AND PAYMENT
7.1 Align-Rite shall use commercially reasonable efforts to
fulfill Mask Orders received from ▇▇▇▇▇▇ for the Products on the date specified
in the purchase order and/or Mask Order and shall give ▇▇▇▇▇▇ as much advance
notice as reasonably possible if despite its commercially reasonable efforts it
is unable for any reason to fulfill any purchase order and/or Mask Order on the
specified date.
7.2 Align-Rite shall deliver the Products to the designated ship
address set forth on each purchase order and/or Mask Order, FOB/CIP Align-Rite's
manufacturing sites located in the United States. ▇▇▇▇▇▇ shall be responsible
for all shipping and other costs of delivery from the manufacturing sites
located in the United States. Align-Rite shall retain a security interest and
right of possession in the Products and ▇▇▇▇▇▇ hereby grants such security
interest therein to Align-Rite until ▇▇▇▇▇▇ makes full payment. Title and risk
of loss or damage to Products shall pass to ▇▇▇▇▇▇ at the FOB/CIP point.
7.3 ▇▇▇▇▇▇ shall pay for the Products which are supplied under
this Agreement in full within thirty (30) days of the date of the applicable
invoice.
ARTICLE 8
STRATEGIC ALLIANCE, CONSULTATION AND COOPERATION ARRANGEMENTS
8.1 During the Term, ▇▇▇▇▇▇ and Align-Rite shall make their
respective representatives available once every Quarter in order for:
8.1.1 ▇▇▇▇▇▇ to advise Align-Rite of its Product development
programs and its anticipated needs for Products and New Products;
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8.1.2 Align-Rite to inform ▇▇▇▇▇▇ of its capacity and
technological capabilities relating to Photomask products and
services offered by it from time to time; and
8.1.3 ▇▇▇▇▇▇ to review Align-Rite's performance in supplying
▇▇▇▇▇▇' Product requirements.
8.2 During the Term, ▇▇▇▇▇▇ shall use its commercially reasonable
efforts to maintain for Align-Rite the good will of the business of the
Photomask Business Unit at the Closing Date (including, without limitation,
merchant Photomask customers, suppliers and other parties having relationships
with the Photomask Business Unit).
8.3 During the Term, ▇▇▇▇▇▇ agrees at Align-Rite's expense as set
forth in the Site Services Agreement to cooperate and to provide such assistance
as Align-Rite may require from time to time in maintaining the Photomask
Business Unit's current ability to manufacture Products which meet Department of
Defense ("DOD") Secret and Top Secret status, provided such cooperation and
assistance is permitted under DOD and NSA regulations and is acceptable to DOD
and NSA. ▇▇▇▇▇▇ shall allow Align-Rite the use of ▇▇▇▇▇▇' Classified Material
Control Center (CMCC) for processing, storing and shipping classified material
pursuant to DD254 requirements, if such use is permissible under DOC and NSA
regulations.
8.4 During the Term of the Agreement, ▇▇▇▇▇▇ shall use its
commercially reasonable efforts to promote Align-Rite's Photomask products and
services to [*].
ARTICLE 9
TERMINATION RIGHTS AND
OBLIGATIONS UPON TERMINATION
9.1 Unless otherwise terminated pursuant to the provisions of
this Article 9, this Agreement shall continue in effect for the Term. The Term
may be extended on terms mutually acceptable to the parties.
9.2 This Agreement may be terminated at any time before the end
of the Term as follows and in no other manner:
9.2.1 By mutual agreement in writing by Align-Rite and ▇▇▇▇▇▇;
9.2.2 By Align-Rite upon ▇▇▇▇▇▇' failure to pay when due any
amounts required to be paid to Align-Rite after reasonable notice
under this Agreement;
9.2.3 By ▇▇▇▇▇▇ upon the entry of any order for relief under any
provision of any applicable bankruptcy code in any bankruptcy
proceedings initiated by or against Align-Rite or the
presentation of a petition or convening of a meeting for the
purpose of winding up Align-Rite's business, or entering into
liquidation whether compulsory or voluntarily, or compounding
with its creditors generally, or the appointment of a receiver
* Certain information in this exhibit has been omitted and filed separately
with the Commission. Redacted portions of the exhibit are indicated by an
asterisk within brackets ([*]), and a legend appears on the appropriate
pages. Confidential Treatment has been requested with respect to the omitted
portions.
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of any part of all of either party's assets, or either party
taking or suffering any similar action in consequence of debt;
9.2.4 By Align-Rite upon the entry of any order for relief under
any provision of any applicable bankruptcy code in any bankruptcy
proceedings initiated by or against ▇▇▇▇▇▇ or the presentation of
a petition or convening of a meeting for the purpose of winding
up ▇▇▇▇▇▇' business, or entering into liquidation whether
compulsory or voluntarily, or compounding with its creditors
generally, or the appointment of a receiver of any part of all of
either party's assets, or either party taking or suffering any
similar action in consequence of debt;
9.2.5 By ▇▇▇▇▇▇ upon Align-Rite's material breach of any of the
terms or conditions of this Agreement after written notice
thereof and a failure by Align-Rite to then cure such breach
within thirty (30) days except as otherwise provided in Section
3.6; and
9.2.6 By Align-Rite upon ▇▇▇▇▇▇' material breach of any of the
terms or conditions of this Agreement after written notice
thereof and a failure by ▇▇▇▇▇▇ to then cure such breach within
thirty (30) days.
9.3 In addition to any other remedies available to Align-Rite, in
the event Align-Rite terminates the Agreement, it shall have the following
rights: (i) if the Product has been delivered, Align-Rite may recover, together
with any incidental damages, any unpaid portion of the purchase price of the
Product; and (ii) if the Product has not been delivered, Align-Rite may withhold
delivery of such Product.
9.4 The failure of either party to enforce any provision of this
Agreement shall not be deemed a waiver of such provision.
ARTICLE 10
WARRANTIES
10.1 ▇▇▇▇▇▇ shall as soon as practicable, and in any event within
thirty (30) working days of the delivery of a Product at its premises, notify
Align-Rite in writing of any noncompliance with applicable Specifications.
10.2 If ▇▇▇▇▇▇ fails to give notice in accordance with Section
10.1, then except in respect of any noncompliance with applicable Specifications
which is such that it would not be apparent upon a reasonable visual inspection,
the Product in question shall be conclusively presumed to be in all respects in
accordance with its Specification, and ▇▇▇▇▇▇ shall be deemed to have accepted
the quality of such Product, and Align-Rite shall have no liability to ▇▇▇▇▇▇
with respect to that Product and the warranties made in Section 10.4 shall not
apply thereafter.
10.3 If ▇▇▇▇▇▇ rejects any delivery of a Product which it
believes is not in accordance with its Specification, then Align-Rite shall as
soon as practicable and in any event within five (5) working days of being
requested to do so by ▇▇▇▇▇▇ supply a replacement Product which is in accordance
with its Specifications or shall notify ▇▇▇▇▇▇ that it is unable to do so
whereupon ▇▇▇▇▇▇ shall be entitled to obtain such replacement Product from a
third party.
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10.4 Align-Rite warrants that Products delivered hereunder shall
be free and clear of liens and encumbrances arising from actions or inactions of
Align-Rite and shall have been manufactured to the applicable ▇▇▇▇▇▇
Specification. This warranty shall terminate in accordance with Section 10.2 or
for any noncompliance which is not apparent upon reasonable visual inspection
upon expiration of 135 calendar days following receipt by ▇▇▇▇▇▇ or its designee
of a shipment. In the event a problem occurs or is discovered after receipt by
▇▇▇▇▇▇, Align-Rite and ▇▇▇▇▇▇ agree to discuss and resolve such problem in good
faith.
10.5 The liability of Align-Rite hereunder is solely and
exclusively limited to replacement, or repair, or credit of the purchase price,
at ▇▇▇▇▇▇' option, for any Product which is returned by ▇▇▇▇▇▇ during the
applicable warranty period and which is found by ▇▇▇▇▇▇ to be subject to
adjustment under this warranty.
10.6 THIS WARRANTY EXTENDS TO ▇▇▇▇▇▇ ONLY. THIS WARRANTY IS IN
LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING
IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. THIS
WARRANTY DOES NOT APPLY TO DEFECTS ARISING AS A RESULT OF ▇▇▇▇▇▇' DESIGN OR
FORMULA. IN NO EVENT SHALL ALIGN-RITE BE LIABLE FOR ANY INCIDENTAL OR
CONSEQUENTIAL DAMAGES DUE TO BREACH OF THIS WARRANTY. ▇▇▇▇▇▇' SOLE REMEDY FOR
ANY BREACH SHALL BE LIMITED TO THE REMEDIES SET FORTH IN SECTION 10.5.
ARTICLE 11
DISPUTE RESOLUTION AND ARBITRATION
11.1 In the event that any dispute arises among the parties
pertaining to the subject matter of this Agreement, and the parties, through
Align-Rite's senior management and ▇▇▇▇▇▇' senior management are unable to
resolve such dispute within a reasonable time through negotiations and mediation
efforts by senior executives of both parties, such dispute shall be resolved as
set forth in this Article.
11.1.1 The following procedures may be initiated by written
notice ("Dispute Notice") given by one party ("Claimant") to the
other, but not before thirty (30) days have passed during which
the parties have been unable to reach a resolution as described
above. The Dispute Notice shall be accompanied by (i) a statement
of the Claimant describing the dispute in reasonable detail and
(ii) documentation, if any, supporting the Claimant's position on
the dispute. Within twenty (20) days after the other party's
("Respondent") receipt of the Dispute Notice and accompanying
materials, the parties shall submit the dispute to mediation in
the Orlando, Florida area under the rules of the American
Arbitration Association. All negotiations and mediation
procedures pursuant to this paragraph 11.1.1 shall be
confidential and treated as compromise and settlement
negotiations and shall not be admissible in any arbitration or
other proceeding.
11.1.2 If the dispute is not resolved as provided in Section
11.1.1 within sixty (60) days after the Respondent's receipt of
the Dispute Notice, the dispute shall be resolved by binding
arbitration. Within the sixty-day period referred to in the
immediately preceding sentence, the parties shall agree on a
single arbitrator to resolve the dispute. If the parties
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fail to agree on the designation of an arbitrator within said
sixty-day period, the American Arbitration Association in the
Orlando, Florida area shall be requested to designate the single
arbitrator. If the arbitrator becomes disabled, resigns or is
otherwise unable to discharge the arbitrator's duties, the
arbitrator's successor shall be appointed in the same manner as
the arbitrator was appointed.
11.1.3 Except as otherwise provided in this Article, the
arbitration shall be conducted in accordance with the Commercial
Rules of the American Arbitration Association, which shall be
governed by the United States Arbitration Act.
11.1.4 Any resolution reached through mediation and any award
arising out of arbitration (i) shall be binding and conclusive
upon the parties; (ii) shall be limited to a holding for or
against a party, and affording such monetary remedy as is deemed
equitable, just and within the scope of this Agreement; (iii) may
not include special, incidental, consequential or punitive
damages; (iv) may in appropriate circumstances include injunctive
relief; and (v) may be entered in court in accordance with the
United States Arbitration Act.
11.1.5 Arbitration shall not be deemed a waiver of any right of
termination under this Agreement, and the arbitrator is not
empowered to act or make any award other than based solely on the
rights and obligations of the parties prior to termination in
accordance with this Agreement.
11.1.6 The arbitrator may not limit, expand or otherwise modify
the terms of this Agreement.
11.1.7 The laws of the State of Florida shall apply to any
mediation, arbitration, or litigation arising under this
Agreement. 11.1.8 Each party shall bear its own expenses incurred
in any mediation, arbitration or litigation, but any expenses
related to the compensation and the costs of any mediator or
arbitrator shall be borne equally by the parties to the dispute.
11.1.9 A request by a party to a court for interim measures
necessary to preserve a party's rights and remedies for
resolution pursuant to this Article shall not be deemed a waiver
of the obligation to mediate or of the agreement to arbitrate.
11.1.10 The parties, their representatives, other participants
and the mediator or arbitrator shall hold the existence, content
and result of mediation or arbitration in confidence.
ARTICLE 12
CONFIDENTIALITY
12.1 During the course of this Agreement each party may obtain
possession of information belonging to the other parties which contains
confidential or secret information (e.g. inventions, know-how, trade secrets,
future product plans). As far as such information is disclosed by one party to
the other party it shall be clearly labeled "Confidential" or the like.
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12.2 The party which obtains possession of such confidential
information shall maintain all such information in confidence and shall not
disclose it to a third party without the prior written consent of the other
party. These non-disclosure obligations shall terminate ten (10) years after
receipt of such information.
12.3 These non-disclosure obligations shall not apply with
respect to any information which: (i) now or hereafter, through no act or
failure to act on the part of the obtaining party, becomes generally known or
available; (ii) is known by the party at the time of obtaining it from the other
party; (iii) is furnished to third parties by the party without restriction on
disclosure; (iv) is independently developed by the obtaining party; or (v) is
furnished to the obtaining party by a third party as a matter of right and
without restriction on disclosure. The obligations of this Article 12 shall
survive the expiration or any termination of this Agreement.
ARTICLE 13
GENERAL
13.1 INDEPENDENT CONTRACTORS. Both parties are independent
contractors under this Agreement. Nothing contained in this Agreement is
intended nor is to be construed so as to constitute Align-Rite and ▇▇▇▇▇▇ as
partners, agents or joint venturers with respect to this Agreement. Neither
party hereto shall have any express or implied right or authority to assume or
create any obligations on behalf of or in the name of the other party or to bind
the other party to any contract, agreement or undertaking with any third party.
13.2 AMENDMENTS; WAIVERS. This Agreement and any schedule or
exhibit attached hereto may be amended only by agreement in writing of the
parties to the Agreement. No waiver of any provision nor consent to any
exception to the terms of this Agreement or any agreement contemplated hereby
shall be effective unless in writing and signed by the party to be bound and
then only to the specific purpose, extent and instance so provided.
13.3 SCHEDULES; EXHIBITS; INTEGRATION. Each Schedule and Exhibit
delivered pursuant to the terms of this Agreement shall be in writing and shall
constitute a part of this Agreement, although Schedules need not be attached to
each copy of this Agreement. This Agreement, together with such Schedules and
Exhibits, and the Asset Purchase Agreement constitutes the entire agreement
among the parties pertaining to the subject matter hereof and supersedes all
prior agreements and understandings of the parties in connection therewith,
including, but not limited to, the letter of intent dated April, 20, 1999,
between ▇▇▇▇▇▇ and Align-Rite.
13.4 FORCE MAJEURE. No party to this Agreement shall be deemed to
be in breach of this Agreement or otherwise liable to any other party in any
manner whatsoever for any failure or delay in performing its obligations under
this Agreement due to Force Majeure. If a party's performance of its obligations
under this Agreement is affected by Force Majeure, then: (i) it shall give
written notice to the other parties, specifying the nature and extent of the
Force Majeure, as soon as reasonably practicable on becoming aware of the Force
Majeure and will at all times use its reasonable endeavors to mitigate the
severity of the Force Majeure; (ii) the date for performance of such obligation
shall be deemed suspended only for a period equal to the delay caused by such
event; and (iii) it shall not be entitled to payment from the other party in
respect of extra costs and expenses incurred by virtue of the Force Majeure
event.
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13.5 ASSIGNMENT. Neither Align-Rite nor ▇▇▇▇▇▇ may assign this
Agreement without the prior written consent of the other, except that Align-Rite
may assign its rights hereunder to any wholly-owned subsidiary or Affiliate of
Align-Rite or to any post-Closing purchaser(s) of all of the capital stock of
Align-Rite or of substantially all of its assets, and except that ▇▇▇▇▇▇ may
assign its rights hereunder to any wholly-owned subsidiary or Affiliate of
▇▇▇▇▇▇ or to any post-Closing purchaser(s) of substantially all of the
Semiconductor Business Unit of ▇▇▇▇▇▇. Notwithstanding the above, ▇▇▇▇▇▇
covenants and agrees that in the event it sells all or substantially all of its
assets related to its semiconductor business (including, but not limited to, its
June 3, 1999 announced sale of its semiconductor business to a subsidiary of
Sterling Holding Company, Citicorp Venture Capital investment portfolio
company), it shall require as a condition of completion of such transaction that
the purchaser of such assets, as well as any successors of any such purchaser,
enters into an express assumption of this Agreement, as if such purchaser or
such successor were the original party to this Agreement, and the form of any
such assumption agreements shall be reasonably acceptable to Align-Rite. In the
event of any such assignments, ▇▇▇▇▇▇ shall be deemed to have guaranteed the
performance of such purchaser's or successor's obligations hereunder and be
responsible therefor. Align-Rite covenants and agrees that in the event it sells
all or substantially all of the Business Assets, it shall require that the
purchaser of such assets, as well as any successors of any such purchaser,
enters into an express assumption of this Agreement, as if such purchaser or
such successor were the original party to this Agreement, and the form of any
such assumption agreements shall be reasonably acceptable to ▇▇▇▇▇▇. In the
event of any such assignments, Align-Rite shall be deemed to have guaranteed the
performance of such purchaser's or successor's obligations hereunder and be
responsible therefor.
ARTICLE 14
NOTICES
14.1 Any notice or any other information required or authorized
by this Agreement to be given by any party to the other must be given in writing
by U.S. mail, facsimile or overnight courier to the other party at the address
for service notified in Section 14.3 or to such other address as any party may
notify to the others from time to time in writing as being the address for
service.
14.2 To be a valid and enforceable notice, evidence of receipt by
the recipient of such notice shall be required.
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14.3 The addresses and contact numbers of those persons who are
authorized to accept service on behalf of the parties to this Agreement are set
out below:
ON BEHALF OF ALIGN-RITE AND SUB TO:
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Align-Rite International, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇
Telephone No: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇)▇▇▇-▇▇▇▇
WITH A COPY TO:
J. ▇▇▇ ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
O'Melveny & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇)▇▇▇-▇▇▇▇
ON BEHALF OF ▇▇▇▇▇▇ TO:
▇▇▇▇▇▇ Corporation
Semiconductor Sector
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇.▇.
Mail Stop ▇▇-▇▇▇
▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇) ▇▇▇-▇▇▇▇
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WITH A COPY TO:
▇▇▇▇▇▇ Corporation
▇▇▇▇▇▇ ▇. ▇▇▇▇
Vice President-Counsel
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇.▇.
Mail Stop ▇▇-▇▇▇
▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No: (▇▇▇)▇▇▇-▇▇▇▇
Facsimile No: (▇▇▇)▇▇▇-▇▇▇▇
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IN WITNESS WHEREOF, this agreement is entered into by duly
authorized representatives of the parties hereto on the date first above
written.
ALIGN-RIGHT INTERNATIONAL, INC.,
A CALIFORNIA CORPORATION
By: ____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chairman of the Board and Chief
Executive Officer
ALIGN-RITE, INC.,
A FLORIDA CORPORATION
By: ____________________________________
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Chairman of the Board
▇▇▇▇▇▇ CORPORATION,
A DELAWARE CORPORATION
By: ____________________________________
▇.▇. ▇▇▇▇▇▇
Vice President-General Manager Operations
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