Joint Development Agreement Dated March 14, 2005

Exhibit 10.1


EXECUTION COPY 3/14/05

JOINT DEVELOPMENT AGREEMENT

by and between


TRIKON TECHNOLOGIES, INC.


and


AVIZA TECHNOLOGY, INC.


dated

March 14, 2005

EXECUTION COPY 3/14/05


TABLE OF CONTENTS


ARTICLE I Definitions and Construction 1

1.1 Definitions 1

1.2 Construction 4

ARTICLE II Development 4

2.1 General 4

2.2 Delivery of Existing Manufacturing Documentation and Software Source Code 4

2.3 Requirements 4

2.4

First Payment Milestones Delivery of Trikon Transport Module and the Existing Manufacturing Documentation

and Source Code 5

2.5 Delivery of Documented Transport Module Software 5

2.6 Second Payment Milestone Delivery of Developed Software 5

2.7 Third Payment Milestone Acceptance of Software 6

2.8 Milestone Dependencies 6

ARTICLE III Project Management 7

3.1 Project Managers 7

3.2 Responsibilities 7

3.3 Appointment 7

3.4 Replacement 7

3.5 Facilities 7

3.6 Development Access 7

ARTICLE IV Post-Development Supply and License 8

4.1 Supply Commitment 8

4.2 Price 8

4.3 Limitation 8

4.4 Manufacturing Documentation and Software Updates 8

ARTICLE V Fees and Payment 9

5.1 Development Fee 9

5.2 License Fee 9

5.3 Royalties 9

5.4 Taxes 9

5.5 Payment Method 10

ARTICLE VI IP Rights and Ownership 10

6.1 General IP Ownership 10

ARTICLE VII IP and Software Licenses 10

7.1 General 10


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7.2 Granted By Trikon 10

7.3 Delivery 11

ARTICLE VIII Confidentiality 11

8.1 Confidential Information 11

8.2 Confidential Information Exclusions 11

8.3 Mandatory Disclosures 11

8.4 Confidentiality Obligation 11

8.5 Confidentiality of Agreement 12

ARTICLE IX Representations and Warranties 12

9.1 Mutual Representations and Warranties 12

9.2 Trikon Representations and Warranties. 12

9.3 Existing Manufacturing Documentation and Software 13

9.4 Disclaimer 13

ARTICLE X Indemnity 13

10.1 Indemnification by Trikon 13

10.2 Remedies 13

10.3 Limitations 14

ARTICLE XI Limitation of Liability 14

11.1 CONSEQUENTIAL DAMAGES 14

11.2 LIMITATION OF LIABILITY 14

ARTICLE XII Governing Law 14

12.1 Governing Law 14

ARTICLE XIII Term and Termination 15

13.1 Term of Agreement 15

13.2 Termination by Aviza 15

13.3 Termination for Cause 15

13.4 Effect of Termination 15

ARTICLE XIV Miscellaneous 15

14.1 Force Majeure 15

14.2 Import and Export 15

14.3 Relationship of Parties 15

14.4 No Third Party Beneficiaries 16

14.5 Notices 16

14.6 Assignment 16

14.7 Waiver and Modification 16

14.8 Severability 16

14.9 Trademarks 16

14.10 Freedom of Action 16

14.11 Entire Agreement 17

14.12 Counterparts 17


EXECUTION COPY 3/14/05


TABLE OF EXHIBITS


EXHIBIT A Development Plan

EXHIBIT A-1 Requirements

EXHIBIT A-2 Trikon Milestones and Aviza Dependencies

EXHIBIT A-3 Acceptance Criteria

EXHIBIT B Software Support Terms

EXHIBIT 4.1 Purchase Terms and Conditions


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EXECUTION COPY 3/14/05


JOINT DEVELOPMENT AGREEMENT


This Joint Development Agreement (the " Agreement" ) is made and entered into as of this 14 th day of March, 2005 (" Effective Date" ), by and between Aviza Technology, Inc., a Delaware corporation (" Aviza" ), and Trikon Technologies, Inc. a Delaware corporation (" Trikon" ). (As used in this Agreement, each of Aviza and Trikon is a " Party" and collectively the " Parties ." )

BACKGROUND

A. Trikon is in the business, among other things, of marketing and selling equipment for deposition and etch of thin films for use in the production of semiconductor devices.

B. Aviza is in the business, among other things, of marketing and selling advanced thermal processing and atomic layer deposition (" ALD" ) equipment for the semiconductor industry.


C. Aviza wishes to fund the development by Trikon of control software for an existing Aviza process module in accordance with Aviza' s requirements [ OMITTED] .

D. Following the completion of such development work, Trikon wishes to make available (and Aviza wishes to purchase) transport modules and system controls incorporating Trikon software as modified pursuant to this Agreement, and Trikon wishes to grant (and Aviza to receive) certain license rights related to such items, all on the terms and conditions set forth in this Agreement.

Therefore, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:


AGREEMENT


ARTICLE I Definitions and Construction

1.1 Definitions . The following capitalized terms have the meanings set forth below:


(a) " Acceptance Criteria" means the acceptance criteria for the Developed Software set forth in Exhibit A-3, as may be amended or supplemented by Parties.


(b) " Affiliate" means any entity that controls, is controlled by or is under common control with a Party. An entity shall be regarded as in control of another entity for purposes of this definition if it owns or controls more than fifty percent (50%) of the shares of the subject entity entitled to vote in the election of directors (or, in the case of an entity that is not a corporation, for the election of the corresponding managing authority).

(c) " Aviza Deliverable" means any tangible items to be delivered by Aviza to Trikon pursuant to the Development Plan.


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(d) " Aviza Dependencies" has the meaning specified in Exhibit A-2.

(e) " Aviza Dependency Dates" means the dates set forth in Exhibit A-2 as the dates by which the corresponding Aviza Dependencies must be satisfied in order for Trikon to be obligated to satisfy the Trikon Milestones by the corresponding Milestone Dates.

(f) " Aviza Process Modules" means the [OMITTED] process modules, including the current [OMITTED] process modules described in the Requirements and Development Plan.

(g) " Business Day" means any day other than a Saturday, Sunday or public or religious holiday that is actually observed generally by all public institutions or banks in San Francisco, California. A Business Day commences at 8:00 a.m. Pacific Time and concludes at 5:00 p.m. Pacific Time in the United States of America.


(h) " Commercial Units" has the meaning specified in Section 4.1.

(i) " Confidential Information" has the meaning specified in Section 8.1.


(j) " Controller" means Trikon' s existing PC-104 controller.


(k) " Derivative Work" has the meaning ascribed to it under the United States Copyright Law, Title 17 U.S.C. Sec. 101 et. seq., as the same may be amended from time to time.


(l) " Developed Software" means the control system software to be developed by Trikon under this Agreement for an Aviza Process Module, as described in the Requirements and Development Plan.


(m) " Development Fee" has the meaning specified in Section 5.1.

(n) " Development Plan" means the plan for the development of the Developed Software in accordance with the Requirements provided to Trikon by Aviza, set forth in Exhibit A, as such plan may be amended in accordance with the terms of this Agreement.

(o) " Improvement" means any adaptation, improvement, upgrade, update, enhancement, new version, bug-fix, patch, extension, or Derivative Work, as applicable.


(p) " Intellectual Property Rights" means the rights associated with the following: (i) all United States and foreign patents and applications therefor (" Patents" ); (ii) all copyrights, copyright registrations and applications therefor and all other rights corresponding thereto throughout the world (" Copyrights" ); (iii) all trademarks, service marks, trade names, trade dress rights and similar designation of origin and rights therein (" Marks" ); (v) all rights in trade secrets and Confidential Information; and (vi) any similar, corresponding or equivalent rights to any of the foregoing any where in the world.

(q) " License Fee" has the meaning specified in Section 5.2.


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(r) " Licensed Product" means any Commercial Unit manufactured either by Aviza or for Aviza by a third party (other than Trikon) pursuant to the Manufacturing Rights granted in Section 7.2 that is Sold by Aviza to its end customers.

(s) " Manufacturing Documentation" has the meaning specified in Section 4.4.


(t) " Manufacturing Rights" has the meaning specified in Section 7.2.

(u) " Milestone Dates" means the dates set forth in Exhibit A-2 as the dates by which Trikon is required to satisfy the corresponding Trikon Milestones.


(v) " Payment Milestones" means those Trikon Milestones described in Article II as " Payment Milestones" and further described in Exhibit A-2, which, when satisfied by Trikon, require Aviza' s payment to Trikon of the specified portions of the Development Fee in accordance with Section 5.1.

(w) " Personnel" means, with respect to a Party, such Party' s employees working on such Party' s behalf. For clarity, Trikon and its employees shall not be considered working on Aviza' s behalf.


(x) " Project Managers" has the meaning specified in Section 3.1.


(y) " Requirements" means the functional and technical requirements for the Developed Software as agreed upon by the Parties pursuant to Section 2.3 and set forth in Exhibit A-1, as may be amended or supplemented by mutual agreement of the Parties.


(z) " Sale" means, for purposes of determining royalties payable to Trikon under Section 5.3, Aviza' s shipment of a Licensed Product to an end customer. The terms " Sell" and " Sold" will have the same meaning when used herein as the term " Sale."


(aa) " Software" means the Transport Module Software and the Developed Software.


(bb) " Source Code" shall mean the human-readable form of software that can be compiled into executable code form, together with any documentation for the source code.

(cc) " Trikon Deliverables" means the Software and any other hardware, software, Source Code, documentation, test results or other tangible items or materials listed in this Agreement, including Exhibit A-1, to be delivered by Trikon to Aviza pursuant to this Agreement.

(dd) " Trikon Milestones" means the distinct milestones that are to be satisfied by Trikon in connection with its performance of the Development Plan as set forth in Exhibit A-2.

(ee) " Trikon Transport Module" means Trikon' s existing transport module on which Trikon' s Transport Module Software has been installed, with any modifications, including Improvements, made to such module by or on behalf of Trikon.

(ff) " Transport Module Software" means the Trikon proprietary transport module software as it exists on the Effective Date and as modified by Trikon during the term of the Agreement.


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1.2 Construction For purposes of this Agreement, whenever the context requires: the singular number will include the plural, and vice versa; the masculine gender will include the feminine and neuter genders; the feminine gender will include the masculine and neuter genders; and the neuter gender will include the masculine and feminine genders.


(b) The Parties waive the application of any law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.


(c) As used in this Agreement, the words " include" and " including," and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words " without limitation."

(d) Except as otherwise indicated, all references in this Agreement to " Sections" and " Exhibits" are intended to refer to Sections of this Agreement and Exhibits to this Agreement.


(e) The headings in this Agreement are for convenience of reference only, will not be deemed to be a part of this Agreement, and will not be referred to in connection with the construction or interpretation of this Agreement.

ARTICLE II

Development


2.1 General . In accordance with and subject to the terms of this Agreement, Trikon shall deliver to Aviza a Trikon Transport Module, and shall develop and deliver the Trikon Deliverables, including the Software in executable code and Source Code form, in accordance with the terms set forth below and in the Development Plan. The components of the Trikon Deliverables, including the Software, will conform to the Requirements. In accordance with Section 5.1, upon satisfaction by Trikon of the Payment Milestones, Aviza shall pay to Trikon the Development Fee.


2.2 Delivery of Existing Manufacturing Documentation and Software Source Code .

(a) As soon as practicable but no later than twenty-one (21) days after the Effective Date, Trikon shall provide Aviza with a copy of all documentation necessary for the manufacture of the Commercial Units that it possesses as of the Effective Date, including designs, vendor details and part numbers (the " Manufacturing Documentation" ), and a copy of the Source Code for the Transport Module Software and the existing Trikon control system software, as documented as of the Effective Date.

(b) Updates to the Manufacturing Documentation and the Transport Module Software shall be provided as set forth in Section 2.5 and 4.4.

2.3 Requirements .

(a) Within seven (7) days after the Effective Date of this Agreement, Trikon shall supply to Aviza information regarding the software architecture and the requirements (e.g., input/output requirements) of the Controller and the performance capabilities of the control system software incorporated in the Controller as of the Effective Date for the control of Trikon' s existing [OMITTED] process module.


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(b) Within thirty (30) days after Aviza' s receipt of such information from Trikon, Aviza will deliver to the Trikon' s Project Manager, in electronic or other reasonable form, a copy of the proposed Requirements, which will be substantially based on the control systems software incorporated in the Controller as of the Effective Date for the control of Trikon' s existing [OMITTED] process module and Trikon' s descriptions of such control system software, but which will also take into account the unique, incremental features and functions of the Developed Software reasonably required by Aviza to enable the Trikon Transport Module to work successfully with the Aviza Process Module.

(c) Trikon shall review the Requirements submitted by Aviza promptly upon its receipt thereof and shall notify Aviza promptly if Trikon determines in good faith that the Requirements as proposed by Aviza are inconsistent with the general framework of Section 2.3(b) and either require significantly greater development resources than Trikon can bring to bear in the intended development time or Trikon cannot otherwise perform. The Parties will meet immediately thereafter and will use all reasonable efforts to resolve all outstanding issues regarding the Requirements and reach agreement as to the final set of Requirements as soon as possible. Concurrent with Aviza' s submission and the Parties' discussion, if any, of the Requirements, the Parties will use all reasonable efforts to finalize the other related aspects of the Development Plan, including the Milestone Dates, Aviza Dependencies, Aviza Dependency Dates and Acceptance Criteria. The final Requirements will become part of this Agreement and will be attached hereto as Exhibit A-1. The final Milestone Dates, Aviza Dependencies, Aviza Dependency Dates and Acceptance Criteria will become part of this Agreement and will be attached hereto as Exhibits A-2 and A-3, as applicable.

2.4 First Payment Milestones Delivery of Trikon Transport Module and the Existing Manufacturing Documentation and Source Code . Trikon shall deliver, on or prior to the First Milestone Date, a Trikon Transport Module within Aviza' s Scotts Valley site. Trikon' s delivery of the Trikon Transport Module at Aviza' s site shall constitute the occurrence of the " First Payment Milestone ." The Parties acknowledge that Trikon delivered the Trikon Transport Module at Aviza' s site as this Section 2.4 requires prior to this Agreement' s Effective Date.

2.5 Delivery of Documented Transport Module Software . By May 1, 2005, Trikon shall provide Aviza with a copy of the then-current version of the Source Code for the Transport Module Software written in a form and documented in such a manner so as to enable a software engineer reasonably skilled in the relevant software field to use and modify the Transport Module Software.


2.6 Second Payment Milestone Delivery of Developed Software . Trikon shall deliver a copy of the Developed Software, in both executable code and Source Code form, to Aviza on or prior to the Second Milestone Date, which delivery shall constitute the occurrence of the " Second Payment Milestone ."


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2.7 Third Payment Milestone Acceptance of Software Aviza' s acceptance of the Developed Software in accordance with this Section 2.7 shall constitute the occurrence of the " Third Payment Milestone ." Trikon shall satisfy the Third Payment Milestone by the Third Milestone Date. Trikon' s satisfaction of the Third Payment Milestone shall be determined in accordance with the following:


(i) Prior to delivery of the Developed Software to Aviza, Trikon will be given the opportunity to test and, if necessary, de-bug the Developed Software on a representative, functional Aviza Process Module, including, if required by Trikon, on the Trikon Transport Module provided at Aviza' s Scotts Valley site.

(ii) Upon receipt of the Developed Software under Section 2.6, Aviza shall test the Developed Software to determine if it meets the Acceptance Criteria for the Developed Software.


(iii) If Aviza rejects the Developed Software, it shall provide the Trikon Project Manager with a written notice of rejection within thirty (30) days from the date of its initial receipt of the Developed Software (and similarly in the case of a second or subsequent test of the Developed Software in accordance with Section 2.7(a)(iv), below; such period the " Acceptance Period" ). Failure of Aviza to provide such rejection notice in the Acceptance Period shall be deemed acceptance of the Developed Software and the satisfaction by Trikon of the Third Payment Milestone.


(iv) Aviza may only issue a rejection notice if it determines that the Developed Software fails to comply with the relevant Acceptance Criteria. A rejection notice shall set forth in detail the reasons for Aviza' s rejection of the Developed Software.


(v) Upon receipt of the rejection notice, Trikon shall have a reasonable amount of time but no more than fifteen (15) days after receipt of such notice to correct any nonconformance or defect in the Developed Software and to return an updated copy of Developed Software to Aviza for acceptance as provided in this Section 2.7. Upon receipt of such updated Developed Software, Aviza shall re-commence acceptance testing in accordance with Section 2.7(a)(i) above.

(vi) Subject to Sections 2.7(a)(i) through 2.7(a)(iv), the above acceptance procedures shall be rep ...