AMENDED AND RESTATED JOINT VENTURE AGREEMENT AMONG TCZ GMBH CYMER, INC. CARL ZEISS SMT AG CARL ZEISS LASER OPTICS BETEILIGUNGSGESELLSCHAFT MBH AND TCZ PTE. LTD

Exhibit 10.2
*** Text Omitted and Filed Separately
Pursuant to a Confidential Treatment Request
under 17 C.F.R. §§ 200.80(b)(4) and 240.24b-2(b)(1)

AMENDED AND RESTATED

JOINT VENTURE AGREEMENT

AMONG

TCZ GMBH

CYMER, INC.

CARL ZEISS SMT AG

CARL ZEISS LASER OPTICS BETEILIGUNGSGESELLSCHAFT MBH

AND

TCZ PTE. LTD.

TABLE OF CONTENTS

AMENDED AND RESTATED

JOINT VENTURE AGREEMENT

This Amended and Restated Joint Venture Agreement is made on 12 September 2006 amongst:

• • (1)                                   TCZ GmbH of Bionstrasse 5, 9015 St. Gallen, Switzerland (" TCZ Switzerland ");

    (2)                                   Cymer, Inc. , a Nevada corporation (" Cymer ");

    (3)                                   Carl Zeiss SMT AG , a stock corporation organized under the laws of Germany (" Zeiss SMT ");

    (4)                                   Carl Zeiss Laser Optics Beteiligungsgesellschaft mbH , a limited liability company organized under the laws of Germany and an indirect wholly-owned subsidiary of Zeiss SMT (" Zeiss LOB "); and

    (5)                                   TCZ Pte. Ltd. , a company incorporated in Singapore (registration no. 200609581M), whose registered office is at 1 Temasek Avenue #27-01, Singapore 039192 (the " Company ");

Capitalized terms used herein but not defined when used have the meanings assigned to such terms in Article 1.

RECITALS:

• • (A)                               On 15 July 2005, TCZ Switzerland, Cymer, Zeiss SMT and Zeiss LOB entered into a joint venture agreement (as amended by an amendment agreement no. 1 dated 16 September 2005 entered into amongst the parties) (together, the " Original JV Agreement ") to establish TCZ Switzerland as a joint venture to develop, integrate, market, sell and support tools employing a beam generated by an excimer laser to induce crystallization for Low Temperature Poly-Silicon (LTPS) processing (the " Products ") for the manufacture of flat panel displays, including LCDs, LCD SOGs and OLEDs, to engage in related application development and to search for other business opportunities for process tools for the manufacture of flat panel displays.

    (B)                                 The Original JV Agreement provided for (i) the governance of the affairs of TCZ Switzerland, (ii) the rights, obligations and understandings of Cymer and Zeiss LOB in relation to TCZ Switzerland and (iii) the [ . . . * * *   . . .] under the Original JV Agreement.

    (C)                                 Cymer, Zeiss SMT and Zeiss LOB have agreed to move their joint venture vehicle to Singapore in the form of the Company with effect from 12 September 2006 (or such other date as may be agreed amongst the parties) (the " Effective Date ") and in this regard, are desirous of amending and restating the Original JV Agreement in the manner provided herein.

*** Confidential Treatment Requested

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• • (D)                                As at the date of this Agreement, the Company has a paid-in capital of [ . . . * * *   . . .] consisting of [ . . . * * *   . . .] shares of which [ . . . * * *   . . .] shares are held by Cymer and [ . . . * * *   . . .] shares are held by Zeiss LOB.

    (E)                                  For the avoidance of doubt, the Original JV Agreement remains in full force and effect as amongst TCZ Switzerland, Cymer, Zeiss SMT and Zeiss LOB until this Amended and Restated Joint Venture Agreement is deemed to take effect as of the Effective Date.

NOW, THEREFORE, the parties hereto agree as follows:

ARTICLE 1
DEFINITIONS

Section 1.01.          Definitions.  (a) As used herein, the following terms have the following meanings:

" ACRA " means the Accounting & Corporate Regulatory Authority of Singapore.

" Act " means the Companies Act (Chapter 50 of Singapore), as amended, supplemented or otherwise modified from time to time.

" Additional Funding Date " means 13 September 2006 (or such other date as may be agreed by and among the parties).

" Administrative Services Agreements " means the Administrative Services Agreement dated as of 16 September 2005 entered into between Cymer and TCZ Switzerland (which has been novated to the Company by way of a deed of novation executed on or around the Effective Date), as amended, supplemented or otherwise modified from time to time.

" Affiliate " means, with respect to any Person, any other Person directly or indirectly controlling, controlled by or under common control with such Person.  As used herein, " control " (and the derivative terms " controlling " and " controlled ") means the direct or indirect ownership of more than fifty percent (50%) of the equity securities or other ownership interests and voting rights of, and the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract or otherwise.  No party or its Affiliates shall by reason of this Agreement be deemed to be an affiliate of the other party or its Affiliates.  The term " affiliated " shall have a corresponding meaning.  Notwithstanding the foregoing definition, when used with respect to Zeiss SMT or Zeiss LOB, the term " Affiliate " shall exclusively mean (a) Zeiss SMT and any Person under the control of Zeiss SMT and (b) IMT and any Person under the control of IMT.  Notwithstanding the foregoing definition, for purposes of this Agreement, the Company and its subsidiaries shall not be considered an Affiliate of either Member.

" Agreement " means this Joint Venture Agreement, as amended, supplemented or otherwise modified from time to time.

*** Confidential Treatment Requested

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" Area of Responsibility " means each area of the R&D Effort in which one Member or the Company has primary responsibility for directing and carrying out research, as specified from time to time in the then current Business Plan.

" Budget Year " means the period commencing on the date of this Agreement and ending on December 31, 2006 and each successive one-year period thereafter.

" Capital Call Notice " means a written request delivered by the Company to each Member from time to time requesting that each Member provide funds to the Company.  Such notice shall specify in reasonable detail (i) the amount being requested, (ii) the Company’s anticipated use of funds and the timing of such use, and (iii) wire transfer instructions.

" Confidentiality Agreement " means the Confidentiality Agreement dated as of 16 September 2005 entered into among Cymer, Zeiss SMT, IMT and TCZ Switzerland (which has been novated to the Company by way of a deed of novation executed on or around the Effective Date), as amended, supplemented or otherwise modified from time to time.

" Cymer Supply Agreement " means the Supply Agreement dated as of 16 September 2005 entered into between Cymer and TCZ Switzerland (which has been novated to the Company by way of a deed of novation executed on or around the Effective Date), as amended, supplemented or otherwise modified from time to time.

" Deliverable " means work product or deliverables of any type to be developed or delivered by a Member during the course of a Project.

" Facilities License Agreement " means the Facilities License Agreement entered into between TCZ USA LLC and Cymer relating to use by TCZ USA LLC of certain facilities in the United States, as amended, supplemented or otherwise modified from time to time.

" FRS " means Financial Reporting Standards, which Singapore-incorporated companies are obliged to follow in preparing their accounts and which are set out in the Companies (Accounting Standards) Regulations.

" GAAP " means United States generally accepted accounting principles, consistently applied.

" IMT " means Carl Zeiss Industrielle Messtechnik GmbH.

" IMT IP Side Letter " means the side letter to the Intellectual Property Agreement dated 16 September 2005 executed by IMT (which has been novated to the Company by way of a deed of novation executed on or around the Effective Date), as amended, supplemented or otherwise modified from time to time.

" Intellectual Property Agreement " means the intellectual property agreement dated as of 16 September 2005 among TCZ Switzerland, Cymer and Zeiss SMT (which has been novated to the Company by way of a deed of novation executed on or around the Effective Date), as amended, supplemented or otherwise modified from time to time.

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 " Intellectual Property " means any or all of the following: (i) works of authorship, including, without limitation, computer programs, algorithms, routines, source code and executable code, whether embodied in software, firmware or otherwise, documentation, designs, files, records and data, (ii) inventions (whether or not patentable), improvements, and technology, (iii) proprietary and confidential information, including, without limitation, technical data and customer and supplier lists, trade secrets, know-how and techniques, (iv) databases, data compilations and collections and technical data, (v) logos, trade names, trade dress, trademarks and service marks, (vi) domain names, web addresses and sites, (vii) tools, methods, processes, devices, prototypes, schematics and test methodologies, and (viii) any and all instantiations of the foregoing in any form and embodied in any media.

" Intellectual Property Rights " means any or all of the following and all rights in, arising out of, or associated therewith, whether arising from statute or common law: (i) all United States and foreign patents and utility models and applications therefor and all reissues, divisions, re-examinations, renewals, extensions, provisionals, continuations and continuations-in-part thereof, and equivalent or similar rights anywhere in the world in inventions and discoveries, including, without limitation, invention disclosures, (ii) all trade secrets and other rights in know-how and confidential or proprietary information, (iii) all copyrights, copyright registrations and applications therefor and all other rights corresponding thereto throughout the world, (iv) all industrial designs and any registrations and applications therefor throughout the world, (v) all rights in World Wide Web addresses and domain names and applications and registrations therefor, all trade names, logos, common law trademarks and service marks, trademark and service mark registrations and applications therefor and all goodwill associated therewith throughout the world, and (vi) any similar, corresponding or equivalent rights to any of the foregoing throughout the world.

" Interest " means, with respect to any Member, the aggregate shares in the Company held by such Member.

" Joint Venture Documents " means, collectively, this Agreement, the Intellectual Property Agreement, the Supply Agreements, the Administrative Services Agreements, the Facilities License Agreement and the Confidentiality Agreement.

" Member " means Cymer, Zeiss LOB or any other Person who, at such time, is admitted to the Company as a Member in accordance with the terms of this Agreement, each in its capacity as a shareholder of the Company.

" Members Meeting " means a meeting of the Members held in accordance with the provisions of this Agreement, the Singapore Corporate Documents and the Act.

" Member Parent " means, with respect to any Member, (i) in the case of Cymer or any Member that is an Affiliate of Cymer, Cymer, Inc., (ii) in the case of Zeiss LOB or any Member that is an Affiliate of Zeiss SMT, Carl Zeiss SMT AG and (iii) in the case of any Member that is not an Affiliate of either Cymer or Zeiss SMT, the ultimate parent company of such Member.

" Net Income " shall mean, for any period, the Company’s net income as determined under FRS.

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" Percentage Interest " means, with respect to any Member, such Member’s percentage Interest as set forth in Section 4.01.

" Person " means an individual, corporation, partnership, association, trust, limited liability company or any other entity or organization, including a government or political subdivision or an agency or instrumentality thereof.

" R&D Effort " means research and development undertaken by either Member reasonably related to the Business.

" subsidiary " bears the same meaning as set out in section 5 of the Act.

" Supplier " means, with respect to any Supply Agreement, the Person identified as the Supplier in such Supply Agreement, including any transferee of all or substantially all of the assets of a Supplier that has assumed such Supply Agreement in accordance therewith.

" Supply Agreements " means the Cymer Supply Agreement and the Zeiss Supply Agreement.

" S$ " or " $ " means the lawful currency of the Republic of Singapore.

" Transfer " means any direct or indirect sale, assignment, disposition, exchange, mortgage, pledge or grant of a security interest in, foreclosure or any other transfer of any portion of, or economic or voting interest in, an Interest, but shall not include any sale, assignment, disposition, exchange, mortgage, pledge or grant of a security interest in, foreclosure or any other transfer of any capital stock of a Member Parent.  A "Transfer" shall also include any sale, assignment or other transfer by a Member Parent of any direct or indirect interest in the Member that is its Affiliate.  When used as a verb, the term "Transfer" refers to entering into any transaction or series of transactions that results in a "Transfer."

" US$ " means the lawful currency of the United States of America.

" Work Plan " means a mutually agreed written schedule setting forth a description of a Project to be performed under this Agreement.

" Zeiss Supply Agreement " means the Supply Agreement dated as of 16 September 2005 entered into between Carl Zeiss Laser Optics GmbH and TCZ Switzerland (which has been novated to the Company by way of a deed of novation executed on or around the Effective Date), as amended, supplemented or otherwise modified from time to time.

(b)           Each of the following additional terms is defined in the Section set forth opposite such term:

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ARTICLE 2
REPRESENTATIONS AND WARRANTIES

Section 2.01.          Representations And Warranties.  (a) Cymer hereby represents and warrants that as of the date hereof (i) it is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada, (ii) it has the requisite power and authority to execute and deliver this Agreement and the other Joint Venture Documents and to fully perform its obligations hereunder and thereunder, (iii) the execution, delivery and performance of this Agreement and the other Joint Venture Documents have been duly authorized on the part of Cymer, (iv) it is not party to or affected by contractual or other legal obligations that would in any material respect interfere with its full performance of this Agreement or the other Joint Venture Documents, and (v) the individuals executing this Agreement on behalf of Cymer have the authority to do so.

(b)           Zeiss LOB hereby represents and warrants that (i) it is a limited liability company duly organized, validly existing and in good standing under the laws of Germany, (ii) it has the requisite power and authority to execute and deliver this Agreement and the other Joint Venture Documents and to fully perform its obligations hereunder and thereunder, (iii) the execution, delivery and performance of this Agreement and the other Joint Venture Documents have been duly authorized on the part of Zeiss LOB, (iv) it is not party to or affected by contractual or other legal obligations that would in any material respect interfere with its full performance of this Agreement or

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the other Joint Venture Documents, and (v) the individuals executing this Agreement on behalf of Zeiss LOB have the authority to do so.

(c)           Zeiss SMT hereby represents and warrants that (i) it is a stock corporation duly organized, validly existing and in good standing under the laws of Germany, (ii) it has the requisite power and authority to execute and deliver this Agreement and the other Joint Venture Documents to which it is a party and to fully perform its obligations hereunder and thereunder, (iii) the execution, delivery and performance of this Agreement and the other Joint Venture Documents to which it is a party have been duly authorized on the part of Zeiss SMT, (iv) it is not party to or affected by contractual or other legal obligations that would in any material respect interfere with its full performance of this Agreement or the other Joint Venture Documents to which it is a party, (v) the individuals executing this Agreement on behalf of Zeiss SMT have the authority to do so, and (vi) all right, title and interest in and to Foreground Technology (as defined in the Intellectual Property Agreement) conceived or reduced to practice by IMT or any Person under the control of IMT will be owned by SMT and that, upon execution and delivery of the IMT IP Side Letter by IMT, SMT will obtain all rights from IMT to fully perform its obligations under the Intellectual Property Agreement.

(d)           Notwithstanding any other provision contained in this Agreement, the Company shall be authorized to execute, deliver and perform this Agreement and the other Joint Venture Documents to which it is a party and all documents, agreements, certificates, or statements contemplated thereby or related thereto, exclusive of any future amendments, without any further act, vote or approval of any Member or any other Person.

ARTICLE 3
PURPOSES OF THE COMPANY

Section 3.01.          Name. The initial name of the Company shall be "TCZ Pte. Ltd.".  The business of the Company shall be conducted under such name or names as the Members may from time to time determine in accordance with the provisions hereof.

Section 3.02.          Purpose.  The purpose of the Company is to develop, market, sell, integrate and service the Products and to engage in related application development based on the Products (the " Business "), and to search for other business opportunities for process tools for the manufacture of flat panel displays, and to take actions reasonably related thereto, in each case as set forth in greater detail in the Business Plan as in effect from time to time.  If the Company identifies business opportunities for process tools for the manufacture of flat panel displays other than the Products and applications based on the Products (" Other FPD Business Opportunities "), the Company shall bring such Other FPD Business Opportunities to the attention of the Members, and the Members will discuss in good faith whether or not to expand the scope of the Business of the Company to pursue such Other FPD Business Opportunities.  For the avoidance of doubt, the "Business" shall not include the development, marketing, selling, integration or services of tools other than the Products, unless the Members so agree and amend this Agreement to expand the definition of the Business accordingly.

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Section 3.03.          Place of Business of the Company.  The principal place of business of the Company shall be located at such address as may be designated by the Board from time to time.

Section 3.04.          Registered Office; Registered Agent.  The address of the registered office of the Company in Singapore shall be as determined by the Board and as registered with ACRA.

Section 3.05.          Duration of the Company.  The Company shall continue until its dissolution in accordance with the provisions of Article 11.

Section 3.06.          Title to Company Property.  All property of the Company, whether real or personal, tangible or intangible, shall be deemed to be owned by the Company as an entity, and no Member, in its capacity as such, shall have any direct ownership interest in such property, except upon dissolution of the Company as set forth in Article 11.

Section 3.07.          Limited Liability.  Except as required by mandatory Singaporean law, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Member shall be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a Member.

ARTICLE 4
PERCENTAGE INTERESTS; CAPITAL CONTRIBUTIONS

Section 4.01.          Percentage Interests; Capital Contributions.  (a) The names and Percentage Interests of the Members shall be as follows:

(b)           The Percentage Interests shall not be subject to adjustment unless agreed by the Members, except as otherwise provided in Sections 6.03(c)(iii) or 11.03.

(c)           Other than the Members’ initial capital contributions and their Required Funding Contributions, no additional funding or capital contribution of the Members shall be required, except as the Members may unanimously agree.

Section 4.02.          Funding Commitments.  (a) The Members from time to time shall be obligated to provide funds to the Company, as provided in this Section 4.02, up to the amount specified in Section 4.02(a)(iii), which each such Member shall make by way of a contribution of capital, in all cases, by wire transfer of immediately available funds.

• • (i)            At the Additional Funding Date, Cymer shall contribute [ . . . * * *   . . .] (equivalent to [ . . . * * *   . . .]) in cash and Zeiss LOB shall contribute [ . . . * * *   . . .] (equivalent to [ . . . * * *   . . .]) in cash in respect of their required funding contributions for 2006.

*** Confidential Treatment Requested

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• •  

    (ii)           The amount and timing of subsequent required funding contributions under this Section 4.02 (" Required Funding Contributions ") shall be determined by the Chief Executive Officer consistent with the then current Business Plan as in effect from time to time, subject to the provisions of Section 4.02(a)(iii).  Each Member shall make each such funding contribution within ten business days of receipt of a Capital Call Notice from the Company.

    (iii)          No Member shall be required to contribute to the Company an amount for any Budget Year that exceeds its proportionate share (determined on the basis of its Percentage Interest) of the annual maximum required funding contribution amount (the " Annual Maximum Required Funding Contribution ") for such Budget Year (which shall cover the Company’s expected funding requirements for the period ending 15 months after the beginning of such Budget Year), set forth for such Budget Year in the then current Business Plan as may be in effect from time to time, or, absent an updated Business Plan containing an Annual Maximum Required Funding Contribution for such Budget Year, the amount determined as provided in Section 6.03(c).

(b)           If a Member fails to contribute its required portion of any Required Funding Contribution as and when required by this Agreement, the Company shall then notify the Members in writing of such default, specifying the default in reasonable detail, and if the defaulting Member shall not have cured such default within ten business days after receipt of such default notice, such failure shall be deemed a material breach of this Agreement and in addition to, and without prejudice to, any and all other remedies, the non-defaulting Member may treat such default as a "Triggering Event" pursuant to Section 11.02(a), except that the non-defaulting Member shall be treated as the Non-Triggering Party and the defaulting Member shall be treated as the Triggering Party thereunder.  The foregoing shall be exercisable by written notice from non-defaulting Member to the defaulting Member, given within 30 days after receipt of the default notice.

Section 4.03.          Other Matters.  (a) Except as otherwise provided in this Agreement, no Member shall demand or receive a return of its capital contributions without the consent of the other Member.  Under circumstances requiring a return of any capital contributions, no Member shall have the right to receive property other than cash, except as may be specifically provided herein.

(b)           No Member shall receive any interest, salary or drawing with respect to its capital contributions or for services rendered on behalf of the Company or otherwise in its capacity as a Member, except as otherwise contemplated by this Agreement.

ARTICLE 5
DISTRIBUTIONS

Section 5.01.          Distributions.  After the Effective Date, when, if and as approved by the Board or required by a Member pursuant to Section 5.02, the Company shall make available the Net Income of the Company for distribution to the Members (or to any Affiliate of a Member designated by such Member) in proportion to their Percentage Interests, and each Member agrees to vote its shares in favor of such a distribution; provided that Intellectual Property Rights owned or licensed by the Company shall be

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distributed only in accordance with the Intellectual Property Agreement or otherwise upon termination and dissolution of the Company in accordance with Article 11.  With respect to the amount to which each Member is entitled pursuant to the preceding sentence, such Member may elect, at its sole option, to (i) receive such amount in cash or, if so determined by the Board or (pursuant to Section 5.02) Member, property or (ii) treat such amount as part of such Member’s funding contribution for purposes of satisfying its Required Funding Contribution.

Section 5.02.          Member’s Right to Require Distribution.  Either Member shall have the right to require a resolution of the Board to be passed to make a distribution of the Net Income of the Company to the Members under Section 5.01, provided that the Company will have sufficient available funds on hand after the distribution to meet 110% of its reasonably foreseeable working capital requirements during the 18 months following the date of such distribution based on the more conservative of the (a) the financial projections in the then current Business Plan or (b) the most recent financial projections approved by the Board.

Section 5.03.          Amounts Withheld.  The Company is authorized to withhold from distributions to the Members and to pay over to any governmental or regulatory authorities any amounts which it reasonably determines may be required to be so withheld pursuant to any provisions of any other law (local or otherwise).  All amounts withheld pursuant to any provision of any tax law with respect to any distribution to any Member shall be treated as amounts distributed to such Member pursuant to this Article for all purposes under this Agreement.

Section 5.04.          Dissolution.  Upon dissolution and winding up of the Company, the Company shall make distributions in accordance with Article 11.

Section 5.05.          No Distributions in Violation of Law.  Notwithstanding any other provision contained in this Agreement, the Company shall not be required to make a distribution to any Member to the extent that such distribution would violate mandatory Singapore law.

ARTICLE 6
CORPORATE GOVERNANCE

Section 6.01.          Board of Directors.  (a) Except as otherwise provided in this Agreement, the business and affairs of the Company shall be managed by the Chief Executive Officer (the " Chief Executive Officer ") under the supervision of the board of directors (the " Board ").

(b)           Except as otherwise provided in Section 10.02(b), Section 11.03 and Section 11.04, the Board shall consist of five individuals (each a " Director ").  The Board shall consist of (X) two of such Directors which shall be designated by Cymer, (Y) a further two of such Directors which shall be designated by Zeiss LOB and (Z) the Chief Executive Officer.  Each Director (i) shall hold office until a successor shall have been duly designated or if earlier, such Director’s death, resignation or removal and (ii) except as otherwise provided in Section 11.03, may be removed only by the Member having designated such Director.  A Director shall not be entitled to appoint any person to act as his alternate.

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(c)           The following actions may not be taken by the Company or by the Chief Executive Officer acting on behalf of the Company without obtaining the approval of the Board as set forth herein:

• • (i)            adoption or amendment of a Business Plan and the product development process as described in Section 6.03(a)(iii);

    (ii)           entering into or making any loans or advances to, guarantees for the benefit of, or investments by the Company, in excess of US$100,000, other than trade credit in the ordinary course of business and investments in cash or cash equivalents in accordance with an investment policy adopted by the Board;

    (iii)          entering into any agreement or commitment (or series of related agreements or commitments) outside the ordinary course of business involving an aggregate value of more than US$100,000 per year;

    (iv)          entering into any transaction with any Member or Affiliate of any Member other than the transactions contemplated hereby and by the other Joint Venture Documents for which a final form has been agreed;

    (v)           any acquisition or disposition (in a single transaction or a series of related transactions) of any assets, business or operations outside the ordinary course of business in an aggregate value of more than US$100,000;

    (vi)          subject to the terms of the Intellectual Property Agreement, licensing the Company’s Intellectual Property outside the ordinary course of business or commencing or settling any litigation or claim involving the Company’s Intellectual Property; or

    (vii)         commencing or settling any material litigation or claim.

Section 6.02.          Officers.  (a) The Company will be managed by the Chief Executive Officer in accordance with the Company’s then current Business Plan as in effect from time to time.  Without limiting the generality of the foregoing, the Chief Executive Officer will be responsible for managing the following activities of the Company, in accordance with the Company’s then current Business Plan as in effect from time to time: (i) sales and marketing, (ii) application development, (iii) supply management, (iv) service and support to the Company’s customers, (v) systems integration, (vi) business development and (vii) accounting, finance, and general and administrative functions.  The Chief Executive Officer may delegate any of such authority to the other officers of the Company.  The other officers of the Company may include one or more vice presidents or other officers as the Chief Executive Officer may in his or her discretion determine.  One person may hold the offices and perform the duties of any two or more of said offices.  All of the officers of the Company shall report to the Chief Executive Officer of the Company.

(b)           The Member with the greater Percentage Interest shall have the right to appoint the Chief Executive Officer of the Company, provided that such appointment shall be subject to the approval of the other Member, which approval shall not be

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unreasonably withheld or delayed.  The Chief Executive Officer may be removed at any time by the Members.

(c)           The officers of the Company (other than the Chief Executive Officer) shall be appointed by the Chief Executive Officer to hold office for such term as the Chief Executive Officer may determine; provided that such appointments shall be subject to the approval of the Board, which approval shall not be unreasonably withheld or delayed.  Each such officer shall hold office until his or her successor is appointed, or until the earlier of his or her death, resignation or removal, and may be removed with or without cause at any time by the Chief Executive Officer.  The remuneration of each such officer shall be approved by the Board.  Each Member may suggest one or more candidates for such other officers, which suggestions the Chief Executive Officer shall consider in good faith, and, if the Chief Executive Officer rejects such suggestions, the Chief Executive Officer shall, if so requested, explain his or her reasons for the rejection.  Each Member shall, if so requested by the Chief Executive Officer, reasonably assist the Chief Executive Officer in locating candidates for positions with the Company within the ranks of the Member’s employees and in recruiting such candidates to join the Company.

(d)           Unless mutually agreed by the Members, commencing no later than ninety (90) days after the Effective Date, each officer of the Company (including the Chief Executive Officer), and each other employee of the Company that has or will be be transferred to the Company from either Cymer or Zeiss SMT or t