Common use of Excluded Companies Clause in Contracts

Excluded Companies. 4.13.1 Subject to Section 4.8, IM agrees that it will not, except with the written consent of ATMI, either: (a) disclose or license to any Competitor any ATMI Use Improvements for a period of [*] after Formal Disclosure, except that IM shall have the right to provide licenses of a broad or general scope that do not specifically mention or otherwise disclose the ATMI Use Improvement, or (b) disclose, license or sell any ATMI Improvement, other than an ATMI Use Improvement, that ATMI implements on its Equipment to any Excluded Company until [*] after such implementation. Notwithstanding the foregoing, if ATMI decides not to implement such ATMI Improvement within [*] of IM’s notice that it is available, IM shall be free to license or sell such ATMI Improvement without restriction. 4.13.2 IM agrees that it will not ship any Element to an Excluded Company prior to the Exclusivity Expiration Date for that Element. (An “Element” shall mean either the Integration Screening & Scale-up (I&S) System, Wets, or the Material & Device Screening (M&D) System, Wets.) The “Exclusivity Expiration Date” for that Element shall initially be the date [*] after the date of final acceptance for that Element, and shall be extended by an additional [*] for each accepted order that ATMI places for that Element before the Exclusivity Expiration Date. ATMI may also extend by [*] the Exclusivity Expiration Date for each Element that has not reached its Exclusivity Expiration Date by successfully brokering the sale of a complete Wets Workflow by IM to any materials company with which ATMI has a then-established working relationship (an “ATMI Materials Partner”). ATMI shall only be deemed to have successfully brokered the sale prior to the occurrence of the Exclusivity Expiration Date if the ATMI Materials Partner, in IM’s sole discretion, (a) is deemed credit-worthy by IM, (b) issues a purchase order acceptable to IM, and (c) signs an agreement for the purchase of the Equipment, Informatics Hardware, and the licenses to Informatics Software, Third Party Software, and/or HPC Site License that constitute a Wets Workflow, under terms and conditions that are substantially identical to those set forth in this Agreement (except for terms relating to exclusivity and volume discounts, and terms relating to the Alliance Agreement). Notwithstanding anything to the contrary herein, no Exclusivity Expiration Date shall be extended beyond [*]. 4.13.3 Nothing in this Agreement shall preclude IM from (a) shipping a Wets Workflow in whole or in part to a company that is not an Excluded Company at any time, or (b) shipping a Wets Workflow in whole or in part to an Excluded Company on or after the end of the Exclusivity Expiration Date or [*], whichever occurs earlier.