Royalty Payments to ATMI. IM shall pay royalties to ATMI of [*] percent [*] of the gross sales proceeds arising from ATMI’s successful brokering the sale of an element of the Wets Workflow to a Strategic Account, after the Addendum Effective Date, and on or before [*]. ATMI shall only be deemed to have successfully brokered the sale if the Strategic Account (a) issues a purchase order acceptable to IM, and (b) signs an agreement for the purchase of an element of the Wets Workflow, under terms and conditions that are substantially identical to those set forth in the Agreement (except for terms relating to exclusivity and volume discounts, and terms relating to the Alliance Agreement). No royalties under this Section 5.1 shall be payable except in connection with the sale of an element of a Wets Workflow to a Strategic Account through the efforts of ATMI. Moreover, in no event shall any royalty be payable to ATMI in connection with any sale by IM of a Wets Workflow element to IBM Corporation, except by mutual agreement of the parties; however, such agreement can be withheld by either party in its sole discretion. Furthermore, as used in this Section, “gross sales proceeds” shall consist of the sale price of the Wets Workflow element, excluding royalties payable by the Strategic Account to IM, and excluding the price of annual warranties and licenses after the first year, and less the following: (i) Third Party sales commissions, allowances, discounts, including cash discounts, rebates and returns all to the extent actually given in the trade by IM or its affiliates; (ii) sales, excise and similar taxes (including but not limited to any value added tax or withholding taxes) or duties; and (iii) insurance and freight.
Royalty Payments to ATMI. In addition to IM’s obligation to pay ATMI royalties for brokered sales of Wets Workflows to Strategic Accounts as set forth in Section 5.1 of the Addendum, the parties agree that IM’s royalty obligations shall apply to any Wets Workflow sale brokered by ATMI to one of its strategic material company partners. The second sentence of Section 5.1 of the Addendum is hereby amended to read as follows: “ATMI shall only be deemed to have successfully brokered the sale if the Strategic Account or ATMI strategic material company partner (a) issues a purchase order acceptable to IM in its reasonable discretion, and (b) signs an agreement for the purchase of an element of the Wets Workflow, under terms and conditions generally consistent with those set forth in the Agreement (except for terms relating to exclusivity and volume discounts, and terms relating to the Alliance Agreement).” This Section does not change any of the other terms of Section 5.1 of the Addendum which shall remain in full force and effect. [*] Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
