EXHIBIT 10.15
CONFIDENTIAL TREATMENT REQUESTED
CONFIDENTIAL TREATMENT REQUESTED: INFORMATION FOR WHICH CONFIDENTIAL TREATMENT
HAS BEEN REQUESTED IS OMITTED AND IS IDENTIFIED BY THREE ASTERISKS, AS FOLLOWS
"* * *." AN UNREDACTED VERSION OF THIS DOCUMENT HAS BEEN FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION.
ALLIANCE AGREEMENT
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This Alliance Agreement (this "Agreement") is entered into as of May
16, 2003 (the "Date of this Agreement") by and between Advanced Technology
Materials, Inc., a Delaware corporation on its own behalf and on behalf of its
Affiliates ("ATMI"), and Enthone Inc., a Delaware corporation on its own behalf
and on behalf of its Affiliates ("Enthone").
RECITALS
WHEREAS, the parties wish to enter into a strategic alliance relating
to certain products and technology for copper electro-chemical deposition,
including, without limitation, Enthone's Viaform (R) ECD product line, as well
as products and technology for other semiconductor front-end applications, and
to the furtherance of other opportunities between the parties generally, all as
more fully described herein (the "Alliance").
NOW THEREFORE in consideration of the promises and covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties do mutually agree as
follows:
ARTICLE I
DEFINITIONS
"AFFILIATE" shall mean, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with
such Person. For the purpose of the definition of Affiliate, the term "control"
(including the terms "controlling" and "controlled") means the possession,
direct or indirect, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership of voting
securities, by contract or otherwise.
"CAPPING" shall mean capping and/or barrier metallization based on
Enthone's Technology as described in Schedule I as well as any and all
developments, enhancements, modifications and improvements thereto.
"OTHER INTERCONNECT" shall mean any and all Materials, products and
services relating to damascene solutions for wafer level interconnect, excluding
Viaform ECD, that are owned, licensed or under development by Enthone as of the
Effective Date, or developed during the Term, whether by Enthone or jointly by
the parties, as well as any developments, enhancements, modifications and
improvements relating to any of the foregoing, and, in each case, related
services, provided, that, Other Interconnect shall not include Materials,
products, services, developments, enhancements, modifications and/or
improvements to the extent relating to semiconductor wafer bumping, wafer scale
packaging and redistribution, and applications on Schedule N-1.
"EFFECTIVE DATE" shall mean that date which is thirty (30) days after
the Date of this Agreement, unless otherwise agreed in writing by the parties.
"FRONT-END" shall mean any and all Materials, products and services
relating to semiconductor front-end applications (wafer processing that occurs
in a clean room), including, but not limited to, Other Interconnect that are
owned, licensed, or under development by Enthone as of the Effective Date, or
developed jointly by the parties during the Term, as well as any developments,
enhancements, modifications and improvements relating to any of the foregoing,
and, in each case, related services, provided, that, Front-End shall not include
Materials, products, services, developments, enhancements, modifications and/or
improvements to the extent relating to semiconductor wafer bumping, wafer scale
packaging and redistribution, and applications on Schedule N-1.
"INTELLECTUAL PROPERTY" OR "IP" shall mean, collectively, Patents,
Trade Secrets, Copyrights, and Trademarks whether arising under the laws of the
United States or any other state, country or jurisdiction, now or hereafter
existing. For purposes of this Agreement: (i) "Patents" shall mean all classes
or types of patents (including, without limitation, originals, divisions,
continuations, continuations-in-part, extensions or reissues), and applications
for these classes or types of patent rights in all countries of the world that
are owned or to the extent licensed by a Person or any of its Affiliates or the
extent to which such entities have the right; (ii) "Trade Secrets" shall mean
all right, title and interest in all trade secrets and trade secret rights
arising under common law, state law, federal law or laws of foreign countries,
now or hereafter existing; (iii) "Copyrights" shall mean all copyrights, and all
right, title and interest in all copyrights, copyright registrations and
applications for copyright registration, certificates of copyright and
copyrighted interests throughout the world, and all right, title, and interest
in related applications and registrations throughout the world, now or hereafter
existing; and (iv) "Trademarks" shall mean all right, title and interest in all
trademarks and trademark rights arising under common law, state law, federal law
or laws of foreign countries, now or hereafter existing.
"MATERIALS" shall mean any methods, methodologies, processes,
documentation, techniques, tools, designs, routines, materials, software,
information, procedures, samples, prototypes and data.
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"PERSON" shall mean any individual, firm, corporation, partnership,
joint venture, limited liability company, incorporated or unincorporated
association or organization, trust, government or any department or agency
thereof or other entity, and shall include any permitted transferee, successor
or assignee (by merger or otherwise) of such entity.
"PRODUCTS" shall mean Viaform ECD, Other Interconnect resulting from
joint development projects, Front-End resulting from joint development projects
and any other joint development products.
"TECHNOLOGY" shall mean Enthone's Intellectual Property and Materials
to the extent related to Viaform ECD and/or Front End, including, but not
limited to the Patents listed in Schedule I, as of the Effective Date or during
the Term of the Agreement, as well as any extensions, continuations, or
improvements related thereto.
"TERM" shall have the meaning set forth in Section 13.1 of this
Agreement.
"VIAFORM ECD" shall mean any and all of Enthone's Materials, products
and services relating to copper electro-chemical deposition for wafer level
interconnect that are currently marketed, sold or developed under the Viaform
trademark, including, but not limited to, those products, services and material
specifications listed on Schedule A attached hereto, and Capping, as well as any
and all developments, enhancements, modifications, and improvements thereto,
owned, licensed or under development by Enthone as of the Effective Date, or
developed during the Term whether by Enthone or jointly by the parties,
provided, that, Viaform ECD shall not include Materials, products, services,
developments, enhancements, modifications and/or improvements to the extent
relating to semiconductor wafer bumping, wafer scale packaging and
redistribution, and applications on Schedule N-1.
ARTICLE II
FEES AND GRANT OF LICENSE
2.1 Fees. ATMI shall make the following payments to Enthone on the
Effective Date by wire transfer of immediately available funds to an account
designated by Enthone:
(a) In full consideration, and in anticipation of the
delivery of the Materials listed on Schedule B by Enthone to ATMI as provided in
this Agreement, ATMI shall pay Enthone the amount of $* * * (the "Payment"). The
delivery of the Materials shall occur in accordance with the applicable
completion dates as set forth in Schedule B hereto for each of the items.
Following delivery of each line item to ATMI, ATMI shall provide Enthone with a
written acknowledgement in a form reasonably satisfactory to Enthone evidencing
ATMI's receipt thereof. Should a material breach occur related to Enthone's
obligations in this paragraph, then ATMI shall notify Enthone within 10 business
days of ATMI's discovery of such breach, and Enthone shall have 90 days to cure
such breach. If the material breach is not cured, Enthone will refund the
Payment, provided that nothing in this provision will or is intended to mitigate
Enthone's obligation to deliver all material aspects of the Materials listed on
Schedule B.
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(b) In consideration of the grant of the License (as
defined below) and other rights granted to ATMI under this Agreement, ATMI shall
pay to Enthone the amount of $* * * (the "License Fee"). Such License Fee shall
be subject to the provisions of Section 13.4 of this Agreement.
2.2 Grant of License.
(a) Enthone hereby grants to ATMI (i) during the Term an
exclusive, royalty-free, worldwide, non-transferable license and right to the
Technology to sell, distribute, and otherwise dispose of Products, subject to
the terms of this Agreement (the "Exclusive License"), and (ii) after the Term a
non-exclusive, royalty-free, worldwide, transferable (subject to Section
13.4(b)(iv)) license and right to the Technology to sell, distribute and
otherwise dispose of Products.
(b) Enthone hereby grants to ATMI a royalty-free,
worldwide, non-exclusive, and during the Term non-transferable (and after the
Term transferable) license and right to the Technology as follows:
(i) as related to Viaform ECD, ATMI shall have the
license and right to use and develop under the
Technology;
(ii) as related to non-Viaform ECD applications, ATMI
shall have license and right to make, use, and
develop under the Technology.
(c) Notwithstanding the foregoing, Enthone agrees that
during the Term Enthone or any of its Affiliates shall use the Technology solely
for (1) the purpose of furthering this Agreement (including its right to
undertake development projects not accepted by ATMI under Section 4.2(c) of this
Agreement), or (2) the purpose of developing non-competitive products in
applications other than Viaform ECD or Front-End.
(d) Notwithstanding the foregoing, ATMI agrees that
during the Term ATMI or any of its Affiliates shall use the Technology solely
for (1) the purpose of furthering this Agreement (including its right to
undertake development projects not accepted by Enthone under Section 4.2(b) of
this Agreement) or (2) the purpose of developing non-competitive products in
applications other than Viaform ECD or Front-End, provided that this Agreement
will not and is not intended to place any restrictions or encumbrances on any of
the Products (including the use thereof) after they are sold or otherwise
disposed of. This provision is not intended to mitigate Enthone's warranty
obligations and limitations under Section 3.4.
(e) The licenses granted under this Section 2.2(a) and
(b) (collectively the "License") shall be subject to Section 4.2(c) in the event
ATMI does not accept an Enthone Project as defined in Section 4.2 (c) and
Section 3.1(d) in the event a Triggering Event occurs.
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ARTICLE III
MANUFACTURE AND SALE OF PRODUCTS
3.1 Manufacturing.
(a) Viaform ECD.
(i) Exclusive Manufacturing. Subject to the provisions of
Sections 3.1(a)(iii) and 3.1(c), Enthone shall
manufacture Viaform ECD in sufficient quantities and
in conformity with specifications accepted by Enthone
to meet ATMI's requirements, based on the forecasts
provided by ATMI pursuant to Section 3.1(c) hereof.
(ii) Resources. All manufacturing of Viaform ECD by
Enthone will be performed at Enthone's West Haven,
Connecticut facility, the Meltex facility located at
Saitama City, Japan, or such other mutually agreed to
facility of Enthone or any Affiliate of Enthone at
which Viaform ECD is manufactured from time to time,
such agreement not to be unreasonably withheld or
delayed. As of the date of this Agreement, Enthone is
in the process of adding additional manufacturing
capacity and second source disaster recovery
capacity, which shall be qualified as soon as
reasonably required by one or more customers.
(iii) Second Source. Subject to Section 3.1(a)(iv) and the
Triggering Events listed in Section 3.1(d), Enthone
may utilize ATMI or any third party mutually approved
by the parties (such approval not to be unreasonably
withheld or delayed) to be a second source
manufacturer to manufacture ATMI's additional
capacity demands for Viaform ECD.
(iv) Additional Capacity. In the event that Enthone
intends to use a third party to manufacture demands
for Viaform ECD ("Additional Capacity"), Enthone will
first offer ATMI the opportunity to manufacture the
Additional Capacity before offering the same to any
third party; provided, that, this opportunity is
based on the assumption that ATMI's manufacturing
costs shall be no greater than those incurred by
Enthone for the same or similar material. ATMI shall
have ten (10) days from the date of such offer by
Enthone to accept such offer and if ATMI fails to so
accept such offer within such ten (10) day period,
Enthone may thereafter use a third party to
manufacture the Additional Capacity with the prior
written consent of ATMI which consent shall not be
unreasonably withheld or delayed.
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(b) Other Interconnect and Front-End. The parties shall
negotiate in good faith for the manufacturing rights related to Products other
than Viaform ECD. For any Products manufactured by Enthone and distributed by
ATMI, Section 3.1(c) shall apply. If the parties are unable to agree on which
party shall manufacture any such Product developed in accordance with Section 4
of this Agreement, the party with the lowest cost of manufacture shall be
awarded the right to manufacture. For any Products manufactured exclusively by
either party, the manufacturing party shall give the other party a right of
first refusal with regard to any such manufacturing prior to using a third
party, and the second source provision under Section 3.1(a) and the loss of
manufacture rights provision under Section 3.1(d) shall apply.
(c) Details of Manufacture.
(i) Forecasts. On or prior to the Effective Date, ATMI
will provide to Enthone a forecast of ATMI's
quarterly requirements for Products during the period
commencing on the Effective Date and ending on
December 31, 2003. Thereafter, ATMI will provide to
Enthone annual forecasts of ATMI's quarterly
requirements for Products during the upcoming
calendar year by the last day of December of each
year during which this Agreement is in effect. In
addition, ATMI will provide to Enthone three (3)
month rolling forecasts of ATMI's requirements for
Products within five (5) days of the end of each
month. All forecasts are for the convenience of the
parties and shall not be binding on ATMI, and ATMI
shall have no liability for the failure to purchase
such forecasted quantity of Products provided,
however, that ATMI meets the requirements set forth
on Schedule L hereto. Schedule L hereto sets forth
the ordering requirements, lead times, shipping
terms, notice and cure provisions, inventory
requirements and related information with respect to
the manufacture and purchase of Products. Enthone
shall maintain sufficient component inventory to meet
ATMI's forecasted demand within the applicable lead
time. None of Enthone or any of its Affiliates shall
have any responsibility or other liability for any
delays in receipt of Products to the extent such
responsibility or liability arose as a result of
ATMI's manufacture thereof or failure to maintain
required inventory levels, provided, that ATMI's
failure is not the result of Enthone's act or failure
to act in accordance with its obligations under the
Agreement.
(ii) Purchase Orders. ATMI shall submit purchase orders to
Enthone, which shall include the quantities of and
relevant specifications for Products ordered. The
terms and conditions of this Agreement shall apply to
all purchases of Products from Enthone by ATMI under
this Agreement. Attached as Schedule C are ATMI's
standard terms and conditions as of the date of the
Agreement which ATMI shall provide with the sale or
distribution of Products by ATMI, subject to such
changes ATMI may make or otherwise agree to from time
to time in its reasonable discretion. If ATMI
materially revises its standard terms and conditions,
it shall provide a written copy to Enthone at least
30 days prior to commercial use thereof. Any terms
and conditions set forth in any purchase order,
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acknowledgment or invoice which are in addition to or
differ from those set forth in this Agreement shall
not apply as between the parties unless agreed to in
writing by both parties. ATMI may modify the terms in
any such purchase order (including, but not limited
to, quantity, specifications and shipment dates),
without charge or liability, upon written notice to
Enthone if such notice is given outside of the
applicable Product lead time as specified on Schedule
L attached hereto. Enthone may, in its reasonable
discretion, charge ATMI a fee to cover additional
costs incurred by Enthone as a direct result of such
purchase order modification if such notice is given
within the applicable standard Product lead time as
specified on Schedule L attached hereto. In addition,
and irrespective of the period of notice, the parties
may agree in writing to modify the terms in any such
purchase order (including, but not limited to,
quantity, specifications and shipment dates), without
charge or liability.
(iii) Specifications. Manufacture of Products shall be in
conformity with the applicable specifications
therefor. ATMI will use its commercially reasonable
efforts to sell the customer Viaform ECD standard
product. The price for Viaform ECD non-standard
product shall be determined in accordance with
Section 3.2. ATMI will identify Products by Enthone
JDE part numbers and identify customer specific
requirements separately.
(iv) Audit Rights. ATMI and its designee shall have the
right, upon reasonable prior written notice during
normal business hours (i) to inspect all facilities
utilized by Enthone in connection with the
manufacture or storage of Products and to examine
Products in process of manufacture and testing; and
(ii) to examine and copy Enthone's books and records
relating to its performance of its obligations
hereunder, including, without limitation, all
inventory records, purchasing/accounts payable
records, work orders, routing sheets and
manufacturing cost records; provided, that ATMI shall
not be entitled to examine or copy any of books,
records or other information of Enthone that
identifies or discloses any of Enthone's suppliers
except to the extent required to enable ATMI to
manufacture Products upon a Triggering Event. All
such facility inspections shall be undertaken in a
manner that results in the least possible
interference with Enthone's business operations at
the facility being inspected. All information
examined, copied or otherwise learned by ATMI in its
exercise of its audit rights hereunder shall be
deemed Confidential Information (as hereinafter
defined). If a discrepancy is discovered, the other
party shall make payment within thirty (30) days, and
if the discrepancy exceeds five percent (5%) in favor
of the party being audited, the party being audited
shall pay the reasonable cost of the audit.
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(d) Loss of Manufacture Rights.
(i) Triggering Events. Notwithstanding any provision of
this Agreement to the contrary, the non-manufacturing
party shall have the immediate right and license,
upon a Triggering Event, as defined below, to
manufacture Products as specified below. Upon the
occurrence of a Triggering Event, such manufacturing
party (the "Manufacturer") shall provide the other
party with the most recent version and any updates of
an applicable "Product Manufacture Package" which
shall include any and all Materials as may be
required by such other party to enable that party's
manufacture of the Product including, but not be
limited to, manufacturing and characterization SOPs,
process flow diagrams, raw material sources, xxxx of
materials, blueprint and as-builts for manufacturing
plant and equipment. For the purposes of this
Agreement, a "Triggering Event" shall occur if any of
the following occur and are not cured as provided in
(d)(ii) below:
(1) * * *
(2) * * *
(3) * * *
(4) * * *
(ii) Cure Provisions. The other party shall notify
Manufacturer in writing of any Triggering Event.
Manufacturer shall have five (5) days (the "Submittal
Period") from the date of its receipt of such notice
to submit to the other party a corrective action plan
intended to cause such Triggering Event to be
remedied within sixty (60) days (or such longer
period agreed to in writing by the parties) of the
end of the Submittal Period (the "Remedy Period"). In
the event that the Triggering Event is not cured
within the Remedy Period, both parties shall have the
non-exclusive right for the remainder of the Term to
manufacture the applicable Products that are the
subject of the Triggering Event. Notwithstanding the
immediately preceding sentence, if the Triggering
Event involves Enthone's manufacture of Viaform ECD
and Enthone cures the Triggering Event after the
expiration of the Remedy Period, Enthone shall, upon
written notice to ATMI, again have the exclusive
right to manufacture Viaform ECD, provided, that,
Manufacturer shall establish, with reasonable
commercial certainty, that the circumstances
resulting in such Triggering Event no longer exist or
have been cured and will not continue to limit
Manufacturer's ability to perform in accordance with
its obligations under this Agreement. Subject to the
preceding sentence, and in the event that Enthone
elects to again have the exclusive right to
manufacture Viaform ECD, Enthone shall pay to ATMI
ATMI's reasonable, direct monetary investment made by
ATMI in order to assume the manufacture of Viaform
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ECD pursuant to this Section 3.1(d)(ii). In the event
that Enthone notifies ATMI in writing that Enthone is
unable to cure a Triggering Event such that it will
again have the exclusive right to manufacture Viaform
ECD, the parties agree, with respect to Viaform ECD
manufactured by ATMI hereunder, to an equal margin
sharing formula of 50/50 for such Viaform ECD in
accordance with the last sentence of Section 3.2(b)
hereof. In the event the non-manufacturing party has
established the capability to manufacture Viaform ECD
as the result of a prior Triggering Event, and the
Manufacturer cannot cure a subsequent Triggering
Event within ten (10) days following the Submittal
Period, the non-manufacturing party shall have the
right to manufacture Viaform ECD solely for the
purpose of addressing the specific customer
requirements created by the Triggering Event, but no
other rights shall be granted to the
non-manufacturing party except pursuant to the prior
provisions of this Section 3.1(d).
3.2 Pricing.
(a) Viaform ECD. The provisions of Section 3.2(a) and (b)
shall apply to Viaform ECD excluding Capping, and pricing for Capping shall be
governed by Section 3.2(c). Enthone agrees to sell Viaform ECD to ATMI pursuant
to Section 3.3 hereof at * * *.
(b) Viaform ECD Non-Standard Product. * * *
(c) Other Interconnect and Front-End. * * *
(d) Product Pricing. * * *
3.3 Sale.
(a) Distribution. The parties agree that ATMI shall use
commercially reasonable efforts to (i) diligently promote, market, distribute,
sell and commercialize the Products on commercially reasonable terms, subject to
the provisions of this Agreement, and (ii) fulfill its obligations under Section
3.3(b) of this Agreement. In furtherance of this objective, ATMI shall:
(i) Comply with all laws, ordinances, rules and
regulations (including, without limitation, those
pertaining to health, sanitation, fair trade or
consumer protection) enacted by, obtain all licenses
and permits required by, and pay all taxes, fees,
charges, and assessments imposed by, any governmental
authority in connection with its operations
hereunder.
(ii) Use reasonable efforts to maintain the good name,
reputation and prestige of Viaform ECD, the
Technology and Enthone.
(iii) Accept Viaform ECD warranty returns from customers in
accordance with industry standard practices within
the semiconductor industry; provided, that, ATMI's
obligations hereunder shall be subject to Enthone's
obligations in accordance with Section 3.4 below.
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(iv) Perform such other services and supply such other
information related to ATMI's services or operations
hereunder as Enthone may from time to time reasonably
request.
(v) Any representation or warranty, or alteration of
Products made by ATMI which is not in accordance with
this Agreement or authorization from Enthone, shall
be the sole responsibility of ATMI.
(b) Infrastructure. ATMI agrees that it shall use its
commercially reasonable efforts to take the actions, as specified on Schedule D
hereto, related to development of an infrastructure to distribute, sell and
commercialize the Products.
(c) Audit Rights. Enthone and its designee shall have the
right, upon reasonable prior written notice during normal business hours (i) to
inspect all facilities utilized by ATMI in connection with the manufacture or
storage of Products and to examine Products in process of manufacture and
testing; and (ii) to examine and copy ATMI's books and records relating to its
performance of its obligations hereunder, including, without limitation, all
inventory records, purchasing/accounts payable records, work orders, routing
sheets and manufacturing cost records, provided, that Enthone shall not be
entitled to examine or copy any books, records or other information of ATMI that
identifies or discloses any of ATMI's suppliers except to the extent required to
enable Enthone to manufacture Products upon a Triggering Event. All such
facility inspections shall be undertaken in a manner that results in the least
possible interference with ATMI's business operations at the facility being
inspected. All information examined, copied or otherwise learned by Enthone in
its exercise of its audit rights hereunder shall be deemed Confidential
Information (as hereinafter defined). If a discrepancy is discovered, the other
party shall make payment within thirty (30) days, and if the discrepancy exceeds
five percent (5%) in favor of the party being audited, the party being audited
shall pay the reasonable cost of the audit.
3.4 Warranties and Remedies.
(a) Scope of Warranty.
(i) ENTHONE WARRANTS TO ATMI THAT PRODUCTS DELIVERED
HEREUNDER ARE FREE FROM DEFECTS IN MATERIAL AND
WORKMANSHIP AND MEET THE APPLICABLE SPECIFICATIONS
THEREFOR. ENTHONE MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, AS TO THE MERCHANTABILITY OR THE FITNESS FOR
ANY PARTICULAR USE OF ANY PRODUCTS SOLD HEREUNDER,
ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
(ii) In the event any Viaform ECD or other Product
manufactured by Enthone, as applicable, fails to meet
the warranty set forth in Section 3.4(a) hereof, ATMI
may, in its sole discretion and option, (i) require
Enthone, at its sole cost and expense, to supply ATMI
with a replacement, or (ii) return such
non-conforming Products at Enthone's expense and
recover from Enthone the order price thereof.
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(iii) ATMI acknowledges that except as expressly set forth
in Section 3.4(a) hereof, neither Enthone nor any
other person has made, and ATMI has not relied upon,
any warranty or representation, express or implied,
with respect to Viaform ECD or other Product, as
applicable.
ARTICLE IV
DEVELOPMENTS
4.1 Generally. In addition to Enthone's obligations under Article
V hereof, Enthone agrees that it shall use its commercially reasonable efforts
to develop, manufacture and improve the Technology and Products. Without
limiting the generality of the foregoing, Enthone agrees that it shall use its
commercially reasonable efforts to take the actions, as specified on Schedule D
hereto with regards to its development, manufacture and improvement of the
Technology and Products and supply of Products.
4.2 Development Obligations
(a) Generally.
(i) Each of the parties agrees to assume its respective
development obligations listed in Sections 4.2(b) and
(c) below. If the parties agree to enter into a
development project with each other, such joint
development project shall be conducted pursuant to
the terms of a statement of work mutually agreed-upon
by the parties at the time of such agreement (a
"Statement of Work"). Such Statement of Work shall be
in the form of Exhibit A hereto and shall include,
among other things, the specific details regarding
the responsibilities, rights and obligations of each
of the parties, and events constituting a default
under the Statement of Work. The parties intend that
in the event of any conflict between the terms of
this Agreement and the Statement of Work, the terms
of the applicable Statement of Work shall apply to
such development project.
(ii) Neither party will enter into any other agreements or
arrangements relating to such joint development
project or which may conflict or otherwise impede
such party's ability to perform its obligations under
the applicable Statement of Work; provided that this
restriction will not and is not intended to affect
any other agreements or arrangements between ATMI and
Enthone or any of the Enthone or ATMI projects,
products or agreements set forth on Schedule M and/or
Schedule N hereto (the "Existing Projects"), which
Existing Projects are not joint development projects
and to which the other party shall have no right or
interest. The parties acknowledge and agree that each
of Enthone and ATMI and their respective Affiliates
may pursue each of the Existing Projects alone or
with any third parties without being in violation of
this Agreement and without notice to the other party
or the other party's consent or participation in any
form.
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(iii) The parties intend that the costs related to any such
joint development project shall be shared equally by
the parties.
(iv) If either party defaults in the performance of any
material obligation under the applicable Statement of
Work, and such failure has not been cured by the
defaulting party during the applicable notice period,
unless the non-defaulting party agrees otherwise in
writing:
(1) All right, title and interest in
any and all Intellectual Property,
Materials, Products or other developments
made under such development project shall
automatically transfer to the non-defaulting
party, and
(2) If any Intellectual Property,
Materials, Products or other developments
used under such development project are
contributed by the defaulting party, a
non-exclusive license therein shall
automatically transfer to the non-defaulting
party.
In addition, the defaulting party shall be prohibited
from pursuing such development project or any
development competitive thereto for a period of two
(2) years.
(b) ATMI Development Projects. ATMI will offer in writing
to work jointly with Enthone on any materials for electro-chemical deposition
for wafer-level interconnect and any further developments, enhancements,
modifications and improvements related to any development projects accepted
under this Section 4.2(b) (each an "ATMI Project"). Enthone shall have thirty
(30) days after receipt of ATMI's written offer to accept such offer on the
terms set forth in this Section 4.2(b), unless otherwise agreed to in writing by
the parties. If Enthone accepts such ATMI Project, the parties shall conduct
such joint development pursuant to the terms of a Statement of Work mutually
agreed-upon by the parties. If Enthone does not accept such ATMI Project, ATMI
may undertake whatever steps it deems appropriate with regard to such ATMI
Project, including, without limitation, pursuing the development project by
itself or in conjunction with a third party and shall have the right to develop,
manufacture, use, sell, license, transfer, or otherwise deal with such
development or product as ATMI deems advisable in its sole and absolute
discretion by giving written notice to Enthone, but without any obligation to
account to Enthone therefor, provided that ATMI shall not engage any third party
with regard to any ATMI Project on terms more favorable than those offered to
Enthone
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(c) Enthone Development Projects. Enthone will offer in
writing to work jointly with ATMI on any development or product project relating
to Other Interconnect, Front-End and Capping and any further developments,
enhancements, modifications and improvements related to any development projects
accepted under this Section 4.2(c) (each an "Enthone Project"). ATMI shall have
thirty (30) days after receipt of Enthone's written offer to accept such offer
on the terms set forth in this Section 4.2(c), unless otherwise agreed to in
writing by the parties. If ATMI accepts such Enthone Project, the parties shall
conduct such joint development pursuant to the terms of a Statement of Work
mutually agreed-upon by the parties. If ATMI does not accept such Enthone
Project, Enthone may undertake whatever steps it deems appropriate with regard
to such Enthone Project, including, without limitation, pursuing the development
project by itself or in conjunction with a third party and shall have the right
to develop, manufacture, use, sell, license, transfer, or otherwise deal with
such development or product as Enthone deems advisable in its sole and absolute
discretion by giving written notice to ATMI, but without any obligation to
account to ATMI therefor, provided that Enthone shall not engage any third party
with regard to any Enthone Project on terms more favorable than those offered to
ATMI.
4.3 Initial Development Projects. The parties agree that the
initial development projects relating to the Alliance, and the obligations of
each party relating thereto, shall be as set forth on Schedule E hereto. Each
party will use its commercially reasonable efforts to fulfill its obligations
relating to such initial development projects in accordance with the applicable
Statement of Work.
ARTICLE V
SUPPORT AND R&D DEVELOPMENT
5.1 Application Support. The Parties agree that the respective
obligations regarding Product application support and research and development
shall be as follows:
(a) Initial Obligations. During the first two years after
the Effective Date (the "Application Support Period"), Enthone will provide ATMI
and its customers with application support relating to the Technology and
Products which application support shall include, but not be limited to, the
following:
- On-site Process Assistance
- Troubleshooting
- Bath Characterization
- Optimization of Component Concentration
- Optimization of Bath Lifetime
- General On-site Process Development
- Product enhancements, modifications, improvements and
customization
The application and technical support budget for Enthone for the first year of
the Application Support Period shall be $* * * of which ATMI shall pay Enthone
the lesser of: (a) * * *% of Enthone's costs for such application support, or
(b) $* * *. The parties acknowledge that the application support budget of $* *
* is based on the assumption that the application support needs of ATMI and its
customers for the first year after the Effective Date will not increase
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relative to such needs in the year prior to the Effective Date. The parties
agree to negotiate in good faith any necessary application support budget
increases resulting from increased customer demand for Viaform ECD. During the
second year of the Application Support Period, the parties will agree to a
mutually acceptable budget and will equally share all costs incurred based on
such budget in connection with such support. In the event that the parties are
unable to agree upon a mutually acceptable budget for the second year (and
beyond to the extent contemplated by Section 5.1(b) or (d)) of the Application
Support Period, the budget for the immediately preceding year of the Application
Support Period as set forth above shall apply during such period.
(b) Transition of Support Obligations. The parties agree
that, following the second anniversary of the Effective Date, ATMI will provide
all application support not based on research and development ("R&D") to
customers, subject to Enthone's information transfer obligations under Section
5.1(c) and other support and development obligations under this Agreement.
Enthone will have no further application support obligations to either ATMI or
its customers as of the second anniversary. However, Enthone agrees to use its
commercially reasonable efforts to provide such application support to ATMI and
its customers, at the sole cost and expense of ATMI (subject to Section 5.1(c)),
in relation to the Products and Technology as ATMI shall reasonably request
after the second anniversary of the Effective Date.
(c) Information Transfer. In partial consideration of the
License Fee, Enthone shall transfer to ATMI during the Application Support
Period all information, including Materials (other than those listed on Schedule
B) and know-how relating to the Products and Technology along with any training
as may be necessary to enable ATMI to provide application support and related
development, modification and customization activities, and such other
application support, relating to the Products and Technology internally and to
its customers, provided that no such customer shall be provided with any
information regarding the Products and/or Technology unless that customer has
entered into a confidentiality/non-disclosure agreement which reasonably
restricts disclosure of such information. The information transferred shall
include, but not be limited to, the information listed on Schedule F hereto and
shall be transferred in accordance with the timeframes specified therein.
(d) Ongoing Support Obligations. In the event Enthone
fails to meet its obligations with regard to such information transfer, ATMI may
extend the Application Support Period such that Enthone shall, at its own
expense, continue to provide ATMI and its customers with application support
relating to the Technology and Products until such information transfer is
successfully completed.
(e) ATMI Ongoing Support. Notwithstanding any provision
to the contrary, nothing in this Agreement will or is intended to preclude or
otherwise restrict ATMI's provision of application support and R&D-based support
relating to the Products and Technology, provided that any such support provided
by ATMI will be at the sole cost of ATMI but will not satisfy or otherwise
mitigate Enthone's obligation to provide such support as required under this
Agreement.
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5.2 Research & Development Support. At all times during the Term
of this Agreement, Enthone shall provide commercially reasonable R&D-based
technical support relating to the Products and Technology at its own cost, which
shall include maintenance of the Products including resolutions of any major
technical issues such as defects as well as developments, enhancements and
improvements. R&D support shall include, but not be limited to the following:
- Characterization of bath contribution to defect
formation, and modification as necessary to reduce or
eliminate defects
- Modification of bath formulation to meet specific
customer performance requirements
- Modification of bath formulation to support smaller
device features, higher aspect ratios, within wafer
uniformity
- Modification of bath formulation to meet future
regulatory requirements
- Modification of bath formulation as required to
address raw material shortages or other manufacturing
issues.
5.3 OEM Customer Requests. The parties further agree that during
the Term of this Agreement, Enthone may provide further R&D support to
semiconductor original equipment manufacturers including shipment of
non-commercialized R&D materials, provided that any revenue derived from any
such original equipment or tool manufacturer customer shall at all times be
governed by the provisions of Section 3.2 of this Agreement.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF ATMI
ATMI represents and warrants to Enthone as follows as of the Effective
Date that:
6.1 Organization.
ATMI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
6.2 Authorization; Binding Agreement.
ATMI has the requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by ATMI have been duly and validly authorized
by all necessary corporate action on the part of ATMI, and no other corporate
action on the part of ATMI is necessary to authorize the execution and delivery
of this Agreement or to consummate the transactions contemplated hereby by ATMI.
This Agreement has been duly and validly executed and delivered by ATMI. This
Agreement constitutes a legal, valid and binding agreement of ATMI, enforceable
against ATMI in accordance with its terms, subject to applicable bankruptcy,
insolvency, reorganization, moratorium, and similar laws affecting creditors'
rights generally and to general principles of equity, regardless of whether
enforcement is sought in a proceeding at law or in equity.
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6.3 Rights.
ATMI has the right to grant to Enthone the rights purported to be
granted by or pursuant to this Agreement and has all other rights necessary for
the performance of its obligations under this Agreement without violating any
rights of any other party.
6.4 No Conflict.
ATMI is not under any obligation or restriction nor will it assume any
such obligation or restriction that does or would in any way materially
interfere or conflict with its obligations or the rights and licenses granted to
Enthone hereunder.
6.5 Survival.
All representations and warranties contained in this Article VI, or in
Article VII hereof, shall survive the execution and delivery of this Agreement
for a period of one (1) year following the Effective Date.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF ENTHONE
Enthone represents and warrants to ATMI as follows as of the Effective
Date that:
7.1 Organization.
Enthone is a corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware.
7.2 Authorization; Binding Agreement.
Enthone has the requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby by Enthone have been duly and validly
authorized by all necessary corporate action on the part of Enthone, and no
other corporate action on the part of Enthone is necessary to authorize the
execution and delivery of this Agreement or to consummate the transactions
contemplated hereby by Enthone. This Agreement has been duly and validly
executed and delivered by Enthone. This Agreement constitutes a legal, valid and
binding agreement of Enthone, enforceable against Enthone in accordance with its
terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium,
and similar laws affecting creditors' rights generally and to general principles
of equity, regardless of whether enforcement is sought in a proceeding at law or
in equity.
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7.3 Rights.
Enthone has the right to grant to ATMI the rights purported to be
granted by or pursuant to this Agreement and has all other rights necessary for
the performance of its obligations under this Agreement without violating any
rights of any other party.
7.4 No Conflict.
Except as set forth on Schedule G-1 hereto, Enthone is not under any
obligation or restriction, nor will it assume any such obligation or restriction
that does or would in any way materially interfere or conflict with its
obligations or the rights and licenses granted to ATMI hereunder.
7.5 Patents.
Schedule I hereto sets forth a complete and correct list of all patents
and patent applications owned or licensed by Enthone worldwide and which claim
or relate to the Products as of the Effective Date.
7.6 Rights to Technology.
To its knowledge, Enthone has good, valid and marketable title to the
Technology and Materials related to Viaform ECD, free and clear of encumbrances
or liabilities. Other than as specifically stated in this Agreement and the
Schedules, no third party, other than ATMI, has any rights to the Technology or
Viaform ECD. For purposes of this Section 7.6 and Section 7.7 below, "knowledge"
shall be based on Enthone's reasonable investigation and diligence.
7.7 Intellectual Property.
To Enthone's knowledge, none of the Technology or Materials related to
Viaform ECD, nor the manufacture, use or sale of Viaform ECD infringes upon any
third party Intellectual Property, non-disclosure, or other contractual rights.
As of the Effective Date Viaform ECD is not infringing, misappropriating or
making any unlawful or unauthorized use of any third party Intellectual Property
owned, licensed or used by any other Person, and none of Viaform ECD, Technology
or Materials related to Viaform ECD have at any time infringed, misappropriated
or made any unlawful or unauthorized use of any third party Intellectual
Property owned, licensed or used by any other Person. Enthone has never received
any notice or other communication (in writing or otherwise) of any actual or
alleged infringement, misappropriation or unlawful or unauthorized use of, any
third party Intellectual Property related to Viaform ECD owned, licensed or used
by any other Person. Except as set forth on Schedule G-2 hereto, Enthone has
never received any notice or other communication (in writing or otherwise) of
any possible or potential infringement, misappropriation or unlawful or
unauthorized use of, any third party Intellectual Property related to Viaform
ECD owned, licensed or used by any other Person.
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7.8 Materials.
Schedule B is an accurate and complete list of the Materials related to
the Technology needed by ATMI to enable ATMI to use and sell Viaform ECD in
accordance with the specifications and intended applications.
7.9 Viaform ECD Pricing.
Enthone's list prices for Viaform ECD are set forth in Schedule A
hereto, and Schedule A also completely and accurately reflects the actual
selling prices for the year immediately prior to the date of this Agreement,
including any special discounts granted to customers.
7.10 Competitive Interests.
Schedule O is an accurate and complete list of the Competitive
Interests as defined under Section 8.1(a) of this Agreement.
ARTICLE VIII
RESTRICTIVE COVENANTS
8.1 Noncompetition.
(a) Technology and Products. During the Term (the
"Restrictive Period"), except in furtherance of the Alliance, neither party nor
any of its Affiliates shall, directly or indirectly, anywhere in the world (the
"Territory") (i) have any financial interest greater than a 50% equity interest
in, or aid or assist anyone else in the conduct of any business that develops,
manufactures, sells, commercializes or exploits Materials, products or services
that compete with the Products commercialized by the parties except as expressly
permitted under Sections 4.2(b) or 4.2(c), (ii) on its own develop, manufacture,
sell, commercialize or exploit Materials, products or services that compete with
the Products commercialized by the parties except as expressly permitted under
Sections 4.2(b) or 4.2(c), or (iii) as of the Effective Date, take any
additional actions which would cause it to own, manage, operate, control or
participate in the ownership, management, operation or control of, or be
connected as an officer, employee, partner, director or otherwise with, or have
any financial interest greater than a 5% equity interest in, or aid or assist
anyone else in the conduct of any business that develops, manufactures, sells,
commercializes or exploits Materials, products or services that compete with the
Products commercialized by the parties except as expressly permitted under
Sections 4.2(b) or 4.2(c). Schedule O sets forth a list of all entities,
ventures and other interests, as of the Effective Date, which Enthone owns,
manages, operates, controls or in which Enthone participates in the ownership,
management, operation or control of, or to which Enthone is connected as an
officer, employee, partner, director or otherwise, or in which Enthone has a
financial interest greater than a 5% equity interest, or otherwise aids or
assists in the conduct of any business that develops, manufactures, sells,
commercializes or exploits Materials, products or services that compete with the
Products commercialized by the parties except as expressly permitted under
Sections 4.2(b) or 4.2(c) (the "Competitive Interests"). Provided that nothing
in this Agreement is intended to preclude or otherwise restrict: (i) a party's
or any of its respective Affiliate's ability to make, use,
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sell and otherwise exploit its products and services in existence as of the
Effective Date or any developments, enhancements, modifications and improvements
thereto, or (ii) a party's or any of its respective Affiliate's ability to
undertake and pursue any of the Existing Projects.
(b) The parties hereto acknowledge and agree that any
breach of any restrictive covenant contained in this Section 8.1 would cause
irreparable injury to the non-breaching party and that the remedy at law for any
such breach would be inadequate, and the parties agree and consent that, in
addition to any other available remedy, temporary and permanent injunctive
relief that may be granted in any proceeding which may be brought by a party to
enforce such restrictive covenant without necessity of proof that any other
remedy at law is inadequate.
(c) The parties intend that the covenants of this Section
8.1 shall be deemed to be a series of separate covenants, one for each county or
province of each and every state, territory or jurisdiction of each country
included within the Territory and one for each month of the Restrictive Period.
If, in any judicial proceeding, a court shall refuse to enforce any of such
covenants, then such unenforceable covenants shall be deemed eliminated from the
provisions hereof for the purpose of such proceeding to the extent necessary to
permit the remaining separate covenants to be enforced in such proceeding. If,
in any judicial proceeding, a court shall refuse to enforce any one or more of
such separate covenants because the total time thereof is deemed to be excessive
or unreasonable, then it is the intent of the parties hereto that such
covenants, which would otherwise be unenforceable due to such excessive or
unreasonable period of time, be in force for such lesser period of time as shall
be deemed reasonable and not excessive by such court.
8.2 No Representations or Warranties Regarding Products and
Services.
Neither party shall make any representations or warranties on behalf of
the other's products or services which products or services are not subject to
this Agreement to any third party without the written permission of the other
party, and each shall defend and indemnify the other with respect to any claims
arising out of the breach of this provision.
ARTICLE IX
CONFIDENTIALITY
9.1 Confidential Information.
During the course of this Agreement, both parties will be given access
to information that relates to the Disclosing Party's (as defined below) or its
Affiliates' or their respective customers' past, present and/or future research,
development, business activities, products, services, Materials and/or technical
knowledge; and either (i) has been identified in writing as confidential or (ii)
from the circumstances surrounding disclosure should reasonably be understood to
be confidential or proprietary (the "Confidential Information").
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9.2 Restrictions.
As used herein, the party disclosing Confidential Information is the
"Disclosing Party" and the party receiving the Confidential Information is the
"Recipient". In connection therewith, the following subsections will apply:
(a) Confidential Information disclosed by the Disclosing
Party may be used by the Recipient only in connection with the purposes of this
Agreement or as expressly specified in this Agreement;
(b) The Recipient will not, at any time, use or disclose
the Confidential Information disclosed by the Disclosing Party in any fashion,
form or manner except in furtherance of the purposes of this Agreement or as
expressly specified in this Agreement;
(c) The parties agree to protect the confidentiality of
the Confidential Information disclosed by the Disclosing Party in the same
manner that they protect the confidentiality of their own proprietary and
confidential information of like kind. Access to the Confidential Information
will be restricted to those of the Recipient's partners, principals, officers,
employees and personnel engaged in a use permitted hereby on a need-to-know
basis;
(d) All Confidential Information made available
hereunder, including copies thereof, will be returned to the Disclosing Party
upon the first to occur of (a) termination of this Agreement or (b) request by
the Disclosing Party, except as otherwise expressly specified in this Agreement;
(e) Confidential Information shall not include the
information (i) which is known to Recipient or in its possession at the time of
disclosure as evidenced by written documentation, (ii) independently developed
by Recipient without the use of any Confidential Information disclosed by the
Disclosing Party as evidenced by written documentation, (iii) acquired by
Recipient from a third party which is not to the Recipient's knowledge, under an
obligation to the Disclosing Party not to disclose such information, (iv) which
is or becomes publicly available through no breach by the Recipient of this
Agreement, or (v) which is approved in writing for release by the Disclosing
Party. In addition, this Agreement shall not prohibit disclosure of Confidential
Information (A) to Recipient's counsel, accountants and similar advisors which
are under obligations of confidentiality, (B) to the extent necessary in
connection with the enforcement of this Agreement or any related agreement, or
(C) as required by subpoena, court order or other process, by applicable law,
rules or regulations or governmental or administrative authorities.
(f) In the event the Recipient receives a subpoena, court
order or other process requesting Confidential Information, the Recipient (if
legally permissible) will provide prompt notice to the Disclosing Party of such
receipt. The Recipient will thereafter be entitled to comply with such subpoena,
court order or other process to the extent required by law; provided that the
Recipient will provide the Disclosing Party with prompt notice of such
obligation (if legally permissible) so that the Disclosing Party may seek an
appropriate protective order or procedure if it elects to do so.
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(g) Enthone agrees that it will not provide any
Confidential Information to any of the organizations listed in Schedule O,
except it may provide to * * * such Confidential Information to the extent
required to enable * * * to manufacture Products in furtherance of this
Agreement.
9.3 Survival of Confidentiality. The confidentiality obligations
under this Section 9 shall survive for a period of five (5) years following the
termination or expiration of this Agreement.
ARTICLE X
INTELLECTUAL PROPERTY RIGHTS
10.1 Rights in Background Materials.
Subject to Sections 2.2, 4.2 and 4.3 hereof, all right, title and
interest in and to any Intellectual Property related to Products (i) owned,
licensed or used by a party prior to the Effective Date of this Agreement, or
(ii) otherwise made, created or developed by or on behalf of a party outside the
scope of this Agreement (hereafter referred to as "Background Materials"), shall
remain the sole and exclusive property of such party or its licensors that
owned, licensed or used such Background Materials (in the case of clause (i)) or
made, created or developed such Background Materials (in the case of clause
(ii)).
10.2 Rights in Intellectual Property Developed Under this
Agreement.
The parties' rights to Intellectual Property and Materials developed
pursuant to a Statement of Work under Article IV of this Agreement shall be
governed by the following:
(a) Ownership of Jointly Developed Intellectual Property
and Materials Rights. The parties' shall jointly own any jointly developed
Intellectual Property and Materials including, without limitation, derivative
works to the Technology or Products, without obligation to account to the other
for use thereof, except as provided in this Agreement. In the event the
Intellectual Property or Materials of one of the parties is used in any joint
development project, the other party shall have rights to such Intellectual
Property or Materials only to the extent such Intellectual Property or Materials
is used in such development project.
(b) Ownership of Solely Developed Intellectual Property
and Materials Rights. Subject to Sections 2.2, 4.2 and 4.3 hereof, all right,
title and interest in and to any and all Intellectual Property and Materials
pursuant to a Statement of Work under Article IV of this Agreement that are
developed solely by one of the parties during the Term of this Agreement shall
be owned solely by the developing party. Subject to Sections 2.2, 4.2 and 4.3
hereof, the developing party agrees that, during the Term of this Agreement, it
shall grant to the other party a non-exclusive, non-transferable license to make
and use Products using such Intellectual Property and Materials solely in
furtherance of the purposes and intent of the Alliance. All such license grants
under this Section 10.2(b) shall expire immediately upon the termination of this
Agreement.
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10.3 Conflicts. In the event of any conflict between the provisions
of this Article X and Section 2.2, 4.2 or 4.3 hereof, the provisions of Section
2.2, 4.2 and/or 4.3 hereof, as applicable, shall control.
ARTICLE XI
INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS
11.1 Indemnification by ATMI.
(a) ATMI agrees to indemnify and hold harmless Enthone
and its Affiliates, and any partner, principal, director, officer, consultant,
contractor, employee or agent thereof (collectively, the "Enthone Parties"),
from any and all liabilities, damages, costs and expenses, including reasonable
attorneys' fees, to the extent incurred by any of the Enthone Parties as a
result of ATMI's manufacture, sale or distribution of the Products, including
any (i) representations or warranties relating to the Products made by ATMI to
third parties without Enthone's written approval and (ii) alteration, repacking
or modification of the Products without Enthone's written approval; provided,
however, that ATMI's indemnification obligations under this Section 11.1 shall
not apply to the extent that: (1) Enthone has an obligation to indemnify any
ATMI Party pursuant to Section 11.2; or (2) any claim arises as a result of
Enthone's actions or inactions related to manufacture.
(b) As a condition to the foregoing indemnities, the
Enthone Party seeking indemnification shall provide ATMI with prompt written
notice of such action or claim, and ATMI will have the right to control the
defense and settlement of all such actions or claims with counsel of its own
choosing.
11.2 Indemnification by Enthone.
(a) Enthone agrees to indemnify and hold harmless ATMI
and its Affiliates, and any partner, principal, director, officer, consultant,
customer, contractor, employee or agent thereof (collectively, the "ATMI
Parties"), from any and all liabilities, damages, costs and expenses, including
reasonable attorneys' fees, to the extent incurred by any of the ATMI Parties as
a result of any third party claim that any (i) Product, (ii) Technology or (iii)
Material, in each case licensed or provided by Enthone to ATMI hereunder (items
(i) through (iii), collectively, "Enthone Indemnifiable Materials") infringes
any Intellectual Property right of a third party, including but not limited to *
* *. Enthone will have no obligation to indemnify any of the ATMI Parties to the
extent that (1) ATMI has an obligation to indemnify any Enthone Party pursuant
to Section 11.1; or (2) such claim arises from any enhancement, alteration,
modification or adaptation to, or derivative work of, or any specification for,
the Enthone Indemnifiable Materials is made by any ATMI Party without Enthone's
written consent.
(b) As a condition to the foregoing indemnities, the ATMI
Party seeking indemnification shall provide Enthone with prompt written notice
of such action or claim, and Enthone will have the right to control the defense
and settlement of all such actions or claims with counsel of its own choosing.
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11.3 Indemnification by Manufacturer. Each of the parties agrees to
indemnify and hold harmless the other party from any and all liabilities,
damages, costs and expenses, including reasonable attorneys' fees, incurred by
any of the ATMI Parties or Enthone Parties, as applicable, as a result of any
claim arising out of such party's grossly negligent or reckless manufacture of
the Products.
11.4 Rectification.
If any Enthone Indemnifiable Material becomes or, in Enthone's
reasonable opinion, is likely to become subject to a claim of infringement
within the scope of this Article XI, Enthone shall, at its expense, either:
(a) Modify the Enthone Indemnifiable Material so that it
will become non-infringing; or
(b) Procure for ATMI the right to continue to use the
Enthone Indemnifiable Material in the manner contemplated in this Agreement; or
(c) Substitute for any infringing material an equivalent
with substantially similar material.
11.5 Third Party Infringement.
(a) Each party shall promptly notify the other party in
writing of suspected or actual infringement of any Intellectual Property related
to the Products ("Infringement") and shall inform the other party of any
evidence of such Infringement;
(b) If at any time during the Term of this Agreement,
ATMI furnishes to Enthone reasonably convincing evidence of an infringement of
Enthone's Intellectual Property related to the Products, Enthone shall take such
reasonable action as it determines to be appropriate, in its sole discretion, to
xxxxx Infringement, including, without limitation, instituting suit for
Infringement, instituting arbitration proceedings, or taking other action to
xxxxx the Infringement, with the costs and expenses of such action to be borne
by Enthone. ATMI agrees to reasonably assist and cooperate with Enthone in such
abatement action and may, at its option and expense, retain counsel of its own
in connection with such action.
(c) If Enthone does not take action or abandons efforts
to xxxxx the Infringement, it shall give ATMI prompt written notice of such
determination, and ATMI shall have the right to bring suit or take any other
action it deems appropriate in its sole discretion to xxxxx the Infringement and
shall have the right for such purpose to join Enthone as a party plaintiff.
(d) The parties shall share any recovery of damages and
other judgments resulting from all proceedings and other actions prosecuted and
undertaken by Enthone to xxxxx Infringement, in the same proportion as the
parties have respectively suffered actual losses and damages resulting from the
Infringement(s), provided that any such recovery of damages and other judgments
shall first be allocated to compensate Enthone in respect of actual expenditures
made by it in prosecuting and undertaking proceedings and other actions to xxxxx
the
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Infringement. ATMI shall be entitled to retain, and except to compensate Enthone
for expenses incurred by it as a result of ATMI joining Enthone as a party
plaintiff, Enthone shall not share in, recoveries obtained by ATMI in
prosecuting and undertaking proceedings and other actions to xxxxx Infringement
pursuant to Section 11.5(c).
11.6 Limitation of Liability.
EXCEPT TO THE EXTENT AWARDED AGAINST A PARTY ENTITLED TO INDEMNITY UNDER THIS
AGREEMENT IN CONNECTION WITH ANY THIRD PARTY CLAIM, NEITHER PARTY SHALL, IN ANY
EVENT, BE LIABLE FOR ANY INDIRECT OR SPECULATIVE OR CONSEQUENTIAL OR PUNITIVE
DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF DATA, BUSINESS
INTERRUPTIONS, AND LOSS OF INCOME OR PROFITS, IRRESPECTIVE OF WHETHER IT HAD AN
ADVANCE NOTICE OF THE POSSIBILITY OF ANY SUCH DAMAGES. NEITHER PARTY SHALL BE
LIABLE FOR ANY THIRD PARTY CLAIMS, OTHER THAN AS EXPRESSLY PROVIDED ELSEWHERE IN
THIS AGREEMENT.
ARTICLE XII
TRADE NAMES AND TRADEMARKS
12.1 Use of Marks.
All Products manufactured or sold pursuant to the Alliance shall be
sold under the trademarks of both ATMI and Enthone. Except as provided herein,
neither party will use any of the other party's names or marks in advertising or
other promotional material or activity without first obtaining, for each
proposed use, the owner's prior express written permission. The using party
will, solely at its expense and prior to use of any of the other party's names
or marks, make any and all reasonable changes, corrections or alterations to any
such proposed material or activity which the owning party deems necessary or
advisable.
12.2 Title.
Each party acknowledges the value of the other party's names and marks
and the goodwill associated therewith and acknowledges that such goodwill is a
property right belonging to that party and that that party is the owner of all
trademarks, trade names and other rights in its names and marks. Nothing
contained in this Agreement is intended as an assignment or grant to the other
party of any right, title or interest in or to such names or marks and this
Agreement does not confer any right to license, to grant sublicenses or
permission to third parties to use any such names or marks.
12.3 Trademark License.
(a) Enthone hereby grants to ATMI, upon the terms and
conditions of this Agreement, the non-exclusive right and license to use those
Enthone trademarks, including Viaform, related to the Products including those
listed on Schedule I hereto (the "Enthone Trademarks"). Enthone reserves all
rights to the Enthone Trademarks except as expressly granted herein to ATMI.
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(b) All use of the Enthone Trademarks by ATMI under the
terms of this Agreement shall inure to the benefit of Enthone in accordance with
the terms of this Agreement. ATMI shall not question or attack, or knowingly
perform any act which interferes with, Enthone's right, title and interest in
and to the Enthone Trademarks.
(c) ATMI acknowledges that ATMI is not the owner of the
Enthone Trademarks. ATMI acknowledges that, except as provided hereunder, ATMI
does not have any right to license others to use the Enthone Trademarks and that
Enthone may, in its sole and absolute discretion, use or license others to use
the Enthone Trademarks, provided, that, such use or license of the Enthone
Trademarks shall not limit ATMI's rights or otherwise restrict ATMI's ability to
meet its obligations under this Agreement.
(d) Subject to the terms and conditions of this
Agreement, the license granted to ATMI under Section 12.3(a) is a royalty-free
right and license to use the Enthone Trademarks in furtherance of its
obligations under this Agreement.
(e) ATMI agrees that the quality of the Products sold by
ATMI from a second source using the Enthone Trademarks, which second source was
chosen by ATMI, shall be reasonably satisfactory to Enthone. ATMI agrees, upon
the reasonable request of Enthone, to submit to Enthone samples of the products
sold using the Enthone Trademarks for the purpose of determining compliance
herewith.
(f) ATMI agrees that in connection with the use of the
Enthone Trademarks by ATMI it shall include an appropriate designation that the
Enthone Trademarks are trademarks by using the appropriate trademark symbol.
ARTICLE XIII
TERM AND TERMINATION
13.1 Term of Agreement.
(a) This Agreement will commence as of the Effective Date
and remain in effect for a period of ten years following the Effective Date
unless extended by amendment or in accordance with the provisions of this
Article XIII, or terminated in accordance with the terms of this Agreement (the
"Term").
(b) If, on the tenth anniversary of the Effective Date
and each subsequent anniversary of the Effective Date, the ATMI exclusivity
metrics set forth on Schedule J hereto (the "ATMI Exclusivity Metrics") are met,
the Agreement will automatically be extended for a period of one year, provided
that ATMI shall be deemed to have met such ATMI Exclusivity Metrics if ATMI's
failure to do so is the result of Enthone's act or failure to act in accordance
with its obligation under this Agreement, or material breach. Subject to the
provisions of this Section 13.1(b) and Section 13.4 (b), if, as of the tenth
anniversary of the Effective Date or any subsequent anniversary of the Effective
Date, ATMI does not meet the ATMI Exclusivity Metrics, Enthone may terminate
this Agreement upon thirty (30) days of such determination.
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13.2 Termination.
The following rights to terminate this Agreement are in addition to the
rights a party may have to terminate this Agreement as set forth elsewhere in
this Agreement:
(a) If either party defaults in the performance of any
material obligation hereunder or materially breaches any representation or
warranty hereunder and such default or breach has a material adverse effect on
the Alliance, the non-defaulting or non-breaching party may terminate this
Agreement by written notice specifying the default or breach, which termination
will become effective thirty (30) days after the delivery of notice to the
defaulting or breaching party, unless during such thirty (30) day period the
default or breach will have been cured by the defaulting or breaching party.
(b) Either party may terminate this Agreement immediately
upon giving written notice to the other party if the other party is adjudicated
as bankrupt, becomes insolvent, suffers permanent or temporary court-appointed
receivership of substantially all of its property, makes a general assignment
for the benefit of creditors, or suffers the filing of a voluntary or
involuntary bankruptcy petition, in each case with respect to an involuntary
proceeding that is not dismissed within forty-five (45) days after filing or
commencement.
(c) Either party (the "Non-Changing Party") may terminate
this Agreement upon thirty (30) days notice to the other party upon the
occurrence of a "Change of Control" with respect to the other party after the
Effective Date which involves a Competitor, as defined in Schedule K, of the
Non-Changing Party; provided that such notice must be received within thirty
(30) days of the occurrence of such Change of Control. For purposes hereof, a
"Change of Control" means the occurrence of any one or more of the following:
(A) a merger or consolidation involving a party in which such party's
shareholders or equity owners immediately prior to such merger or consolidation
do not in the aggregate own at least a majority equity interest and a majority
of the voting capital stock or interests in the surviving entity (if such party
is a constituent corporation in such merger or consolidation) immediately
following the consummation of such merger or consolidation,; (B) the sale (in
one transaction or a series of transactions) of all or substantially all of the
assets of a party; or (C) any transaction, circumstance or event that would
result in any "person" or "group" (as such terms are used for purposes of
Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), whether or not applicable), together with all affiliates and
associates (as each such term is defined in Rule 12b-2 under the Exchange Act)
thereof, acquiring direct or indirect beneficial ownership (as defined in Rule
13d-3 under the Exchange Act) of more than 50% of the equity interests or more
than 50% of the voting capital stock or interests of a party.
(d) ATMI may terminate this Agreement at its sole
discretion upon twelve (12) months written notice to Enthone.
13.3 Responsibilities Upon Termination.
Upon termination of this Agreement for any reason, except as provided
under Section 13.4, each party will immediately:
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(a) cease holding itself out in any manner as an Alliance
party with the other party except as may be provided in a separate written
agreement between the parties;
(b) discontinue any and all use of trade names and/or
trademarks authorized for use under this Agreement; and
(c) return to the other party or destroy the Confidential
Information disclosed by the other party in its possession and, if such
Confidential Information is destroyed, such destruction will immediately be
certified in writing by a senior officer of that party.
Notwithstanding any provision of this Agreement to the contrary, each
party shall have the right to retain any summaries, analyses, notes or extracts
prepared by it, which are based on or contain portions of the Confidential
Information disclosed by the other party as evidence of this Agreement, as may
be required by law, regulation or reasonable business practices, provided,
however, that each party shall remain subject to the restrictions set forth in
Article IX hereof with respect to such Confidential Information.
13.4 Rights Upon Termination or Expiration.
(a) Notwithstanding any provision of this Agreement to
the contrary, upon expiration or termination of this Agreement for any reason,
Section 2.2(a)(ii) survives. If this Agreement is terminated by ATMI pursuant to
Sections 13.2 (a), (b) or (c), the exclusivity under the Exclusive License
granted to ATMI under Section 2.2(a)(i) shall remain in effect for a period of
ten (10) years following the Effective Date.
(b) Notwithstanding any provision of this Agreement to
the contrary, upon expiration or termination of this Agreement for any reason,
Sections 2.2(b)(i) and (ii) survive, and:
(i) If this Agreement is terminated by ATMI pursuant to
Sections 13.2(a), (b), or (c), Enthone shall sell
Viaform ECD to ATMI at a price that is the lowest
price charged to any customer (excluding any original
equipment manufacturers or other technology
development partners which do not commercialize
Viaform ECD), distributor or affiliate (collectively
"Customers") for similar quantities of Viaform ECD
regardless of any special terms, conditions, rebates
or allowances of any nature; provided, that, if there
are no comparable Customers for Viaform ECD, then the
price charged to ATMI for Viaform ECD shall be the
lesser of (x) a thirty-five percent (35%) discount to
the applicable list price at the time of termination
of this Agreement, and (y) the lowest price charged
to any customer for similar quantities of Viaform ECD
regardless of any special terms, conditions, rebates
or allowances of any nature;
(ii) If this Agreement is terminated by Enthone pursuant
to Section 13.2(a) (not including ATMI's failure to
meet the ATMI Exclusivity Metrics), (b), or (c), or
by ATMI pursuant to Section 13.2(d), then Enthone
shall sell Viaform ECD to ATMI at a price that shall
be the lesser of (x) a thirty-five percent (35%)
discount to the applicable list price at the time of
27
termination of this Agreement, and (y) a twenty
percent (20%) discount to the average net selling
price as determined in accordance with Section 3.2(a)
but average net selling price shall be based on
Enthone's average net selling price and not ATMI's
average net selling price;
(iii) If this Agreement is terminated or expires for any
reason other than those listed in Sections 13.4(b)(i)
or (ii) above, Enthone shall sell Viaform ECD to ATMI
at a price that is the lowest price charged to any
Customer for similar quantities of Viaform ECD
regardless of any special terms, conditions, rebates
or allowances of any nature; provided, that, if there
are no comparable Customers for Viaform ECD, then the
price charged to ATMI for Viaform ECD shall be the
lesser of (x) a thirty-five percent (35%) discount to
the applicable list price at the time of termination
of this Agreement, and (y) the lowest price charged
to any Customer for similar quantities of Viaform ECD
regardless of any special terms, conditions, rebates
or allowances of any nature; and
(iv) In the event ATMI after termination or expiration
transfers the Technology to a Competitor as defined
in Schedule K, the Enthone pricing obligations under
Sections 13(b)(i), (ii), and (iii) shall terminate.
(c) ATMI and its designee shall have the right to have
Enthone's records inspected and audited to ensure compliance with this
provision. If Enthone is found not to be complying with Section 13.4(b), Enthone
shall reimburse ATMI for all costs associated with the audit, along with any
discrepancies discovered within thirty (30) days after the completion of the
audit. If a discrepancy is discovered, the other party shall make payment within
thirty (30) days, and if the discrepancy exceeds five percent (5%) in favor of
the party being audited, the party being audited shall pay the reasonable cost
of the audit.
(d) * * *
(e) Except as otherwise provided in this Agreement, the
rights and obligations of the parties under this Agreement that have accrued or
have been incurred prior to the effective date of expiration or termination
shall continue in full force and effect notwithstanding the termination or
expiration of this Agreement. In addition, the termination of this Agreement
shall not affect a party's rights or remedies in respect of the other party's
breach of this Agreement.
ARTICLE XIV
MISCELLANEOUS
14.1 Jurisdiction; Waiver of Jury Trial. The parties hereby agree
that service of any process, summons, notice or documents by registered mail to
the address set forth in Section 14.12 shall be effective service of process for
any action, suit or proceeding brought against a party in such court. The
parties irrevocably and unconditionally waive any right to trial by a jury.
14.2 Certain Bankruptcy Code Provisions.
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The parties hereto agree that the rights granted to ATMI hereunder,
including, without limitation, the License, are rights in "intellectual
property" within the scope of Section 101 of the United States Bankruptcy Code,
as amended (the "Code"), and ATMI shall have any and all other rights with
respect thereto provided under Section 365(n) of the Code. In the event of a
case under the Code involving Enthone as a debtor, in addition to any other
right or remedy Enthone may have hereunder or under applicable law or otherwise,
Enthone or any trustee for Enthone or its assets shall, at ATMI's written
request, deliver to ATMI or the Person designated by ATMI a copy of all
embodiments of Intellectual Property rights reasonably necessary for ATMI to
exercise its rights in relation to Viaform ECD and Technology.
14.3 Waivers; Consents.
No waiver by ATMI or Enthone of any of the terms, conditions, covenants
or agreements of this Agreement, or non-compliance therewith, shall be binding
unless in writing and signed by the party to be charged, and no such waiver
shall be deemed or taken as a waiver at any time thereafter of the same or any
other term, condition, covenant or agreement herein contained, nor of the strict
and prompt performance thereof. No failure or delay on the part of either party
in exercising any power or right hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any such power or right preclude any
other or further exercise thereof or the exercise of any other power or right.
All rights and remedies provided for herein shall be cumulative and in addition
to any other rights or remedies the parties may have at law or in equity or
otherwise, except as otherwise set forth in this Agreement.
14.4 Costs.
Each party will pay its own costs and expenses incident to the
negotiation and preparation of this Agreement and to its performance and
compliance with all agreements and conditions contained herein on its part to be
performed or complied with including the fees, expenses and disbursements of its
counsel and all marketing expenses, except as otherwise expressly specified in
this Agreement].
14.5 Modifications and Amendments.
This Agreement may be amended, modified or supplemented only by a
written agreement signed by each of the parties hereto.
14.6 Severability.
If any provision of this Agreement is held to be illegal, invalid or
unenforceable under any present or future law, rule or regulation, such
provision shall be fully severable and this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision has never
comprised a part hereof. The remaining provisions of this Agreement shall remain
in full force and effect and shall not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom. Furthermore, in lieu of
such illegal, invalid or unenforceable provision, there shall be added
automatically as a part of this Agreement a legal, valid and enforceable
provision as similar in terms to such illegal, invalid or unenforceable
provision as may be possible.
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14.7 No Exclusivity of Alliance.
Subject to the provisions of this Agreement (including, without
limitation, the exclusivity provisions relating to the License as set forth in
Section 2.2 hereof), the Alliance is non-exclusive and will not be construed to
imply an exclusive arrangement between the parties, and each party is free to
enter into alliances with other parties so long as the terms of such alliances
do not contravene the terms and conditions of this Agreement.
14.8 Disclosure of Alliance Relationship. Except as required by a
party, in its reasonable discretion, to allow such party to fully leverage the
Products in the marketplace, any public announcement or disclosure relating to
this Agreement (or the terms hereof) or the Alliance shall be made only upon
mutual agreement of the parties. The parties agree that this restriction shall
not apply to any disclosures required by applicable law or to the extent
required to allow ATMI or Enthone to effectively leverage its right to make, use
and sell the Products.
14.9 Survival.
The following sections will survive and remain in effect beyond any
expiration or termination of this Agreement for the period set forth in such
section or if no such period is stated in such section, indefinitely: Sections
2.2 (subject to Section 13.4), 3.1(a)(i) and (ii), 3.1(c), 3.1(d), 3.4, 5.1(c),
5.1(d), 13.3, 13.4 and Articles IX, X, XI, XII and XIV.
14.10 Choice of Law.
This Agreement is governed by and construed in accordance with the laws
of the State of Connecticut, without regard to conflict of laws principles.
14.11 Construction of Agreement.
This Agreement has been negotiated by the respective parties hereto and
their legal counsel and the language hereof will not be construed for or against
any party. The Article and Section headings used or contained in this Agreement
are for convenience and reference only and shall not affect the construction of
this Agreement. References herein to Articles, Sections or Schedules mean and
refer to Articles and Sections of, and Schedules to, this Agreement, unless
otherwise specified. Words in the singular include the plural, and words in the
plural include the singular. Words in the masculine gender include the neuter
and feminine genders, words in the feminine gender include the neuter and
masculine genders and words in the neuter gender include the masculine and
feminine genders.
14.12 Notices.
All notices and other communications made or required to be given
pursuant to this Agreement shall be in writing and shall be (w) personally
delivered, (x) mailed by first-class, registered or certified mail, postage
fully prepaid, or (y) sent by recognized overnight courier, addressed as follows
(or as either party may hereafter provide by notice to the other party):
if to Enthone:
30
Enthone Inc.
000 Xxxxxxxx Xxxx
Xxxx Xxxxx, XX 00000
Attention: President
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
With a copies to:
Xxxxxxx Electronics
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attention: General Counsel
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Xxxxx Xxxxxxx & Xxxxxxx P.C.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
if to ATMI:
Advanced Technology Materials, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Chief Legal Officer
Telephone Number: (000) 000-0000
Facsimile Number: (000) 000-0000
Notice shall be considered duly given (i) on the day when delivered
personally, (ii) five (5) business days after the date on which mailed by first
class, registered or certified mail, postage fully prepaid, (iii) on the
business day immediately succeeding the day on which notice is sent by
recognized overnight courier, and (iv) on the business day when sent by
facsimile, provided receipt of such transmission is confirmed orally on such
day.
14.13 Assignment.
Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned or transferred (whether consensually,
non-consensually, by operation of law or otherwise) by any of the parties hereto
without the prior written consent of the other party, provided that either party
may assign this Agreement and all related rights, interest or obligations
hereunder to a successor-in-interest as result of a merger by operation of law
except as otherwise expressly provided herein. This Agreement and all of the
provisions hereof shall be binding
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upon and inure to the benefit of the parties hereto and their respective
permitted successors and assigns.
14.14 No Joint Venture or Partnership.
Except as expressly stated in this Agreement, nothing contained in this
Agreement will be deemed or construed as creating a joint venture or partnership
between ATMI and Enthone. Neither party will have the power to control the
activities and operations of or contractually bind or commit the other party and
their status with respect to one another is that of independent contractors.
14.15 Specific Performance.
Each party (individually the "Breaching Party") recognizes that the
other party (the "Non-Breaching Party") will suffer great and irreparable harm
as a result of the breach by the Breaching Party of any covenant or agreement to
be performed or observed by the Breaching Party under this Agreement other than
the covenants to make monetary payments, and, whether such breach occurs before
or after the termination of this Agreement, the Breaching Party acknowledges
that the Non-Breaching Party shall be entitled to apply for and receive from any
court of competent jurisdiction a temporary restraining order, preliminary
injunction and permanent injunction, without any necessity of proving damages or
any requirements for the posting of a bond or other security, enjoining the
Breaching Party from further breach of this Agreement or further infringement or
impairment of the Non-Breaching Party's rights in and to the Intellectual
Property rights in the Products. Such relief shall be in addition to and not in
substitution of any other remedies available to the Non-Breaching Party pursuant
to this Agreement or otherwise.
14.16 Further Assurances.
Each party hereby agrees from time to time to execute, deliver and file
such other and further statements of interest and holdings, designations, powers
of attorney and other instruments necessary to comply with any laws, rules or
regulations consistent with this Agreement and to take any and all such other
actions as reasonably requested by the other party hereto to carry out the terms
and intent hereof.
14.17 Execution of Counterparts.
This Agreement may be executed in one or more counterparts, each of
which will be considered an original counterpart and will become a binding
agreement when each party will have executed and delivered to the other party
one counterpart.
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14.18 Entire Agreement.
This Agreement, including the Schedules and Exhibits hereto which are
incorporated herein by reference, constitutes the entire agreement and
understanding of the parties hereto in respect of the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof. The express terms
hereof control and supersede any course of performance or usage of the trade
inconsistent with any of the terms hereof.
14.19 Force Majeure.
Neither party nor any of its respective Affiliates shall be liable for
failure to fulfill any of its obligations under this Agreement, when such
failure or delay is due to force majeure and without the fault or negligence of
the party so failing or delaying. For purposes of this Agreement, force majeure
is defined as causes beyond the control of the party, including, without
limitation: acts of God; acts, regulations or laws of any government; war; civil
commotion; destruction of production facilities or materials by fire, earthquake
or storm; labor disturbances; epidemic; and failure of public utilities or
common carriers. If for any of the reasons set forth above, a party or any of
its Affiliates shall be unable to fulfill its obligations under this Agreement
as a result of an event of force majeure, such party shall immediately notify
the other of such inability and of the period during which such inability is
expected to continue.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date set forth above.
ADVANCED TECHNOLOGY MATERIALS, INC.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
ENTHONE INC.
By: ______________________________________
Name: ____________________________________
Title: ___________________________________
34
