EXHIBIT 2.17
EXHIBIT L to Separation Agreement
CONTRACT MANUFACTURING AGREEMENT
This Contract Manufacturing Agreement (this "Agreement") is entered into as
of ________________, 2001, between Millipore Corporation ("Millipore"), a
Massachusetts corporation with its principal place of business at 00 Xxxxx Xxxx,
Xxxxxxx, XX 00000, and Millipore MicroElectronics, Inc. ("MMI"), a Delaware
corporation with its principal place of business at Xxxxxxxx Xxxx, Xxxxxxx, XX
00000.
RECITALS
1. Millipore currently owns all of the issued and outstanding common
stock of MMI.
2. Millipore and MMI have entered into a Master Separation and
Distribution Agreement as of March __, 2001 (the "Master Agreement") under
which, among other things, the business of Millipore's Microelectronics Division
is to be taken over by, and the assets and liabilities associated therewith are
to be transferred to and assumed by, MMI at the Separation Date (as defined in
the Master Agreement).
3. After the Separation Date, in order to enable MMI to carry on its
respective business as a separate company, MMI wishes that Millipore, on a
contract manufacturing basis, supply the product (or products) listed on Exhibit
A (the "Product") to MMI, and Millipore wishes to do so.
4. The Master Agreement provides for this Agreement to be entered into as
of the Separation Date.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms defined in this Agreement shall have
-----------
the respective meanings assigned to them at the location of their definition.
Capitalized Terms used in this Agreement without definition which are defined in
the Master Agreement shall have the meaning ascribed thereto in the Master
Agreement.
2. OVERRIDING CHARACTER OF THIS AGREEMENT
--------------------------------------
A. Unless otherwise agreed by both parties in writing, this Agreement
applies to all purchase releases, purchase orders and other documents
of purchase for the Products (hereinafter collectively referred to as
"Releases") which MMI may place with Millipore during the term of this
Agreement. The terms and
conditions of this Agreement shall apply to any Releases, whether or
not this Agreement or its terms and conditions are expressly
referenced in the Release.
B. Unless otherwise agreed by both parties in writing for a specific
transaction, no inconsistent or additional term or condition in any
Release shall be applicable to a transaction within the scope of this
Agreement. Both parties specifically agree that any term and
condition on any of their purchase or sale documents used as Releases
hereunder which are in any way inconsistent with this Agreement shall
be inapplicable, and the terms of this Agreement shall govern.
3. SUPPLY OF PRODUCT
-----------------
(a) Millipore agrees to sell to MMI, from time to time during the Term,
Product, in the amounts contained in MMI's Releases. Except as set
forth in Section 6(a) hereof, MMI shall have no minimum or maximum
purchase requirements for the Products.
(b) Millipore agrees to manufacture and package the Products in accordance
with the specifications therefor in effect as of the Separation Date.
In addition, Millipore agrees to label and otherwise xxxx the Products
and the packaging for the Products with MMI's trademarks and trade
names in accordance with artwork specified by MMI. Except as
otherwise expressly agreed, MMI agrees that it shall not resell the
Products under any Millipore trademark or trade name.
4. TERM AND TERMINATION
--------------------
(a) The effective period of this Agreement (the "Term") shall begin on the
Separation Date and continue thereafter for a period of five (5) years
or until earlier termination in accordance with clause (b) or (c) of
this Section 4. Any Release issued by MMI before the effective date of
termination and in accordance with Section 6(a) hereof shall be
fulfilled by Millipore.
(b) Either party may terminate this Agreement prior to the expiration of
the Term without prejudice to any rights or liabilities accruing up to
the date of termination:
(i) in the event of a material breach by the other party of any of
the terms and conditions of this Agreement, by giving the other
party notice of such breach, and provided that such breach
shall not have been cured, or material steps to effect a cure
undertaken within sixty (60) days following such notice; and
(ii) immediately, by written notice thereof, if any of the following
events or an event analogous thereto occurs:
2
a. an adjudication has been made that the other party is
bankrupt or insolvent;
b. the other party has filed bankruptcy proceedings or has had
such proceedings filed against it, except as part of a bona
fide scheme for reorganization;
c. a receiver has been appointed for all or substantially all
of the property of the other party;
d. the other party has assigned or attempted to assign this
Agreement for the benefit of its creditors; or
e. the other party has begun any proceeding for the liquidation
or winding up of its business affairs.
(c) MMI may terminate this Agreement effective at any time, provided it
has given Millipore at least sixty (60) days prior written notice
thereof.
(d) Termination under this Section 4 shall be in addition to and not a
substitute for other rights or causes of action of the terminating
party.
5. PRICE
-----
(a) For the first year of this Agreement, the price shall be as set forth
on Exhibit A, which is attached and incorporated by reference.
Thereafter, Millipore shall be entitled to adjust prices annually on
each anniversary of the Separation Date in order to recoup actual
increases in the cost to manufacture the Products. Millipore agrees
to justify any price increases hereunder by an open-book review of its
costs with MMI.
(b) Prices and deliveries will be FOB Millipore's Jaffrey plant.
6. ORDERS, DELIVERY AND PAYMENT
----------------------------
(a) MMI will provide Millipore with a rolling one year forecast of its
demand for Product hereunder (a "One-Year Forecast") which will be
updated on a quarterly basis, at least thirty (30) days prior to the
start of each calendar quarter. Each such One-Year Forecast shall
include a sub-forecast for the first three months within the One-Year
Forecast (a "3 Month Forecast"). MMI shall provide Releases for
delivery, during the three months covered by such 3 Month Forecast, in
the quantities specified therein, but subject to increase or reduction
in such quantities of not more than 25%. Except for such purchase
commitment in the 3 Month Forecasts, the One-Year Forecasts will be
used for
3
planning purposes only and are not binding. Millipore will ship
Product so as to arrive on the delivery date set forth in a Release,
provided that the delivery date set forth in such Release is not less
than 30 days following the date Millipore receives such Release and
provided that the amounts set forth in such Release are within the
range provided above in accordance with the applicable 3 Month
Forecast.
(b) MMI shall make payment to Millipore within forty-five (45) days after
the later of (i) receipt of the Product, and (ii) receipt of
Millipore's invoice for the Product. All payments shall be made in
U.S. Dollars. Late payments shall bear interest at a rate of 12% per
annum.
(c) All Product shall be tested, inspected and packaged for delivery by
Millipore as mutually agreed by the parties.
(d) Millipore shall make reasonable best efforts to ship the Product in
accordance with the requested delivery dates. Millipore shall give
prompt notice of any delay in shipment and shall use diligence to
remove the cause of any such delay, provided, however, that Millipore
-------- -------
accepts no liability for any losses or for general, special, or
consequential damages arising out of delay in delivery.
(e) Identification of the Products to this Agreement shall occur when they
are packed for shipment, addressed to MMI and delivered to a common
carrier, at which time title and risk of loss shall pass to MMI. In
the event that any shipment of Products or any portion thereof fails
to conform to the applicable specifications, then MMI shall be
entitled to reject such shipment of Products or the portion thereof
that fails to so conform, as the case may be. MMI shall communicate
its rejection hereunder by written notice, given within twenty (20)
days following the date on which such shipment was received by MMI,
specifying the grounds for such rejection. If no written notice of
rejection is given by MMI within said twenty (20) day period, the
Products shall be deemed to have been accepted, and to have conformed
to the applicable specifications. In the event of any proper and
timely rejection, Millipore agrees: (I) that it shall bear the cost of
shipment for the return of rejected Products and (II) to use its
reasonable best efforts to cure such rejection or replace such
nonconforming Products within thirty (30) days after receipt of
written notice thereof.
7. SPECIAL COVENANTS
-----------------
(a) Millipore agrees that the Products are exclusively MMI Products and
that Millipore agrees that neither it nor any of its Subsidiaries
shall manufacture, market or sell the Products to any person other
than MMI or its Subsidiaries. Notwithstanding the above, if the
Product is covered by the Product Distribution Agreement, then
Millipore may distribute the Product as per the terms of such Product
Distribution Agreement.
4
(b) MMI agrees that neither it nor any of its subsidiaries will (i) sell
the Product into the Millipore Core Business, or (ii) grant any
distributor, OEM manufacturer or other third party the right or permit
any of them to sell the Products into the Millipore Core Business
8. WARRANTIES
----------
Millipore Corporation ("Millipore") warrants the Products will be free from
defects in materials and workmanship when used in accordance with the
applicable instructions for a period of one year from shipment of the
Products. MILLIPORE MAKES NO OTHER WARRANTY, EXPRESSED OR IMPLIED. THERE IS
NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The
warranty provided herein and the data, specifications and descriptions of
Millipore products appearing in Millipore's published catalogues and
product literature may not be altered except by express written agreement
signed by an officer of Millipore. Representations, oral or written, which
are inconsistent with this warranty or such publications are not authorized
and if given, should not be relied upon.
In the event of a breach of the foregoing warranty, Millipore's sole
obligation shall be to repair or replace, at its option, the applicable
Product or part thereof, provided MMI notifies Millipore promptly of any
such breach. If after exercising reasonable efforts, Millipore is unable to
repair or replace the Product or part, then Millipore shall refund to MMI
all monies paid for such applicable product or part. MILLIPORE SHALL NOT BE
LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR ANY OTHER INDIRECT DAMAGES
RESULTING FROM ECONOMIC LOSS OR PROPERTY DAMAGE SUSTAINED BY ANY CUSTOMER
FROM THE USE OF ITS PRODUCTS.
9. PRODUCT MODIFICATIONS
---------------------
Millipore agrees that it will not materially change the Product that it
will supply hereunder or their formulation, manufacturing or testing
processes, process equipment, other aspects of form, fit or function, or
production location, unless MMI approves such change in writing, which
approval may require formal validation and qualification and possibly
customer notification. The implementation of any such accepted changes
shall be subject to the parties' agreement on any change in price or other
terms of supply as may be necessitated or requested by a party as a result
of such change.
5
10. INVENTORY
---------
Millipore will maintain an inventory of Product, in such amounts as shall
be agreed by the parties but in no event less than amounts specified in
MMI's current 3 Month Forecast.
11. ACCESS TO FACILITIES
--------------------
At any time during the Term, upon reasonable advance notice by MMI, MMI's
authorized representatives and customers (subject to appropriate
confidentiality obligations) shall be provided access to the facilities of
Millipore to audit or verify conformity of Product manufacture to
specifications.
12. NOTICES
-------
Any notice or other communication required or permitted to be given by
either party pursuant to the terms of this Agreement shall be in writing
and shall be deemed given if and when delivered by hand or sent by
certified mail, return receipt requested, overnight courier, confirmed
telecopy, or confirmed electronic mail transmission, addressed as follows:
If to Millipore: Millipore Corporation
00 Xxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Vice President, Manufacturing
-----------------------------
Fax: [(781)__________]
with a copy to: Millipore Corporation
00 Xxxxx Xxxx
Xxxxxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
If to MMI: Millipore MicroElectronics, Inc.
Patriots Park
Xxxxxxx, XX 00000
Attn: Vice President, Manufacturing
-----------------------------
Fax: [(781) ________]
with a copy to: Millipore MicroElectronics, Inc.
Patriots Park
Xxxxxxx, XX 00000
Attn: General Counsel
Fax: (781) _________
6
or to such electronic mail address as may be specified by an addressee
party to the other party by one of the other means provided above, or to
such other address, telecopy number or electronic mail address as may be
specified by an addressee party to the other by one of the means provided
above.
13. FORCE MAJEURE
-------------
The obligations of a party under this Agreement will be suspended to the
extent that it is wholly or partially precluded from complying with its
obligations under this Agreement by force majeure. Force majeure includes,
but is not restricted to, fire, storm, flood, earthquake, explosion,
accident, act of the public enemy, war, rebellion, insurrection, sabotage,
epidemic, quarantine restriction, labor dispute, labor shortage,
transportation embargo or failure or delay in transportation, act of God,
act (including laws, regulations, disapprovals or failure to approve) of
any government agency, whether national, municipal, or otherwise. The
parties shall be relieved of their respective obligations hereunder, to the
extent that the performance of such obligation was actually prevented
thereby. During the existence of any such condition, the affected party
shall, nevertheless, use its best efforts to remove the cause thereof.
14. NO OTHER RIGHTS
---------------
Neither party shall have any rights hereunder to any patents or other
intellectual property of the other party, except as specifically set forth
herein.
15. INCORPORATION OF PROVISIONS FROM MASTER AGREEMENT
-------------------------------------------------
The following provisions of the Master Agreement, mutatis mutandis,
are hereby incorporated by reference into this Agreement for all purposes:
Article VI (Confidentiality);
Article IX (Dispute Resolution);
Section 10.3 (Governing Law);
Section 10.6 (Counterparts);
Section 10.7 (Binding Effect; Assignment);
Section 10.8 (Severability);
Section 10.9 (Failure or Indulgence Not Waiver;
Remedies Cumulative);
Section 10.10 (Amendment);
Section 10.11 (Authority);
Section 10.12 (Interpretation).
7
In the event of any conflict between any of the foregoing incorporated
provisions of the Master Agreement and any other provision of this
Agreement, such other provisions shall prevail.
16. ENTIRE AGREEMENT
----------------
This Agreement, including Exhibit A attached hereto, is the entire
agreement between the parties with respect to the subject matter hereof,
and supersedes any prior negotiations and agreements or understandings and
any contemporaneous oral agreements or understandings with respect to the
subject matter hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives effective as of the date first
set forth above.
MILLIPORE CORPORATION MILLIPORE MICROELECTRONICS, INC.
By:______________________ By:_______________________
Name:____________________ Name:_____________________
Title:___________________ Title:______________________
8
EXHIBIT A:
