EXHIBIT 10.19
RESEARCH AGREEMENT
This Agreement is made effective this 31st day of March, 2001, by and between
Millipore Corporation, a Massachusetts Corporation ("Millipore"), and Mykrolis
Corporation, a Delaware corporation, ("Mykrolis").
Introduction and Background
1. The Board of Directors of Millipore has determined that it is in the best
interest of Millipore and its stockholders to separate Millipore's existing
businesses into two independent businesses.
2. As part of the foregoing, Millipore and Mykrolis, have entered into a
Master Separation and Distribution Agreement which provides, among other
things, for the separation of certain Mykrolis assets and Mykrolis
liabilities, the initial public offering of Mykrolis stock, the
distribution of such stock and the execution and delivery of certain other
agreements in order to facilitate and provide for the foregoing.
3. Millipore has a central research group which performs research on behalf of
all of the divisions of Millipore.
4. Millipore's microelectronics division, which has become Mykrolis, wishes to
have Millipore continue to perform certain research for Mykrolis for a
period of time and Millipore wishes to perform such research.
NOW, THEREFORE, Millipore and Mykrolis agree as follows:
1. Research Projects Performed by Millipore Personnel
A. The Projects
For the duration of this Agreement, Millipore shall commit to perform
the following 4 research projects for Mykrolis:
. High Performance Filter
. Orion PTFE Filter
. Non-Sieving Technology
. Quick Change II
(collectively, the "Projects", or a "Project")
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Such Projects are described in Exhibit A which is attached and
incorporated by reference.
B. Process for Conducting Research
On an annual basis, the parties shall determine the scope of work for
each Project, the amount of Millipore personnel required to perform
such work, and the particular Millipore personnel assigned to each
Project.
The parties agree to use their best efforts to determine the scope of
work, the amount of time required to perform such work, and the
particular Millipore personnel assigned to each Project for the first
year of this Agreement within sixty (60) days following the execution
of this Agreement. Thereafter, these matters shall be determined as
follows:
(i) Before the end of the current contract year, Mykrolis shall
meet with Millipore to discuss with regard to each Project the
scope of work it wishes Millipore to complete for the following
contract year.
(ii) For each Project, Millipore shall submit a research proposal
(the "Research Proposal") which shall include the following:
. the scope of work proposed for the following year;
. the particular Millipore personnel assigned to the Project
and the percentage of their time to be spent on such
Project;
. estimate of expenses and capital needed for the following
year. The actual expenses and capital may vary but the
variance from the estimate shall not be greater than 20%
without Millipore receiving the written consent of Mykrolis.
(iii) The parties shall discuss each Research Proposal, modify as
appropriate, and, if acceptable to both parties, shall indicate
their agreement by mutual execution of the Research Proposal.
Once executed, the Research Proposal shall bind both parties.
(iv) Each Research Proposal shall be mutually executed at least 90
days before the end of the current contract year.
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(v) If the parties cannot agree on a Research Proposal for a
particular Project, or if Mykrolis elects not to continue work
on a particular Project, then the work on that particular
Project shall stop at the end of the current contract year.
Thereafter, Millipore shall have no obligation to work on such
Project.
(vi) After the completion of a Project, support services may be
requested by Mykrolis to assist in the implementation of the
results of the project work. Both parties will agree to the
amount of time required to fulfill these requests prior to work
commencing. Costs will be determined as per Section D below.
C. No Guarantees; Representations
The parties recognize that research is inherently an uncertain
endeavor. Accordingly, Millipore cannot guarantee that any particular
results will arise from the research performed under this Agreement.
Millipore does, however, represent the following:
(i) The work to be accomplished in the Research Proposals shall be
realistic and achievable.
(ii) The Millipore personnel assigned to each Project possess the
appropriate skills to perform the work as described in the
Research Proposal.
(iii) The Millipore personnel assigned to the Projects hereunder
shall exercise good faith and commercially reasonable efforts
to complete the work set forth in the applicable Research
Proposal.
(iv) When the Research Proposal for a given year has been mutually
executed, Millipore shall endeavor to maintain the assigned
people to the particular Project for that year. Millipore,
does, however, reserve the right to reassign individuals in
exceptional circumstances. In such a case, Mykrolis shall have
the right to refuse the re-assignment, provided that it
notifies Millipore within 10 days of the date Mykrolis learns
of the re-assignment, and terminate the particular Project
immediately with no further financial
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obligation other than to pay for all research done until the
date of termination.
D. Costs
(i) The cost to Mykrolis for the services of the Millipore
personnel provided in this Agreement (the "Research Costs")
shall approximate Millipore's costs and shall be agreed upon by
the parties within sixty (60) days following the execution of
this Agreement.
(ii) For each individual assigned to a Project, Mykrolis shall pay
Millipore for the percentage of that individual's time
allocated to such Project, as set forth in the applicable
Research Proposal.
(iii) The amount set forth in subsection (i) above which Mykrolis
pays to Millipore shall include not only the services of the
Millipore research personnel assigned to the Projects but also
all laboratory and office space required to conduct the
research activities hereunder. Such laboratory and office space
shall be in quality and amount substantially similar to that
provided to other Millipore personnel performing research for
Millipore.
(iv) Any extra equipment, materials, and Project related travel
required to perform the Projects shall not be included in the
rate set forth in subsection (i) above and shall be Mykrolis'
financial responsibility. Accordingly, all such equipment,
materials and Project related travel expenses required to
perform the research shall be initially paid for by Millipore
but Millipore shall be reimbursed by Mykrolis for such expenses
at cost on a quarterly basis as per Section 5 of this Agreement
(Millipore shall provide appropriate documentation upon
request).
(v) During the term of this Agreement, all costs hereunder shall be
increased, on an annual basis, 5% over the prior year's costs.
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E. Early Termination of Projects
Mykrolis may terminate any Project before its scheduled conclusion.
Its only financial obligation upon such early termination shall be to
pay for all Millipore research personnel assigned to such project to
the end of the current contract year as described in the applicable
Research Proposal (alternatively, if the Research Proposal states that
the Project ends before the end of the current contract year, then
Mykrolis' obligation ends sooner as described in the Research
Proposal). Notwithstanding the above, Millipore shall exercise its
best efforts to mitigate Mykrolis' financial obligations by attempting
to assign the Millipore personnel affected by such early termination
to a Millipore research project. When, and if, the Millipore
personnel have been assigned to a Millipore research project,
Millipore shall inform Mykrolis, and Mykrolis' obligations with
respect to paying for that particular Millipore employee shall cease.
This provision shall not apply to any Mykrolis Project termination
under Section 1(C)(iv) above.
F. The parties may by mutual written agreement add projects to this
Agreement beyond those set forth in Section 1(A) above.
2. Melt Casting Projects
Mykrolis shall develop the capacity to perform its melt casting research
projects with its own personnel and its own facilities. Until such time as
Mykrolis is able to do so, Millipore shall provide the following assistance
to Mykrolis:
A. Space
Laboratory and office space ("Space") for 5 Mykrolis research
personnel assigned to Melt Casting projects. The parties contemplate
that the Mykrolis employees shall be Xxxxx Xxx, Xxxx Xxxxx, Xxxxx
Xxxxx, Xxxxx Xxxxxx and a senior chemical engineer to be hired by
Mykrolis. Such Mykrolis employees shall reside at the facilities of
Millipore's central research group. Millipore shall provide adequate
Space so that such Mykrolis employees may conduct the Melt Casting
research projects. Such Space shall be in quality and amount,
substantially similar to the Space provided to Millipore's research
personnel. The cost to Mykrolis for providing the Space described
above shall be as specified in the in the Research Costs. Any
materials and extra equipment required to perform the research herein
shall
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not be included in this rate and shall be Mykrolis' responsibility.
Accordingly, Mykrolis shall purchase and own such materials and
equipment. While the parties expect that the Mykrolis research
personnel will require the Space for a period of approximately one
year, Millipore shall make such Space available for a maximum of two
years.
B. To further facilitate Mykrolis' development of its melt casting
research capability, Millipore shall, for the first year of this
Agreement, make 50% of K.S. Cheng's time available to Mykrolis.
Mykrolis shall utilize Xx. Xxxxx to assist in its efforts to develop
an independent melt casting research capability. The cost of Xx.
Xxxxx'x services to Mykrolis shall be as specified in the Research
Costs.
C. During the term of this Agreement, all costs hereunder shall be
increased, on an annual basis, 5% over the prior year's costs.
3. Ownership Rights In Millipore's Work Product
A. (i) The parties acknowledge that Millipore possesses a significant
foundation of know-how, technology, trade secrets, and
expertise in the area of chemical surface modifications on
polymeric membrane surfaces ("the Foundation").
(ii) The parties contemplate that much of the technology of the
Foundation will be utilized in the Projects. Notwithstanding
anything below in this section to the contrary, all technology
which is part of the Foundation which is utilized in the
Projects remains the property of Millipore. Mykrolis, however,
shall have the royalty free right to utilize such Foundation
technology as contemplated by the particular Project in the
Mykrolis Field of Use as defined in the Master Trade Secret and
Know-How Agreement.
(iii) With respect to any know-how developed in the course of a
Project and relating to the Foundation, each party shall have
the exclusive right to utilize such know-how in their
respective Fields of Use as defined in the Master Trade Secret
and Know-How Agreement.
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B. Millipore hereby agrees that all works of authorship, including the
design and implementation of any computer program, developed by the
Millipore personnel while assigned to Mykrolis and arising out of
their work on a Project shall be deemed "work for hire" as that term
is defined under the United States Copyright Laws and all rights in
and to such works of authorship developed by Millipore shall be the
sole property of Mykrolis.
C. Millipore hereby covenants and agrees that it shall, during the term
of this Agreement, and for a period of six (6) months thereafter,
cause the Millipore personnel to promptly report and disclose to
Mykrolis, all inventions ("Inventions") made or conceived by the
Millipore Employees while assigned to Mykrolis and arising out of
their work on a Project and shall assign to Mykrolis its entire
interest throughout the world in all Inventions referred to herein.
As used herein, the term "Invention" means an idea, development, or
technology that is patentable under U.S. patent law.
D. Notwithstanding the above, Millipore shall retain an exclusive,
worldwide, right to make, use, sub-license, or sell any product
incorporating such Invention in the Millipore Field (as that term is
defined in the Master Trade Secret and Know-How Agreement). In
consideration for such right, Millipore shall pay Mykrolis a 5%
royalty on all net sales of any such product for a period of 10 years
from the effective date of this Agreement. Such royalty shall be paid
on a quarterly basis within 45 days after the end of each Millipore
fiscal quarter. This payment shall be accompanied by sufficient
information so that Mykrolis can determine how the calculation of net
sales was made. As used above, "net sales" shall mean cash
collections from the invoiced selling price of those products less
normal trade discounts, commissions paid to independent agents or
distributors, returns or credits, excise and sales taxes.
E. In connection with disclosing the Inventions, Millipore shall
cooperate fully with Mykrolis' attorneys in obtaining patents covering
these Inventions, should Mykrolis in fact choose to file such
applications. To the extent such cooperation can be completed within
the applicable time allocated for the Millipore personnel assigned to
such Project, such cooperation is included in the costs set forth in
Section 1(D) above. If additional time is needed to complete such
cooperation, then Mykrolis shall pay Millipore the applicable Research
Costs (during the term of this
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Agreement, such costs shall increase, on an annual basis, 5% over the
prior year's costs) for such additional time. Copies of all drafts and
the final application shall be provided to the Millipore inventors and
the Millipore Patent Counsel for review and consent before filing.
Finally, if patenting a particular Invention would compromise the
confidentiality of a Millipore trade secret, which is part of the
Foundation, then, such patent will only be filed with the mutual
written consent of the parties. Millipore shall promptly inform
Mykrolis if it believes that its trade secrets would be compromised by
such filing.
4. Maintenance of Records
Millipore shall make and maintain adequate and current records of all
Inventions falling within the scope of this Agreement and of all work
performed by it under this Agreement; and agrees to make them available to
Mykrolis.
5. Payments
With respect to all compensation due hereunder, Millipore shall invoice
Mykrolis on a quarterly basis. Such invoice shall be for the research
performed under Section 1, the Space, (including services provided under
Section 2(B)) and any equipment, materials, Project related travel or other
expenses contemplated by this Agreement. Mykrolis shall make payment to
Millipore within 45 days of receipt of the invoice. The invoice shall
include sufficient information and detail so that Mykrolis can reasonably
determine its accuracy. Late payments shall bear interest at the lesser of
12% or the maximum rate allowed by law.
6. Term and Termination
A. The term of this Agreement shall be for 5 years commencing on the
effective date. Mykrolis, however, may terminate this Agreement for
its convenience prior to its normal expiration by providing Millipore
with 12 months written notice of its desire to terminate. In
addition, Millipore may terminate this Agreement upon 30 days written
notice if Mykrolis is acquired, directly or indirectly, by a company
which competes directly with Millipore. Also, Mykrolis may terminate
this Agreement upon 30 days notice if Millipore is acquired, directly
or indirectly, by a company which competes directly with Mykrolis.
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B. Either party may terminate this Agreement, by written notice to the
other party:
(i) upon the material failure of the other party to observe, keep
or perform any of the covenants, terms or conditions herein, if
such default continues for 30 days after written notice by the
other party,
(ii) upon the institution by or against either party of insolvency,
receivership or bankruptcy proceedings or any other proceedings
for the settlement of its debts.
(iii) upon either party's assignment for the benefit of creditors,
(iv) upon either party's dissolution or ceasing to do business.
C. This Agreement, the Master Separation Agreement and all other
Ancillary Agreements may be terminated at any time prior to the IPO
Closing Date by and in the sole discretion of Millipore without the
approval of Mykrolis. This Agreement may be terminated at any time
after the IPO Closing Date and before the Distribution Date by mutual
consent of Millipore and Mykrolis. In the event of termination
pursuant to this Section 6(C), no party shall have any liability of
any kind to the other party.
7. Confidentiality
A. During the term of this Agreement, each party will be disclosing
confidential information to the other party and learning, observing,
or otherwise receiving the other party's confidential information.
The parties shall presume that all information regarding the parties'
respective research projects is confidential information. In
addition, this confidential information shall be the property of the
party on whose behalf such research is performed. The parties agree
to respect the other party's confidential information, to not disclose
it to any third parties, and to not use it for any purpose other than
as contemplated by this Agreement.
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B. Millipore agrees that all work performed by the Millipore personnel
while assigned to the Mykrolis Project shall be considered the
confidential information and property of Mykrolis.
C. This Agreement imposes no obligation upon either party with respect to
information that: (a) was developed after the date of this agreement
and was in the possession of the receiving party before receipt from
the disclosing party; (b) is or becomes a matter of public knowledge
through no fault of the receiving party; (c) is rightfully received by
the receiving party from a third party without a duty of
confidentiality; (d) is disclosed by the disclosing party to a third
party without a duty of confidentiality; (e) is independently
developed by the receiving party; or (f) is necessary to be disclosed
in a judicial or administrative process.
8. Limitation Of Liability; No Warranties for Intellectual Property
A. NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOSS
OF DATA, LOSS OF USE, COST OF COVER, BUSINESS INTERRUPTION OR OTHER
SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES,
HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, ARISING FROM THE
PERFORMANCE OF, OR RELATING TO, THIS AGREEMENT.
B. EACH PARTY ACKNOWLEDGES AND AGREES THAT ALL TECHNOLOGY, INVENTIONS AND
KNOW-HOW LICENSED OR ASSIGNED HEREUNDER ARE PROVIDED ON AN "AS IS" and
"WHERE IS" BASIS AND THAT NEITHER PARTY NOR ANY OF ITS SUBSIDIARIES
MAKE ANY REPRESENTATIONS OR EXTENDS ANY WARRANTIES WHATSOEVER,
EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT THERETO INCLUDING WITHOUT
LIMITATION ANY IMPLIED WARRANTIES OF TITLE, ENFORCEABILITY OR NON-
INFRINGEMENT. Without limiting the generality of the foregoing,
Millipore makes no warranty or representation as to the validity of
any such know-how, technology, or inventions; and both parties make no
warranty or representation that any use of any such know-how,
technology, or inventions with respect to any product or service will
be free from infringement of any rights of any third party.
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9. Force Majeure
Each party will be excused for any failure or delay in performing any of
its obligations under this Agreement, if such failure or delay is caused by
Force Majeure. "Force Majeure" means any act of God or the public enemy,
any accident, explosion, fire, storm, earthquake, flood, or any other
circumstance or event beyond the reasonable control of the party relying
upon such circumstance or event.
10. Dispute Resolution
A. Use and Initiation of Procedure. In the event of a dispute between
the parties arising out of or related to this Agreement (the
"Dispute"), the parties hereto agree to use the alternative dispute
resolution procedures specified in this section (the "Procedure") in
good faith in order to resolve such dispute. The Procedure may be
modified by written agreement of the parties at the time the Dispute
arises. A party seeking to initiate the Procedure shall give written
notice to the other party, describing briefly the nature of the
dispute and its claim and identifying an individual with authority to
settle the dispute on its behalf. The party receiving such notice
shall have five (5) days within which to designate, in a written
notice given to the initiating party, an individual with authority to
settle the dispute on its behalf. Neither of such authorized
individuals shall have had direct substantive involvement in the
matters involved in the Dispute.
B. Unassisted Settlement. The authorized individuals shall make such
investigation as they deem appropriate and thereafter promptly (but in
no event later than thirty (30) days from the date of the initiating
party's notice) shall commence discussions concerning resolution of
the Dispute. If the Dispute has not been resolved within thirty (30)
days from the commencement of discussions, it shall be submitted to
alternative dispute resolution ("ADR") in accordance with the
provisions of this Section 10 hereof.
C. Selection of Neutral. The parties shall have ten (10) days following
the submission of the Dispute to ADR in accordance with Section 10(B)
above to agree upon a mutually-acceptable person not affiliated with
either of the parties (the "Neutral"). If no Neutral has been
selected within such time, the parties agree jointly to request the
American Arbitration Association, the Center for Public Resources, or
another mutually agreed-upon provider of neutral services to supply
within ten (10) days a list
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of potential Neutrals with qualifications as specified by the parties
in the joint request. Within five (5) days of receipt of the list, the
parties shall independently rank the proposed candidates, shall
simultaneously exchange rankings, and shall select as the Neutral the
individual receiving the highest combined ranking who is available to
serve.
D. Time and Place for ADR. In consultation with the Neutral, the parties
shall promptly designate a mutually convenient time and place for the
ADR (and unless circumstances require otherwise, such time to be not
later than forty-five (45) days after selection of the Neutral).
E. Exchange of Information. In the event either of the parties has
substantial need for information in the possession of the other party
in order to prepare for the ADR, the parties shall attempt in good
faith to agree on Procedures for the expeditious exchange of such
information, with the help of the Neutral if required.
F. Summary of Views. One week prior to the first scheduled session of
the ADR, each party shall deliver to the Neutral and to the other
party a concise written summary of its views on the matter in Dispute.
G. Staffing the ADR. In the ADR, each party shall be represented by the
authorized individual and by counsel. In addition, each party may
bring such additional persons as needed to respond to questions,
contribute information and participate in the negotiations, the number
of such additional persons to be agreed upon by the parties in
advance, with the assistance of the Neutral, if necessary.
H. Conduct of ADR. The parties, in consultation with the Neutral, will
agree upon a format for the meetings, designed to assure that both the
Neutral and the authorized individuals have an opportunity to hear an
oral presentation of each party's views on the matter in Dispute, and
that the authorized parties attempt to negotiate a resolution of the
matter in Dispute, with or without the assistance of counsel or
others, but with the assistance of the Neutral. To this end, the
Neutral is authorized to conduct both joint meetings and separate
private caucuses with the parties. The Neutral will keep confidential
all information learned in private caucus with either party unless
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specifically authorized by such party to make disclosure of the
information to the other party.
I. The Neutral's Views. The Neutral (i) shall, unless requested not to
do so by both parties, provide his opinion to both parties on the
probable outcome should the matter be litigated, and (ii) shall make
one or more recommendations as to the terms of a possible settlement,
upon any conditions imposed by the parties (including, but not limited
to, a minimum and maximum amount). The Neutral shall base his
opinions and recommendations on information available to both parties,
excluding such information as may be disclosed to him by the parties
in confidence. The opinions and recommendations of the Neutral shall
not be binding on the parties.
J. Termination of Procedure. The parties agree to participate in the ADR
in good faith to its conclusion (as designated by the Neutral) and not
to terminate negotiations concerning resolution of the matters in
Dispute until at least ten (10) days thereafter. Each party agrees
not to commence any other proceeding or to seek other remedies prior
to the conclusion of the ten-day post-ADR negotiation period;
provided, however, that either party may commence litigation within
five (5) days prior to the date after which the commencement of
litigation could be barred by an applicable statute of limitations or
in order to request an injunction to prevent irreparable harm, in
which event, the parties agree (except as prohibited by court order)
to nevertheless continue to participate in the ADR to its conclusion.
K. Fees of Neutral; Disqualification. The fees of the Neutral shall be
shared equally by the parties. The Neutral shall be disqualified as a
witness, consultant, expert or counsel for either party with respect
to the matters in Dispute and any related matters in any subsequent
litigation or other proceeding with respect to the Dispute.
L. Confidentiality. The parties agree that the Procedure and the ADR are
compromise negotiations for purposes of the Federal Rules of Evidence
and the Rules of Evidence of any state of competent jurisdiction. The
entire of the Procedure and the ADR are confidential, and no
stenographic, visual or audio record shall be made. All conduct,
statements, promises, offers, views and opinions, whether oral or
written, made in the course of the Procedure or the ADR by either of
the parties,
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their agents, employees, representatives, or other invitees and by the
Neutral (who will be the parties' joint agent for purposes of these
compromise negotiations) are confidential and shall, in addition and
where appropriate, be deemed to be work product and privileged. Such
conduct, statements, promises, offers, views and opinions shall not be
discoverable or admissible for any purposes, including impeachment, in
any litigation or other proceeding involving the parties, and shall
not be disclosed to anyone not an agent, employee, expert, witness, or
representative of either of the parties; provided, however, that
evidence otherwise discoverable or admissible is not excluded from
discovery or admission as a result of its use in the ADR.
M. Arbitration. Any Dispute which the parties cannot resolve through
mediation within ninety (90) days following the commencement of the
Procedure, unless otherwise mutually agreed, shall be submitted to
final and binding arbitration under the then current Commercial
Arbitration Rules of he American Arbitration Association ("AAA"), by
three (3) arbitrators in Boston, Massachusetts. Such arbitrators
shall be selected by the mutual agreement of the parties or, failing
such agreement, shall be selected according to the aforesaid AAA
rules. The arbitrators will be instructed to prepare and deliver a
written, reasoned opinion stating their decision within thirty (30)
days of the completion of the arbitration. The prevailing party in
such arbitration shall be entitled to expenses, including costs and
reasonable attorneys' and other professional fees, incurred in
connection with the arbitration (but excluding any costs and fees
associated with prior ADR, negotiation or mediation). The decision of
the arbitrator shall be final and non-appealable and may be enforced
in any court of competent jurisdiction. The use of any ADR procedures
will not be construed under the doctrine of laches, waiver or estoppel
to adversely affect the rights of either party.
N. Continuity of Service and Performance. Unless otherwise agreed in
writing, the parties will continue to provide service and honor all
other commitments under this Agreement and each Ancillary Agreement
during the course of dispute resolution pursuant to the provisions of
this Article 8 with respect to all matters not subject to such
dispute, controversy or claim.
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11. Governing Law
This Agreement shall be construed in accordance with and all Disputes
hereunder shall be governed by the laws of the Commonwealth of
Massachusetts as applied to transactions taking place wholly within
Massachusetts between Massachusetts residents. The Superior Court of
Middlesex County and/or the United States District Court for the District
of Massachusetts shall have jurisdiction and venue over all Disputes
between the parties that are permitted to be brought in a court of law
pursuant to Article 10 above.
12. Entire Agreement
This Agreement, the Separation and Distribution Agreement and the other
Ancillary Agreements (as defined in the Separation and Distribution
Agreement) and the Exhibits and Schedules referenced or attached hereto and
thereto constitute the entire agreement between the parties with respect to
the subject matter hereof and thereof and shall supersede all prior written
and oral and all contemporaneous oral agreements and understandings with
respect to the subject matter hereof and thereof. To the extent there is a
conflict between this Agreement and the General Assignment and Assumption
Agreement between the parties, the terms of this Agreement shall govern.
13. Notices
Any notices or other communications required or permitted to be given or
delivered hereunder shall be in writing and shall be sufficiently given if
delivered personally, express mail or sent by first class mail, postage
prepaid, to the following:
For Millipore:
Xxxxx Xxxx
Corporate Vice President, Technology Operations
Millipore Corporation
00 Xxxxx Xxxx
Xxxxxxx, XX 00000
Copy to:
General Counsel
Millipore Corporation
00 Xxxxx Xxxx
Xxxxxxx, XX 00000
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For Mykrolis:
Xxxx-Xxxx Pandraud
Mykrolis Corporation
Patriots Park
Xxxxxxx, XX 00000
Copy to:
General Counsel
Mykrolis Corporation
Patriots Park
Xxxxxxx, XX 00000
14. Assignment
Mykrolis may not, directly or indirectly, in whole or in part, whether by
operation of law or otherwise, assign or transfer this Agreement, without
the prior written consent of Millipore, and any attempted assignment,
transfer or delegation without such prior written consent shall be voidable
at the sole option of Millipore. Notwithstanding the foregoing, Mykrolis
(or its permitted successive assignees or transferees hereunder) may assign
or transfer this Agreement as a whole without consent to a person that
succeeds to all or substantially all of the business or assets of Mykrolis
as long as such Person agrees to accept all the terms and conditions set
forth herein. Without limiting the foregoing, this Agreement will be
binding upon and inure to the benefit of the parties and their permitted
successors and assigns.
15. Further Assurances
Each party agrees to execute and deliver as reasonably requested by the
other party all further instruments and documents, and will take all
further action, that may be necessary or desirable to effectuate the
parties' intent hereunder.
16. Severability
If any term or other provision of this Agreement is determined by a court,
administrative agency or arbitrator to be invalid, illegal or incapable of
being enforced by any rule or law or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force
and effect so long as the economic or legal substance of the transactions
contemplated hereby is not affected in any manner materially adverse to
either party. Upon such
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determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of
the parties as closely as possible in an acceptable manner to the end
that the transactions contemplated hereby are fulfilled to the fullest
extent possible.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be executed
by their duly authorized representatives and to be effective as of the date and
year first above written.
MILLIPORE CORPORATION MYKROLIS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxx-Xxxx Pandrand
------------------------ ----------------------
Xxxxxxx X. Xxxxxx Xxxx-Xxxx Pandrand
Its: Executive Vice President Its: President
------------------------ ----------------------
Date: Date:
------------------------ ----------------------
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Exhibit A:
High Performance Filter
Further develop, scale up and RTM a new pore size UPE membrane with a specific
surface modification for an enhanced particle retention in low pH
Microelectronics process streams.
Orion
A Technology Development Project whereby novel surface chemistries are
conceived, synthesized and evaluated for their ability to impart stable
hydrophilic properties to PTFE membranes.
Non-sieving Technology
A Technology Development Project whereby mechanisms, methods and materials are
developed for identifying and testing surface chemistries.
QuickChange II
A development project to extend the QuickChange product line to new high flow
membranes. The project will encompass the development of a surface modification
process.
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