1
Exhibit 10.6
CONFIDENTIAL DISCLOSURE & LICENSE AGREEMENT
This Confidential Disclosure & License Agreement (as such
agreement may be amended from time to time, the "CDL Agreement") is entered into
as of March 28, 2000 by and between Cabot Corporation, a Delaware corporation
("Cabot") and Cabot Microelectronics Corporation, a Delaware corporation
("CMC"). Capitalized terms used and not otherwise defined herein shall have the
meanings ascribed to such terms in Article 1 hereof.
WHEREAS, in connection with the contribution of substantially all of
the assets and liabilities of the MMD BUSINESS (as hereinafter defined) by Cabot
to its subsidiary, CMC, and the separation of such MMD BUSINESS from Cabot's
other businesses, Cabot and CMC desire to enter into this CDL Agreement
concerning the obligations of the parties with respect to confidential or
proprietary information, intellectual property, and other matters that are set
forth below.
NOW, THEREFORE, in consideration of the mutual promises contained
herein, and intending to be legally bound, the parties agree as follows:
DEFINITIONS:
For all purposes of this CDL Agreement, and except as otherwise
expressly provided, capitalized terms used herein shall have the following
meanings:
"AFFILIATE" of any specified Person means any other Person directly or
indirectly Controlling, Controlled by, or under common Control with, such
specified Person; provided, however, that for purposes of this CDL Agreement,
(i) Cabot and its subsidiaries (other than CMC and its subsidiaries) shall not
be considered Affiliates of CMC and (ii) CMC and its subsidiaries shall not be
considered Affiliates of Cabot.
"ANCILLARY AGREEMENTS" shall have the same meaning as set forth in the
Master Separation Agreement, by and among the parties hereto, dated the date
hereof (the "Master Separation Agreement").
"MMD ASSETS" shall have the same meaning as set forth in the Master
Separation Agreement.
"CABOT BUSINESSES" means the businesses conducted by Cabot and/or any
of its Affiliates at any time on or before the Contribution Date, but excluding
the MMD Business.
"CABOT CONFIDENTIAL INFORMATION" means confidential or proprietary
information relating to the Cabot Businesses, including, but not limited to, any
unpublished Technology, unpublished patent applications, and other confidential
or proprietary technical and business information relating to the Cabot
Businesses. Examples of Cabot Confidential Information include, without
limitation: trade secrets and other proprietary or confidential information of
Cabot relating to the Cabot Businesses; trade secrets and other proprietary or
confidential information of any other person entrusted to Cabot in connection
with the Cabot
2
Businesses; and trade secrets and other proprietary or confidential information
relating to the Cabot Businesses developed by any employee of the MMD Business
prior to the Contribution Date or to which any employee of the MMD Business was
provided access on or prior to the Contribution Date.
"CMP" means chemical mechanical polishing consumables for use in the
semiconductor, electronic, rigid disk and magnetic head, and flat panel display
industries, such as polishing slurries, polishing pads, cleaning compositions,
precursor compositions, and related consumables.
"CONTRIBUTION DATE" means March 28, 2000.
"CONTROL" means the possession, direct or indirect, of the power to
direct or cause the direction of the management of the policies of a Person,
whether through the ownership of voting securities, by contract or otherwise.
"CONTROLLING" and "CONTROLLED" have the corollary meanings ascribed thereto.
"COPYRIGHTS" means all registered and unregistered copyrights and
applications therefor.
"MMD BUSINESS" means the business conducted by the Microelectronics
Materials Division of Cabot at any time on or before the Contribution Date,
either directly or indirectly through Cabot Carbon Ltd. and Cabot Specialty
Chemicals International Corporation, including, but not limited to, (i) all
business operations whose financial performance is reflected in the financial
statement (including the notes thereto) for the period ended September 30, 1999,
as set forth in the Registration Statement on form S-1, Reg. No. 333-95093, as
it may be amended (the "CMC Financial Statements") and (ii) all business
operations initiated or acquired by the Microelectronics Materials Division of
Cabot after the date of the CMC Financial Statements.
"MMD CONFIDENTIAL INFORMATION" means confidential or proprietary
information relating exclusively to the MMD Business, including, but not limited
to, any unpublished Technology, unpublished patent applications, and other
confidential or proprietary technical and business information relating
exclusively to the MMD Business. Examples of MMD Confidential Information
include, without limitation: trade secrets and other proprietary or confidential
information transferred to CMC as part of the Assets; and trade secrets and
other proprietary or confidential information of any other person entrusted to
Cabot solely in connection with the MMD Business on or prior to the Contribution
Date.
"PATENTS" means all patents and patent applications (including any
divisions, continuations, continuations-in-part, reexaminations, extensions,
renewals or reissues thereof), design registrations, utility models and similar
rights and applications therefor.
"PERSON" means an individual, partnership, limited liability company,
joint venture, corporation, trust, unincorporated association, any other entity,
or any government or any department or agency or other unit thereof.
"TECHNOLOGY" means all technology and know-how, including without
limitation,
-2-
3
technical information, trade secrets and knowledge, design rights (other than
statutory registrations), whether included in or derived from specifications,
manuals, notebooks, reports, documents, blue prints, inventions, drawings,
formulae, procedures, processes, devices, software and source code and
documentation therefor, flow charts, recording media, and other intangible,
tangible and electronic embodiments of information.
1. CONFIDENTIALITY
1.1 Cabot agrees to keep confidential and not disclose, and shall cause its
Affiliates to keep confidential and not disclose, to any third party and not to
use for any purpose not authorized by CMC, in whole or in part, any MMD
Confidential Information.
1.2 CMC agrees to keep confidential and not disclose, and to cause its
Affiliates to keep confidential and not disclose, to any third party and not to
use for any purpose not authorized by Cabot, in whole or in part, any Cabot
Confidential Information.
1.3 For purposes of this CDL Agreement, Cabot Confidential Information and MMD
Confidential Information do not include, and a party and a party's Affiliates (a
party and Affiliates of the party being referred to as the "receiving party")
will have no obligations under this CDL Agreement, with respect to any
information of the other party or any Affiliate of the other party (the other
party and Affiliates of the other party being referred to as the "disclosing
party") which:
(i) in the case of Cabot, is known to Cabot from a source other than
the MMD Business or CMC, as evidenced by competent proof thereof; or
(ii) in the case of CMC, is known to CMC from a source other than Cabot
Businesses, as evidenced by competent proof thereof; or
(iii) is or becomes publicly known through no wrongful act of the
receiving party (in which event the receiving party's obligations under this CDL
Agreement in respect thereto shall terminate on the date such information enters
the public domain); or
(iv) is or was rightfully received by the receiving party from a third
party without violation of any obligations of confidentiality and/or use
restrictions owed by the third party to the disclosing party or any other party;
or
(v) is disclosed by the disclosing party to a third party without
restrictions on the third party's right to use or disclose such information; or
(vi) is independently developed by employees or consultants of the
receiving party without use of or reference to the disclosing party's
proprietary information; or
(vii) is approved for release by the prior written authorization of the
disclosing party.
-3-
4
In addition, if the receiving party is requested or required (by oral questions,
interrogatories, request for information or documents, subpoena, civil
investigative demand, similar process or otherwise) to disclose any Confidential
Information of the disclosing party, such receiving party will provide prompt
notice to the disclosing party on such request(s) so that such disclosing party
may seek any appropriate protective order and/or waive compliance with the
provisions of this CDL Agreement. Failing the entry of a protective order or the
receipt of a waiver hereunder, if the receiving party is in the written opinion
of its attorneys legally required to disclose any of the disclosing party's
Confidential Information under pain of liability for contempt or other material
censure or material penalty, the receiving party may disclose such Confidential
Information without liability hereunder upon notice to the disclosing party.
Notwithstanding the foregoing, Cabot is permitted to disclose MMD Confidential
Information as required in litigation that is pending as of the Contribution
Date.
2. ANCILLARY LICENSE GRANT BY CABOT
2.1 As of the Contribution Date, Cabot hereby grants to CMC and its Affiliates
(but only so long as an Affiliate of CMC) for CMP a fully paid-up, world-wide,
non-exclusive license to only such Copyrights, Patents, and Technology of Cabot
that:
(x) are not included within the MMD Assets, AND,
(y) (a) are owned by Cabot on the Contribution Date,
(b) do NOT relate to (i) treated or untreated fumed metal
oxide particles or the manufacture or treatment of
fumed metal oxide particles; or (ii) cesium chemicals
or other products of Cabot's Performance Materials
Division or the manufacture thereof;
(c) would be infringed in the case of Copyrights and
Patents, or misappropriated in the case of
Technology, by the manufacture, treatment,
processing, handling, marketing, sale, or use of any
products (excluding treated or untreated fumed metal
oxide particles and cesium chemicals or other
products of Cabot's Performance Materials Division)
of the type sold or offered for sale by the MMD
Business as of the Contribution Date, and
(d) were used by Cabot in connection with activities
undertaken by the MMD Business on or prior to the
Contribution Date.
(The license granted in this Subsection 2.1 is hereinafter also referred to as
the "Ancillary License").
2.2 All trade secrets and other confidential or proprietary Technology,
unpublished Copyrights, and unpublished patent applications licensed to CMC and
its Affiliates pursuant to the Ancillary License that fall within the definition
of Cabot Confidential Information shall
-4-
5
remain subject to the provisions of Article 1 of this CDL Agreement.
2.3 Cabot shall not assert, and shall cause its Affiliates not to assert, any of
the Patents or copyrights in published copyrightable works licensed to CMC and
its Affiliates under the Ancillary License against their respective customers
with respect to their customers' use of CMP products manufactured and/or
supplied by CMC or any of its Affiliates pursuant to the Ancillary License.
2.4 The Ancillary License does not include the right to grant sublicenses to
others without the prior written authorization of Cabot. Any sublicense(s)
granted by CMC or any of its Affiliates in violation of this provision shall be
void, and the granting or any attempted grant by CMC or any of its Affiliates of
any sublicense(s) in violation of this provision shall in particular constitute
a material breach of this CDL Agreement by CMC.
2.5 Notwithstanding Section 8.6 herein, the rights of CMC and its Affiliates
pursuant to this Ancillary License are personal to CMC and its Affiliates and
shall not be assignable without the prior written authorization of Cabot.
2.6 In no event shall the Ancillary License be used in connection with or
support of any activity that is competitive with any activity of Cabot.
3. LICENSE GRANT TO CABOT BY CMC
3.1 As of the Effective Date of this CDL Agreement, CMC hereby grants to Cabot
and its Affiliates (but only so long as an Affiliate of Cabot) a fully paid-up,
worldwide, non-exclusive license to Copyrights, Patents, and Technology that are
among the MMD Assets, that would be infringed by the manufacture, treatment,
processing, handling, marketing, sale, or use of any products or services sold
or offered for sale by Cabot or any of its Affiliates for applications other
than CMP.
(The license granted in this Subsection 3.1 is hereinafter also referred to as
the "Cabot License").
3.2 All trade secrets and other confidential or proprietary Technology,
unpublished Copyrights, and unpublished patent applications licensed to Cabot
and its Affiliates pursuant to the Cabot License that fall within the definition
of MMD Confidential Information shall remain subject to the provisions of
Article 1 of this CDL Agreement.
3.3 CMC shall not assert, and shall cause its Affiliates not to assert, any of
the Patents or copyrights in published copyrightable works licensed to Cabot
under the Cabot License against Cabot's customers with respect to their
customers' use of non-CMP products manufactured and/or supplied by Cabot or its
Affiliates pursuant to the Cabot License.
3.4 The Cabot License does not include the right to grant sublicenses to others
without the prior written authorization of CMC. Any sublicense(s) granted by
Cabot or any of its Affiliates in violation of this provision shall be void, and
the granting or any attempted grant by Cabot or
-5-
6
any Affiliate of Cabot of any sublicense(s) in violation of this provision shall
in particular constitute a material breach of this CDL Agreement by CABOT.
3.5 Notwithstanding Section 8.6 herein, the rights of Cabot and its Affiliates
pursuant to this Cabot License are personal to Cabot and its Affiliates and
shall not be assignable without the prior written authorization of CMC.
3.6 In no event shall the Cabot License be used in connection with or support of
any activity that is competitive with any activity of CMC.
4. COOPERATION
4.1 The parties will do everything that is necessary or appropriate to conform
to the purpose and spirit of this CDL Agreement, including, without limitation,
cooperating with the other party in connection with the maintenance, enforcement
and protection of the Copyrights, Patents and Technology, and executing any and
all documents or instruments, or obtaining any consents, in order to assign,
transfer, perfect, record, maintain, enforce or otherwise carry out the intent
of the terms of this CDL Agreement.
4.2 Each party will take appropriate measures to assure the confidentiality and
non-use obligations and other applicable obligations of a party pursuant to this
CDL Agreement are met by its legal representatives, members of supervisory
bodies, management, employees or other agents.
5. CABOT PARTICLE AND PERFORMANCE MATERIALS TECHNOLOGY
In addition to its obligations pursuant to Section 1 above, CMC agrees, and
shall cause its Affiliates to agree, not to use any information in its
possession as of the Contribution Date concerning (i) Cabot's fumed metal oxide
products (treated and untreated) and related manufacturing or treatment
processes; (ii) cesium chemicals and other products of Cabot's Performance
Materials Division and related manufacturing processes; and (iii) any
information concerning the raw materials, suppliers, and/or equipment used in
any such processes, including product specifications, to manufacture or have
manufactured (a) treated or untreated fumed metal oxide particles and/or (b)
cesium chemicals and other products of Cabot's Performance Materials Division.
CMC further agrees, and shall further cause its Affiliates to agree, not to
disclose same to any third party. The obligations of CMC and its Affiliates
pursuant to this Section 5 shall apply to the foregoing information without
regard to whether or not it falls within the exceptions set forth in Subsection
1.3 above.
6. DISPERSION INTELLECTUAL PROPERTY
6.1 Cabot hereby agrees to assign to CMC an undivided one-half joint interest in
and to Cabot's rights in the Patents listed in Schedule 6.1 hereto ("Dispersion
Patents") (including the
-6-
7
right, subject to Section 6.10 below, to enforce Dispersion Patents, including
the right to xxx for past, present, and future violations thereof, and to seek
and obtain relief and judgment therefor and/or to settle any such claims and to
collect monies owed in connection with such judgments or settlements). Subject
to the parties' respective undertakings of Sections 6.9 and 6.10, each of Cabot
and CMC shall enjoy its rights as a joint owner of the Dispersion Patents in
each applicable country without the consent of, and without accounting to, the
other joint owner.
6.2 Cabot hereby agrees to assign to CMC an undivided one-half joint interest in
and to Cabot's rights in the Technology owned by Cabot which relates to fumed
metal oxide dispersions, the preparation of fumed metal oxide dispersions,
quality control procedures and other testing and analytical procedures
associated therewith, handling and packaging processes and procedures for such
dispersions and raw materials, ISO documentation, and other information,
processes, specifications, data, formulae and formulations (including, e.g., the
identity and amounts of the dispersion medium, fumed metal oxide(s), other
ingredients included for the purpose of preparing stable, clean, fumed metal
oxide dispersions (e.g., stabilizers, surfactants, acid, base, biocide, etc.))
used in or relating to fumed metal oxide dispersions made by Cabot (including
those made by the MMD Division thereof) on or prior to the Contribution Date
("Dispersion Technology"). As used herein, "Dispersion Technology" does not
include ingredients and process information, the sole purpose and function of
which is specific to a particular end-use application for the fumed metal oxide
dispersion. Subject to the parties' respective undertakings of Sections 6.9 and
6.10, each of Cabot and CMC shall enjoy its rights as a joint owner of
Dispersion Technology without the consent of, and without accounting to, the
other joint owner.
6.3 As soon as reasonably practicable after the date of this CDL Agreement, CMC
will deliver to Cabot, and Cabot will deliver to CMC, copies of all tangible and
electronic documentation of Dispersion Technology within its possession or
control (including, without limitation, that within the possession of Davies)
that is reasonably required to use, and/or to develop and commercialize fumed
metal oxide dispersions made with, the Dispersion Technology. Cabot and CMC, as
the case may be, will further provide copies of tangible and/or electronic
documentation not previously provided in response to reasonable requests from
the other.
6.4 Cabot hereby agrees to assign to CMC an undivided one-half joint interest in
and to Cabot's rights in the registered copyrights and pending applications for
copyright registration listed in Schedule 6.4 hereto and the unpublished
copyrighted works included within the Dispersion Technology ("Dispersion
Copyrights"). Subject to the parties' respective undertakings of Sections 6.9
and 6.10, each of Cabot and CMC shall enjoy its rights as a joint owner of the
Dispersion Copyrights in each applicable country without the consent of, and
without accounting to, the other joint owner.
6.5 With respect to Dispersion Patents, Dispersion Copyrights, and Dispersion
Technology (hereinafter collectively referred to as the "Dispersion Intellectual
Property"), Cabot shall deliver to CMC on the Contribution Date an omnibus
transfer and assignment of an undivided one-half joint interest in and to the
Dispersion Intellectual Property "AS IS" and shall thereafter deliver to CMC
good and sufficient instruments of conveyance and assignment, all in recordable
form, for all patents, pending patent applications, registered copyrights and
pending copyright applications
-7-
8
with respect to any of the foregoing.
6.6 All transfer costs, taxes, and other related fees and expenses (except for
Cabot's internal costs) associated with the assignment, transfer, and
recordation of an undivided one-half joint interest in and to the Dispersion
Intellectual Property to CMC pursuant to this CDL Agreement shall be borne by
CMC.
6.7 Costs associated with the prosecution and maintenance of the Dispersion
Patents shall be shared equally by Cabot and CMC. Cabot shall pay all such costs
and CMC shall promptly reimburse Cabot for one-half of such costs upon
presentation of appropriate supporting documentation. Neither party will
knowingly take any actions or intentionally fail to take any actions which will
cause the Dispersion Patents to become expired, abandoned or otherwise invalid
without providing thirty (30) days advance written notice thereof to the other
party. If at any time Cabot or CMC elects to not maintain any patent or
application of the Dispersion Patents, the party desiring to prosecute or
maintain the patent or application shall pay the entire cost thereof, and the
party not desiring to prosecute or maintain the particular patent or application
shall assign its rights to the particular patent or application to the party
desiring to prosecute or maintain same. Decisions as to prosecuting and/or
maintaining particular patents or patent applications of the Dispersion Patents
shall be on a country-by-country basis, and a party's decision not to
participate in prosecuting or maintaining a particular patent or application in
one country shall not prejudice its right to participate in another country
directed to the same patent or application.
6.8 All trade secrets, unpublished Dispersion Copyrights, unpublished patent
applications of the Dispersion Patents, and other confidential or proprietary
Dispersion Technology shall be deemed to be both Cabot Confidential Information
and CMC Confidential Information and subject to the provisions of Article 1 of
this CDL Agreement. However, notwithstanding the obligations of Article 1, Cabot
and CMC shall be permitted to disclose to its respective customers, potential
customers, and suppliers only such confidential Dispersion Technology as is
reasonably and commercially necessary for such manufacturing, distribution,
marketing and sales, provided, the third party to whom such disclosure is to be
made agrees to undertake obligations of confidentiality and non-use appropriate
to the circumstances. Such circumstances will include, for example, the quantity
and quality of information to be disclosed, the potential and likelihood of
adverse use of the information by the third party, and the like. Should a party
desire to disclose any of the confidential Dispersion Technology beyond that
which is reasonably and commercially necessary for the manufacture,
distribution, marketing, and sales of products, the parties agree to discuss
diligently and in good faith a waiver of the other party's obligations with
respect thereto to the extent needed to enable that other party to undertake
reasonably effective manufacturing, distribution, marketing and sales of any
products.
6.9 With respect to Dispersion Intellectual Property (in which Cabot and CMC
each own an undivided one-half interest), Cabot and CMC, as the case may be,
agree as follows:
(a) Cabot shall not license or assign any of such Dispersion
Intellectual Property to any party (other than an Affiliate of Cabot,
but only so long as an Affiliate) for use in the
-8-
9
production and/or sale or use of CMP consumables without the prior
written authorization of CMC; and
(b) CMC shall not license or assign any of such Dispersion Intellectual
Property to any party (other than an Affiliate of CMC, but only so long
as an Affiliate) for use in the production and/or sale or use of
products for use in non-CMP applications without the prior written
authorization of Cabot.
Any assignment by either Cabot or CMC of its interest in any Dispersion
Intellectual Property, or any of its rights therein, to any Person (including an
Affiliate) shall be subject to this Section 6.9 and other applicable provisions
of this CDL Agreement.
6.10 Cabot and/or CMC, at its sole discretion, individually or jointly, may
bring enforcement proceedings against an infringer of any Dispersion
Intellectual Property. However, the parties shall jointly discuss any such
possible enforcement proceeding prior to engaging litigation counsel in
connection therewith and/or notifying the party believed to infringe. The costs
of any jointly brought proceeding shall be borne equally by the parties unless
otherwise agreed. The costs of any proceeding brought by an individual party
shall be borne solely by that party (the "enforcing party"). The non-enforcing
party agrees to cooperate with the enforcing party and will join as an
indispensable party when deemed to be required by law. The enforcing party will
reimburse the non-enforcing party for its costs and expenses (including attorney
fees, but excluding the non-enforcing party's internal costs) for its
participation. Any monies recovered by way of damages or otherwise in respect to
any such proceeding shall be kept by the party which bore the costs of such
proceeding; or, in the case where the parties have shared the costs, shall be
shared in the same proportion as the costs, unless otherwise agreed.
6.11 CMC and Cabot each agrees to notify the other of (i) any threat or
allegation made by any third party, that any Dispersion Intellectual Property,
or the practice thereof, infringes any third party intellectual property rights,
or (ii) any activities or threatened activities of any third party of which CMC
or Cabot, as the case may be, becomes aware that infringe or will infringe upon
the Dispersion Intellectual Property.
7. DISCLAIMER
Nothing in this CDL Agreement shall be construed as a warranty or
representation that anything made, used, sold, offered for sale, or otherwise
disposed of under any license granted in this CDL Agreement is or will be free
from infringement of any intellectual property right of any third party
including any patent, copyright, copyright registration, mask work registration,
trademark, or trademark registration issued or to be issued by any country.
8. MISCELLANEOUS
8.1 Except as otherwise set forth in this CDL Agreement, this CDL Agreement and
any schedules hereto and the Master Separation Agreement and any schedules
thereto shall constitute the entire agreement between the parties hereto with
respect to the subject matter hereof and shall supersede all prior agreements
and understandings, whether written or oral, between the parties
-9-
10
with respect to such subject matter.
8.2 This CDL Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware (other than the laws regarding conflicts of laws)
as to all matters, including matters of validity, construction, effect,
performance and remedies.
8.3 Each of the parties hereto shall use all commercially reasonable efforts to
cause to be performed all actions, agreements and obligations set forth herein
to be performed by any Affiliate of such party.
8.4 All notices and other communications hereunder shall be in writing and shall
be delivered in person, by telecopy, by express or overnight mail delivered by a
nationally recognized air courier (delivery charges prepaid), or by registered
or certified mail (postage prepaid, return receipt requested) to the respective
parties as follows:
(a) If to Cabot, to:
Cabot Corporation
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:
Telecopy No.:
With a copy to:
Law Department
Cabot Corporation
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention:
Telecopy No.:
(b) If to CMC, to:
Cabot Microelectronics Corporation
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attention:
Telecopy No.:
or to such other address as the party to whom notice is given may have
previously furnished to the others in writing in the manner set forth above. Any
notice or communication delivered in person shall be deemed effective on
delivery or when delivery is refused. Any notice or communication sent by
telecopy or by air courier shall be deemed effective on the first Business Day
at the place at which such notice or communication is received following the day
on which such notice or communication was sent.
-10-
11
8.5 This CDL Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which together shall
constitute one and the same agreement. The CDL Agreement may be delivered by
facsimile transmission of a signed copy thereof.
8.6 This CDL Agreement and all of the provisions hereof shall be binding upon
the parties hereto and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. Except with respect to a merger of
either party with another Person, neither this CDL Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by either party
hereto without the prior written consent of the other party, which consent shall
not be unreasonably withheld or delayed; provided, however, that Cabot and CMC
may assign their respective rights, interests, duties, liabilities and
obligations under this CDL Agreement to any of their respective Affiliates, but
such assignment shall not relieve Cabot or CMC, as the assignee, of its
obligations hereunder. The Schedules attached hereto or referred to herein are
an integral part of this CDL Agreement and are hereby incorporated into this CDL
Agreement and made a part hereof as if set forth in full herein. Notwithstanding
anything contained in this Agreement, Cabot and CMC shall not assign the
Ancillary License, in the case of CMC, or the Cabot License, in the case of
Cabot, to another Person, even upon a merger, without the prior written
authorization of the other party.
8.7 All disputes arising from or in connection with this CDL Agreement, whether
based on contract, tort, or otherwise (collectively, "Disputes"), shall be
exclusively governed by and settled in accordance with the provisions of Section
8.8 of the Mater Separation Agreement.
8.8 Any provision of this CDL Agreement which is prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof. Any such prohibition or unenforceability in any jurisdiction
shall not invalidate or render unenforceable such provision in any other
jurisdiction.
8.9 The observance of any term of this CDL Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
by the party entitled to enforce such term, but such waiver shall be effective
only if it is in writing signed by the party against which such waiver is to be
asserted. Unless otherwise expressly provided in this CDL Agreement, no delay or
omission on the part of any party in exercising any right or privilege under
this CDL Agreement shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any right or privilege under this CDL Agreement operate
as a waiver of any other right or privilege under this CDL Agreement, nor shall
any single or partial exercise of any right or privilege preclude any other or
further exercise thereof or the exercise of any other right or privilege under
this CDL Agreement. No failure by either party to take any action or assert any
right or privilege hereunder shall be deemed to be a waiver of such right or
privilege in the event of the continuation or repetition of the circumstances
giving rise to such right unless expressly waived in writing by the party
against whom the existence of such waiver is asserted.
8.10 This CDL Agreement may not be amended or modified in any respect except by
a written agreement signed by both of the parties hereto.
-11-
12
8.11 Each of the parties hereto represents to the other that (a) it has the
corporate power and authority to execute, deliver and perform this CDL
Agreement, (b) the execution, delivery and performance of this CDL Agreement by
it has been duly authorized by all necessary corporate action, (c) it has duly
and validly executed and delivered this CDL Agreement, and (d) this CDL
Agreement is a legal, valid and binding obligation, enforceable against it in
accordance with its terms subject to applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and general equity principles.
8.12 The headings contained in this CDL Agreement and in any Schedule hereto are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this CDL Agreement. Any capitalized term used in any Schedule
but not otherwise defined therein, shall have the meaning assigned to such term
in this CDL Agreement. When a reference is made in this CDL Agreement to an
Article or a Section or Schedule, such reference shall be to an Article or
Section of, or a Schedule to, this CDL Agreement unless otherwise indicated.
After the Contribution Date, the MMD Business shall be deemed to no longer exist
and all references made herein to CMC as a party which operate as of a time
following the Contribution Date, shall be deemed to refer to CMC and its
subsidiaries as a single party.
* * * * * * * *
[SIGNATURES ON FOLLOWING PAGE]
-12-
13
IN WITNESS WHEREOF, each of the parties has caused this CDL
Agreement to be executed on its behalf by its officers thereunto duly authorized
on the day and year first above written.
CABOT CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman and CEO
CABOT MICROELECTRONICS
CORPORATION
By: /s/ Xxxxxxx Xxxxxxx
------------------------------
Name: Xxxxxxx Xxxxxxx
Title: President and CEO
-13-
14
SCHEDULE 6.1
COUNTRY APPLIC. NO. FILING DATE PATENT NO. GRANT DATE
------- ----------- ----------- ---------- ----------
ASTL 52010/90 21MR1990 625980 21MR1990
BELG 9000319 21MR1990 BR266/90 02JL1991
BRAZ PI9001302 21MR1990 PI9001302 25NO1997
CANA 2012719-8 21MR1990 2012719 08JE1999
CHIN 90101525 21MR1990 28833 16OC1994
XXXX 9003557 20MR1990 9003557 11FE1994
GBRI 9006122.7 19MR1990 2229432 19MR1990
GERW P4006392.5 01MR1990
INDI 869/MAS/89 29NO1989 175167 01DE1995
ITAL 19748A90 21MR1990 01239546 00XX0000
XXXX 2-68568 20MR1990 2949633 09JL1999
KORS 3705/1990 20MR1990 148692 29MY1998
XXXX PI9000449 21MR1990
MEXI 19969 20MR1990 176811 05DE1994
TAIW 79100101 08JA1990 NI-43287 02AP1991
THAI 010174 26JA1990 7128 11SE1997
USA 07/829609 30JA1992 5246624 21SE1993
USA 07/326891 1MR1989 5116535 26MY1992
ASTL 52009/90 21MR1990 631847 21MR1990
BELG 9000320 21MR1990 9000320 27AU1991
BRAZ XX0000000 15MR1990 XX0000000 25NO1997
CANA 2012718-0 21MR1990 2012718 03DE1996
CHIN 90101086 28FE1990 29805 22JA1995
XXXX 9003558 20MR1990 9003558 04FE1994
GBRI 9006121.9 19MR1990 2229715 14OC1992
GERW P4006393.3-41 01MR1990
INDI 912/MAS/89 11DE1989 175056 03NO1995
ITAL 19747A90 21MR1990 01241073 29DE1993
JAPA 2-68569 20MR1990 2935125 04JE1999
KORS 3706/1990 20MR1990 145729 06MY1998
XXXX PI9000448 21MR1990
MEXI 19968 20MR1990 176602 14NO1994
TAIW 79102182 20MR1990 NI-44248 10MY1991
THAI 010175 26JA1990
-14-
15
SCHEDULE 6.4
None
-15-
