CONFIDENTIAL TREATMENT REQUESTED ALLIANCE AGREEMENT

 

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                                                                   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

                       **********************************

 

         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.

 

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         "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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<PAGE>

 

                           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, bill 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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<PAGE>

 

                  (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.

 

                                       10

 

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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