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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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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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(iv)
Perform such other services and supply such other
information related to ATMI's services or operations
hereunder as
Enthone may from time to time reasonably
request.
(v) Any
representation or warranty, or alteration of
Products made by ATMI which is not in accordance with
this Agreement or authorization from Enthone, shall
be the sole responsibility of ATMI.
(b)
Infrastructure. ATMI agrees that it shall use its
commercially reasonable efforts to take the
actions, as specified on Schedule D
hereto, related to development of an
infrastructure to distribute, sell and
commercialize the Products.
(c) Audit
Rights. Enthone and its designee shall have the
right, upon reasonable prior written notice
during normal business hours (i) to
inspect all facilities utilized by ATMI in
connection with the manufacture or
storage of Products and to examine Products
in process of manufacture and
testing; and (ii) to examine and copy
ATMI's books and records relating to its
performance of its obligations hereunder,
including, without limitation, all
inventory records, purchasing/accounts
payable records, work orders, routing
sheets and manufacturing cost records,
provided, that Enthone shall not be
entitled to examine or copy any books,
records or other information of ATMI that
identifies or discloses any of ATMI's
suppliers except to the extent required to
enable Enthone to manufacture Products upon
a Triggering Event. All such
facility inspections shall be undertaken in
a manner that results in the least
possible interference with ATMI's business
operations at the facility being
inspected. All information examined, copied
or otherwise learned by Enthone in
its exercise of its audit rights hereunder
shall be deemed Confidential
Information (as hereinafter defined). If a
discrepancy is discovered, the other
party shall make payment within thirty (30)
days, and if the discrepancy exceeds
five percent (5%) in favor of the party
being audited, the party being audited
shall pay the reasonable cost of the
audit.
3.4 Warranties
and Remedies.
(a) Scope of
Warranty.
(i) ENTHONE
WARRANTS TO ATMI THAT PRODUCTS DELIVERED
HEREUNDER ARE FREE FROM DEFECTS IN MATERIAL AND
WORKMANSHIP AND MEET THE APPLICABLE SPECIFICATIONS
THEREFOR. ENTHONE MAKES NO WARRANTIES, EXPRESS OR
IMPLIED, AS TO THE MERCHANTABILITY OR THE FITNESS FOR
ANY PARTICULAR USE OF ANY PRODUCTS SOLD HEREUNDER,
ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
(ii)
In the event any Viaform ECD or other Product
manufactured by Enthone, as applicable, fails to meet
the warranty set forth in Section 3.4(a) hereof, ATMI
may, in its sole discretion and option, (i) require
Enthone, at its sole
cost and expense, to supply ATMI
with a replacement, or (ii) return such
non-conforming Products at Enthone's expense and
recover from Enthone the order price thereof.
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(iii) ATMI
acknowledges that except as expressly set forth
in Section 3.4(a) hereof, neither Enthone nor any
other person has made, and ATMI has not relied upon,
any warranty or representation, express or implied,
with respect to Viaform ECD or other Product, as
applicable.
ARTICLE IV
DEVELOPMENTS
4.1 Generally.
In addition to Enthone's obligations under Article
V hereof, Enthone agrees that it shall use
its commercially reasonable efforts
to develop, manufacture and improve the
Technology and Products. Without
limiting the generality of the foregoing,
Enthone agrees that it shall use its
commercially reasonable efforts to take the
actions, as specified on Schedule D
hereto with regards to its development,
manufacture and improvement of the
Technology and Products and supply of
Products.
4.2
Development Obligations
(a)
Generally.
(i) Each of
the parties agrees to assume its respective
development obligations listed in Sections 4.2(b) and
(c) below. If the parties agree to enter into a
development project with each other, such joint
development project shall be conducted pursuant to
the terms of a statement of work mutually agreed-upon
by the parties at the time of such agreement (a
"Statement of Work"). Such Statement of Work shall be
in the form of Exhibit A hereto and shall include,
among other things, the specific details regarding
the responsibilities, rights and obligations of each
of the parties, and events constituting a default
under the Statement of Work. The parties intend that
in the event of any conflict between the terms of
this Agreement and the Statement of Work, the terms
of the applicable Statement of Work shall apply to
such development project.
(ii)
Neither party will enter into any other agreements or
arrangements relating to such joint development
project or which may conflict or otherwise impede
such party's ability to perform its obligations under
the applicable Statement of Work; provided that this
restriction will not and is not intended to affect
any other agreements or arrangements between ATMI and
Enthone or any of the Enthone or ATMI projects,
products or agreements set forth on Schedule M and/or
Schedule N hereto (the "Existing Projects"), which
Existing Projects are not joint development projects
and to which the other party shall have no right or
interest. The parties acknowledge and agree that each
of Enthone and ATMI and their respective Affiliates
may pursue each of the Existing Projects alone or
with any third parties without being in violation of
this Agreement and without notice to the other party
or the other party's consent or participation in any
form.
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(iii) The
parties intend that the costs related to any such
joint development project shall be shared equally by
the parties.
(iv)
If either party defaults in the performance of any
material obligation under the applicable Statement of
Work, and such failure has not been cured by the
defaulting party during the applicable notice period,
unless the non-defaulting party agrees otherwise in
writing:
(1) All right,
title and interest in
any and all Intellectual Property,
Materials, Products or other developments
made under such development project shall
automatically transfer to the non-defaulting
party, and
(2) If any
Intellectual Property,
Materials, Products or other developments
used under such development project are
contributed by the defaulting party, a
non-exclusive license therein shall
automatically transfer to the non-defaulting
party.
In addition, the defaulting party shall be prohibited
from pursuing such development project or any
development competitive thereto for a period of two
(2) years.
(b) ATMI
Development Projects. ATMI will offer in writing
to work jointly with Enthone on any
materials for electro-chemical deposition
for wafer-level interconnect and any
further developments, enhancements,
modifications and improvements related to
any development projects accepted
under this Section 4.2(b) (each an "ATMI
Project"). Enthone shall have thirty
(30) days after receipt of ATMI's written
offer to accept such offer on the
terms set forth in this Section 4.2(b),
unless otherwise agreed to in writing by
the parties. If Enthone accepts such ATMI
Project, the parties shall conduct
such joint development pursuant to the
terms of a Statement of Work mutually
agreed-upon by the parties. If Enthone does
not accept such ATMI Project, ATMI
may undertake whatever steps it deems
appropriate with regard to such ATMI
Project, including, without limitation,
pursuing the development project by
itself or in conjunction with a third party
and shall have the right to develop,
manufacture, use, sell, license, transfer,
or otherwise deal with such
development or product as ATMI deems
advisable in its sole and absolute
discretion by giving written notice to
Enthone, but without any obligation to
account to Enthone therefor, provided that
ATMI shall not engage any third party
with regard to any ATMI Project on terms
more favorable than those offered to
Enthone
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(c) Enthone
Development Projects. Enthone will offer in
writing to work jointly with ATMI on any
development or product project relating
to Other Interconnect, Front-End and
Capping and any further developments,
enhancements, modifications and
improvements related to any development projects
accepted under this Section 4.2(c) (each an
"Enthone Project"). ATMI shall have
thirty (30) days after receipt of Enthone's
written offer to accept such offer
on the terms set forth in this Section
4.2(c), unless otherwise agreed to in
writing by the parties. If ATMI accepts
such Enthone Project, the parties shall
conduct such joint development pursuant to
the terms of a Statement of Work
mutually agreed-upon by the parties. If
ATMI does not accept such Enthone
Project, Enthone may undertake whatever
steps it deems appropriate with regard
to such Enthone Project, including, without
limitation, pursuing the development
project by itself or in conjunction with a
third party and shall have the right
to develop, manufacture, use, sell,
license, transfer, or otherwise deal with
such development or product as Enthone
deems advisable in its sole and absolute
discretion by giving written notice to
ATMI, but without any obligation to
account to ATMI therefor, provided that
Enthone shall not engage any third party
with regard to any Enthone Project on terms
more favorable than those offered to
ATMI.
4.3 Initial
Development Projects. The parties agree that the
initial development projects relating to
the Alliance, and the obligations of
each party relating thereto, shall be as
set forth on Schedule E hereto. Each
party will use its commercially reasonable
efforts to fulfill its obligations
relating to such initial development
projects in accordance with the applicable
Statement of Work.
ARTICLE V
SUPPORT AND R&D DEVELOPMENT
5.1
Application Support. The Parties agree that the respective
obligations regarding Product application
support and research and development
shall be as follows:
(a) Initial
Obligations. During the first two years after
the Effective Date (the "Application
Support Period"), Enthone will provide ATMI
and its customers with application support
relating to the Technology and
Products which application support shall
include, but not be limited to, the
following:
-
On-site Process Assistance
-
Troubleshooting
-
Bath Characterization
-
Optimization of Component Concentration
-
Optimization of Bath Lifetime
-
General On-site Process Development
-
Product enhancements, modifications, improvements and
customization
The application and technical support
budget for Enthone for the first year of
the Application Support Period shall be $*
* * of which ATMI shall pay Enthone
the lesser of: (a) * * *% of Enthone's
costs for such application support, or
(b) $* * *. The parties acknowledge that
the application support budget of $* *
* is based on the assumption that the
application support needs of ATMI and its
customers for the first year after the
Effective Date will not increase
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relative to such needs in the year prior to
the Effective Date. The parties
agree to negotiate in good faith any
necessary application support budget
increases resulting from increased customer
demand for Viaform ECD. During the
second year of the Application Support
Period, the parties will agree to a
mutually acceptable budget and will equally
share all costs incurred based on
such budget in connection with such
support. In the event that the parties are
unable to agree upon a mutually acceptable
budget for the second year (and
beyond to the extent contemplated by
Section 5.1(b) or (d)) of the Application
Support Period, the budget for the
immediately preceding year of the Application
Support Period as set forth above shall
apply during such period.
(b) Transition
of Sup
