EXHIBIT 10.1
AMENDED AND
RESTATED
MEMBRANE MANUFACTURE AND SUPPLY
AGREEMENT
This Amended and Restated Membrane
Manufacture and Supply Agreement (this “Agreement”) is
entered into effective as of November 30, 2005 (the
“Effective Date”), between Millipore Corporation
(“Millipore”), a Massachusetts corporation with its
principal place of business at 290 Concord Road, Billerica, MA
01821, and Entegris, Inc. (“Entegris”), a Delaware
corporation with its principal place of business at 3500 Lyman
Boulevard, Chaska, MN 55318.
RECITALS
1. Millipore and Mykrolis
Corporation (“Mykrolis”) entered into a Master
Separation and Distribution Agreement, dated as of March 28,
2001 (the “Master Agreement”), under which, among other
things, the business of Millipore’s Microelectronics Division
was transferred to Mykrolis at the Separation Date and Mykrolis was
thereafter spun-off to become an independent company effective
February 27, 2002.
2. Pursuant to the Master Agreement,
Millipore and Mykrolis entered into a Membrane Manufacture and
Supply Agreement dated as of the Separation Date (the “Old
Agreement”) which among other things provided for the
manufacture and supply of certain membranes that are used by and
incorporated into products of both Millipore and Mykrolis, so as to
appropriately ensure both Millipore and Mykrolis a continuing
supply of such membranes; by its terms the Old Agreement is to
continue in effect until March 31, 2006.
3. Millipore and Entegris (which is
the surviving corporation of the merger of Mykrolis and Entegris,
Inc., a Minnesota corporation, which was completed as of
August 6, 2005) wish to amend and restate certain provisions
of the Old Agreement (which was assigned, by operation of the
merger, to Entegris) and to cancel and replace the Old Agreement as
of the Effective Date with this Agreement which is intended to
operate as a stand alone agreement independent of the Master
Agreement.
NOW, THEREFORE, in consideration of
the foregoing and the covenants and agreements set forth below, the
parties hereto agree as follows:
The following terms shall have the meanings
assigned to them below whenever they are used in this Agreement
including the Exhibits and Annexes hereto. Terms defined elsewhere
in this Agreement shall have the meaning ascribed thereto at the
location of their definition. Except where the context otherwise
requires, words imparting the singular shall include the plural and
vice versa, words denoting any gender shall include all genders and
words denoting persons shall include bodies corporate and vice
versa.
Page 1 of 27
Amended and Restated Membrane Manufacture and
Supply Agreement
Between Millipore Corporation and Entegris, Inc.
dated November 30, 2005
“Affiliated
Company” of one of
the parties shall mean any entity that controls, is controlled by,
or is under common control with such party. As used herein,
“control” means the possession, directly or indirectly,
or the power to direct or cause the direction of the management and
policies of such entity, whether through ownership of voting
securities or other interests, by contract or otherwise.
“Confidential
Information” shall
have the meaning set forth in Section 13.1 hereof.
“Entegris Core
Business” shall
mean: (i) the IC M ANUFACTURING I NDUSTRY including companies that manufacture integrated
circuits, semiconductors, semiconductor chips and other
microelectronics components, flat panel displays, solar cells and
fiber optic cables, optical coatings, coated optical lenses and
coated optical fibers; (ii) the IC OEM E
QUIP & M ATERIALS M FG .
I NDUSTRY
including companies that manufacture
equipment for the fabrication and processing of semiconductors and
integrated circuits for sale to companies in the IC Manufacturing
Industry as well as companies that integrate a number of components
into subsystems sold to OEM equipment manufacturers for
incorporation into semiconductor fabrication equipment, as well as
companies that manufacture, process and supply liquids, gases,
conductive materials and other advanced materials to the IC
Manufacturing Industry and which provide products and systems to
purify, monitor and control atmospheric conditions in clean room
manufacturing environments of the IC Manufacturing Industry; and
(iii) the IC R ESEARCH L ABORATORY I NDUSTRY including university, governmental and
commercial laboratories and research operations that research
and/or develop innovations in the structure and composition of
integrated circuits, the processes and materials used to
manufacture integrated circuits and new forms of integrated
circuits.
“Entegris
Equipment” shall
have the meaning set forth in Section 3.1.2 hereof.
“Entegris Permitted
Persons” shall have
the meaning set forth in Exhibit B.
“Equipment” shall mean the Entegris Equipment and the
Millipore Equipment collectively.
“Flat Sheet UPE
Membranes” shall
mean rollstock UPE Membranes typically less than 300 microns in
sheet thickness including both phobic and philic Membranes as
produced at the Premises pursuant to the Old Agreement immediately
prior to the Effective Date, or as modified as provided in this
Agreement.
“Information”
shall mean business information,
technical information and data, know-how, research information and
data, formulae and other information, whether or not patentable or
copyrightable, in written, oral, electronic or other tangible or
intangible forms, stored in any medium, including studies, reports,
records, books, contracts, instruments, surveys, discoveries,
ideas, concepts, know-how, techniques, designs, specifications,
drawings, blueprints, diagrams, models, prototypes, samples, flow
charts,
Page 2 of 27
Amended and Restated Membrane Manufacture and
Supply Agreement
Between Millipore Corporation and Entegris, Inc.
dated November 30, 2005
data, computer data, disks, diskettes, tapes,
computer programs or other software, marketing plans, customer
names, communications by or to attorneys (including attorney-client
privileged communications), memos and other materials prepared by
attorneys or under their direction (including attorney work
product), and other technical, financial, employee or business
information or data.
“Lease”
shall mean the lease of the
Premises as set forth in Section 2 hereof and in the Lease
terms set forth in Exhibit B hereto.
“Machines”
shall have the meaning set forth in
Section 7.1 hereof.
“Machine Hourly
Rates” shall have
them meaning set forth in Section 7.1. hereof.
“Membranes” shall mean UPE Membranes and Other Membranes as
well as any other membranes or materials that the parties may
hereafter agree to add to this definition of Membranes.
“Millipore Core
Business” shall
mean: (i) the B IOPHARM I NDUSTRY including pharmaceutical/biotechnology and
genetic engineering companies as well as manufacturers of
cosmetics, medical devices, diagnostic products and clinical
analytical products; (ii) the L
AB & L IFE S CIENCE R ESEARCH I NDUSTRY including government, university and private
research and testing analytical laboratories for proteomic,
genomic, microbiological and similar research and analysis as well
as for environmental research and analysis; and (iii)
the F OOD & B EVERAGE I NDUSTRY including companies that manufacture or process
foods and beverages including dairy products, beer, wine, juice and
soft drink manufacturers and bottled water companies.
“Millipore
Equipment” shall
have the meaning set forth in Section 3.1.3 hereof.
“Other Flat Sheet UPE
Membranes” shall
mean Flat Sheet UPE Membranes other than Treated Flat Sheet UPE
Membranes. Other Flat Sheet UPE Membranes include, as of the
Effective Date, those Membranes listed under the heading
“Other Flat Sheet UPE Membranes” in Exhibit
A hereto.
“Other
Membranes” shall
mean those membranes listed under the heading “Other
Membranes” in Exhibit A hereto, each as
produced pursuant to the Old Agreement immediately prior to the
Effective Date, or as modified as provided in this
Agreement.
“Other Membrane
Products” shall
mean devices or other products which include one or more Other
Membranes as a material or component.
“Other UPE
Membranes” shall
mean all UPE Membranes other than Treated Flat Sheet UPE
Membranes.
Page 3 of 27
Amended and Restated Membrane Manufacture and
Supply Agreement
Between Millipore Corporation and Entegris, Inc.
dated November 30, 2005
“Other UPE
Products” shall
mean devices or other products which include Other UPE Membranes as
a material or component.
“Premises”
shall have the meaning set forth in
Exhibit B .
“Releases”
shall mean any purchase orders or
other documents of purchase that Millipore may place with Entegris
for UPE Membranes, or that Entegris may place with Millipore for
Other Membranes.
“Rent”
shall have the meaning set forth in
Exhibit B .
“Separation
Date” shall mean
March 31, 2001.
“Subsidiary” of one of the parties shall mean any entity that
is controlled by such party. As used herein, “control”
of an entity means the possession, directly or indirectly, or the
power to direct or cause the direction of the management and
policies of such entity, whether through ownership of voting
securities or other interests, by contract or otherwise.
“Supplement” shall mean the schedule of supplemental terms
and conditions specifying detailed provisions to implement the
contractual commitments set forth in this Agreement relating to
membrane manufacturing operations and membrane manufacturing
process improvements which is attached to this Agreement as
Exhibit C .
“Supplied
Party” shall mean a
party to this Agreement that orders certain Membranes pursuant to
this Agreement and to whom such Membranes are sold.
“Supplying
Party” shall mean a
party to this Agreement that manufactures certain Membranes ordered
by the other party pursuant to this Agreement and that sells such
Membranes to the other party.
“Term”
or “Term of this
Agreement” shall mean the effective period of this
Agreement as set forth in Section 6 hereof.
“Treated Entegris
Membranes” shall
mean Treated Flat Sheet UPE Membranes and Treated Other Entegris
Membranes.
“Treated Entegris
Products” shall
mean devices or other products which include Treated Entegris
Membranes as a material or component.
“Treated Other Entegris
Membranes” shall
mean those Entegris membranes that are chemically treated using
Millipore’s VMF4 Line or using Millipore’s patented
VMF4 technology, including, as of the Effective Date, those
membranes listed under the heading “Treated Other Entegris
Membranes” in Exhibit A hereto.
Page 4 of 27
Amended and Restated Membrane Manufacture and
Supply Agreement
Between Millipore Corporation and Entegris, Inc.
dated November 30, 2005
“Treated Flat Sheet UPE
Membranes” shall
mean Flat Sheet UPE Membranes that are chemically treated using
Millipore’s VMF4 Line or using Millipore’s patented
VMF4 technology, including, as of the Effective Date, those
Membranes listed under the heading “Treated Flat Sheet UPE
Membranes” in Exhibit A hereto.
“UPE
Membranes” shall
mean microporous membranes produced from an ultrahigh molecular
weight polyethylene material by a melt cast process, as produced
pursuant to the Old Agreement at the Premises immediately prior to
the Effective Date, or as modified as provided in this
Agreement.
“UPE
Products” shall
mean devices or other products which include UPE Membranes as a
material or component.
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2.
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L EASE OF THE P REMISES
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In order to enable Entegris to
manufacture UPE Membranes, including Treated Flat Sheet UPE
Membranes and Other Flat Sheet UPE Membranes, and Treated Other
Entegris Membranes in the same production areas at
Millipore’s facility at 80 Ashby Road, Bedford MA. and/or
such additional, reduced or substituted areas all as described in
greater detail in Exhibit B hereto, and with the same processes as
such UPE Membranes and Treated Other Entegris Membranes were
manufactured prior to the Effective Date (both (i) for its own
use and sale and for its sale of UPE Products and (ii) for
supply of Flat Sheet UPE Membranes to Millipore as provided in this
Agreement), Millipore and Entegris agree to the arrangements
regarding Entegris’ use of the Premises as are set forth in
Exhibit B hereto.
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3.
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O WNERSHIP AND U SE OF THE E QUIPMENT
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3.1.
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Ownership. For purposes of clarification, the parties
acknowledge and agree that:
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3.1.1.
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All right,
title and interest in and to the following equipment currently used
in the manufacture of UPE Membranes and/or Treated Other Entegris
Membranes, was with Mykrolis pursuant to the terms of the Old
Agreement, and now exists with, and is solely owned by
Entegris:
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Item#
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Description
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Current
Location
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Quantity
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1.
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Slurry Mixing
Vessels
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Bldg C –
Mix Room
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2
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2.
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Extrusion Line
& support equipment (cranes, vents etc.)
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Bldg D –
101
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1
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3.
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NZE Extractors
& support equipment (scales, vents etc.)
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Bldg C –
103
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2
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Page 5 of 27
Amended and Restated Membrane Manufacture and
Supply Agreement
Between Millipore Corporation and Entegris, Inc.
dated November 30, 2005
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4.
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Release/Testing
Equipment (porosimeter, flow stands, VBP stands, digital dimension
equipment)
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Bldg
D-101
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1
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5.
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Monomer
Chemical Mixing Vessel (for philic Flat Sheet UPE
Membranes)
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Bldg C-Mix
Room
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1
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6.
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MSR Batch
Extractors & support equipment (cranes, LS-15, etc.)
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Bldg
D-101
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3
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7.
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Release/Testing
Equipment (flow stands, VBP stands, digital dimension
equipment)
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Bldg F-Cell
5
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1
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8.
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CUPE
Mix/recirculation Pumps
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Bldg C-Mix
Room
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2
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9.
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NZE Chiller
Loop (~ 100 Tons)
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Bldg
C-Roof
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1
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3.1.2.
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The following
equipment currently used in the manufacture of UPE Membranes and/or
Treated Other Entegris Membranes (collectively with the equipment
listed in Subsection 3.1.1 above, the “Entegris
Equipment”) was purchased by Mykrolis during the term of the
Old Agreement and is solely owned by Entegris:
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Item#
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Description
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Current
Location
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Quantity
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1.
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Oil Mist
Collector (and duct/hood)
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Bldg
D-101
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1
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2.
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7 Ton Edwards
Chiller
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Bldg
D-outside
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1
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3.
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Tiyoda-Serec
Extractor
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Bldg F-Cell
5
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1
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4.
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Tiyoda-Serec
Ext 42 Ton Chiller
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Bldg
C-roof
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1
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3.1.3.
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All right,
title and interest in and to the following equipment currently used
in the manufacture of UPE Membranes and/or Treated Other Entegris
Membranes (collectively, the “Millipore Equipment”) is
solely owned by Millipore:
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Item#
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Description
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Current
Location
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Quantity
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1.
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Slurry Mix
Stations; Control Modules 1-3
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Bldg C
-105
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3
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2.
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Film 1
Annealing Line
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Bldg.
C-123
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1
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3.
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VMF 4 Line
(chemical modification)
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Bldg.
C-124
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1
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4.
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Testing: Flow,
Wet Time, Stability
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Bldg.C-124
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various
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5.
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Monomer
Chemical Mixing Stations 4-6
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Bldg.
C-105
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3
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Page 6 of 27
Amended and Restated Membrane Manufacture and
Supply Agreement
Between Millipore Corporation and Entegris, Inc.
dated November 30, 2005
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3.2.
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Use of
Millipore Equipment and Support . At all times during the Term of this
Agreement, Millipore shall provide Entegris with access to and use
of the Millipore Equipment, each as necessary for use in the
manufacture of UPE Membranes or Treated Other Entegris Membranes in
accordance with Article I of the Supplement. Entegris shall pay
Millipore Machine Hourly Rates as set forth in Section 7.1
below with respect to the use of the Millipore Equipment. At all
times during the Term of this Agreement Millipore will provide a
reasonable level of operational assistance and general technical
support assistance in resolving technical problems in UPE Membrane
manufacture in accordance with Article I of the Supplement
Millipore shall be responsible for maintaining the Millipore
Equipment in its current operational capability, and Entegris shall
be responsible for maintaining the Entegris Equipment in its
current operational capability and condition, in each case as
specified in Article I of the Supplement, unless the parties agree
in writing during the Term of this Agreement to alter such
maintenance responsibilities. To the extent Millipore provides
extraordinary services to Entegris, such services will be charged
in accordance with the rate structure specified in Section 7.3
of the Agreement.
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4.
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M ANUFACTURE OF M EMBRANES
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4.1.
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Membrane Manufacturing
Operations . Millipore and Entegris agree that Membrane
manufacturing operations during the Term of this Agreement shall be
carried out in accordance with this Section 4 and with Article
I of the Supplement.
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4.2.
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Guaranteed Capacity
. At all times during the Term of
this Agreement:
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4.2.1.
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Millipore
agrees to have VMF4 Line capacity sufficient to handle projected
philic Membrane volumes hereunder of up to 280,000 feet (~800
hours) per quarter. If necessary and at Millipore’s
discretion, this capacity can be accomplished by either moving
Millipore products (i.e. products other than the Membranes covered
by this Agreement) to Millipore’s MML hydrophilization
equipment or by moving philic Membranes covered by this Agreement
to the MML hydrophilization equipment if mutually agreed upon with
cost impact to be agreed upon in advance.
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4.2.2.
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Millipore
agrees to have Film 1 Annealing Line processing capacity sufficient
to handle projected phobic Membrane volumes hereunder of up to
3,200,000 feet (~1400 hours) per quarter.
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4.2.3.
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Entegris agrees
to generally schedule operations in alignment with
Millipore’s plan for shutdown periods and holidays. However,
it is acknowledged and agreed that there will be times of high
demand where Entegris will be required to run the Entegris
Equipment during these times. In such cases, Millipore and Entegris
will mutually agree on a plan allowing for high utilization of the
Entegris Equipment.
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Page 7 of 27
Amended and Restated Membrane Manufacture and
Supply Agreement
Between Millipore Corporation and Entegris, Inc.
dated November 30, 2005
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4.2.4.
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Subject to any
new or changed restrictions imposed by the applicable air emission
permit(s), Entegris agrees to have sufficient capacity, across all
relevant process steps, to meet Millipore’s projected demand
for phobic UPE Membranes as follows:
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Guaranteed
Capacity Per Calendar
Quarter
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Calendar
Year
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Feet
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2006
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250,000
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2007
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300,000
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2008
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325,000
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2009
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350,000
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2010
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350,000
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If necessary
but at Millipore’s discretion this capacity can be
accomplished by moving production in excess of current
manufacturing capacity to new equipment acquired by Entegris to
increase capacity. Millipore expressly acknowledges that the above
stated capacities per quarter represent the capability of existing
equipment located at the Premises as of the Effective Date.
Millipore and Entegris agree to meet annually beginning on the
anniversary date of this Agreement to discuss measures each party
might take which would be designed potentially to increase the
above stated production capacities.
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4.3.
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Capacity Expansion
.
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4.3.1.
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Membrane
manufacturing capacity will be reviewed in accordance with a
mutually agreed upon schedule during the Term of this Agreement,
but no less often than annually. Entegris shall be responsible to
review and report on the capacity of the Entegris Equipment and
Millipore shall be responsible to review and report on the capacity
of the Millipore Equipment. The results of these reviews will be
discussed and documented for reference and to provide a basis for
capacity expansion, as may be appropriate and agreed by the
parties.
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4.3.2.
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The parties
hereby acknowledge that Entegris has purchased and had installed,
on or about August 2005, a third (3 rd ) NZE Extractor at the Premises
for purposes of Membrane manufacture pursuant hereto. Such NZE
Extractor is installed in the space within the Premises which had
previously been used by Mykrolis under the Old Agreement to
manufacture Hollow Fiber UPE Membranes, as such space was expanded,
the increased square footage of which has been reflected in
Attachment A. The parties further acknowledge that Entegris had and
has sole responsibility for the purchase, installation and
facilitation of such NZE Extractor and all funding therefor, and
Entegris is the sole owner thereof.
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Page 8 of 27
Amended and Restated Membrane Manufacture and
Supply Agreement
Between Millipore Corporation and Entegris, Inc.
dated November 30, 2005
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4.4.
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Manufacturing Process
Improvements . Millipore and Entegris agree to implement the
Membrane manufacturing process improvements described in Article II
of the Supplement in accordance with the provisions
thereof.
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4.5.
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End of
Term Arrangements for Millipore . Following the expiration or earlier
termination of the Term of this Agreement, Millipore desires the
full capabilities to manufacture (or have manufactured) UPE
Membranes for its and its Affiliated Companies’ use and sale,
and for its and its Affiliated Companies’ use in
manufacturing (or having manufactured) UPE Products for sale.
Accordingly, to facilitate Millipore’s manufacture of UPE
Membranes following the Term of this Agreement:
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4.5.1
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(i) Entegris agrees in the event that
Entegris during the Term of this Agreement acquires and has
installed at the Premises new equipment in replacement of the
existing Extrusion Line, or otherwise determines during the Term of
this Agreement, in its sole discretion, that the Extrusion Line
and/or one NZE Extractor are surplus and are to be disposed of,
then Entegris agrees to grant Millipore an option to purchase,
prior to or at the termination of this Agreement, at their then
current book values and at such other reasonable terms as the
parties may agree, such surplus Extrusion Line and/or NZE
Extractor. Upon consummation of any such sale transaction, Entegris
agrees to leave in their then current locations at the Premises,
the subject Extrusion Line and/or NZE Extractor, as the case may
be. Entegris agrees to notify Millipore as to whether it is
granting Millipore such an option, at least eighteen
(18) months prior to the termination of this Agreement;
and
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4.5.2
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In the event
that the parties consummate a sale of any equipment deemed to be
surplus by Entegris as specified above, Entegris agrees to provide
Millipore with the know-how (including copies of all pertinent
documentation) and a reasonable amount of transition assistance
relating to the design, specifications, functionality, operation
and maintenance of such equipment, or otherwise necessary or useful
for Millipore to be able to continue the UPE Membrane manufacturing
process immediately upon the termination of this Agreement, so as
to be able to make or have made UPE Membrane in the same process
and of the same quality as made and supplied under this Agreement.
All Entegris transition assistance time shall be charged to
Millipore at the rates per person-hour calculated in accordance
with Section 7.3 below.
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Page 9 of 27
Amended and Restated Membrane Manufacture and
Supply Agreement
Between Millipore Corporation and Entegris, Inc.
dated November 30, 2005
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4.6.
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End of
Term Arrangements for Entegris.
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To facilitate Entegris’
manufacture of UPE Membranes and Treated Entegris Membranes at a
different location following the expiration or earlier termination
of this Agreement:
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4.6.1.
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Entegris shall
remove and transport, at its own expense, the Entegris Equipment
(subject to the consummation of any sale pursuant to any option to
purchase certain items of such Entegris Equipment as specifically
set forth in Subsection 4.5.1 above) from the Premises to a
location of its choice within one-hundred eighty (180) days
following such expiration or early termination. Entegris shall use
its best efforts to avoid or minimize damage to the Premises or to
any other part of Millipore’s 80 Ashby Road facility from
such removal, and shall promptly reimburse Millipore for its
reasonable and actual costs of repairing any damage to the extent
caused by Entegris or its agents or representatives in the process
of removing the Entegris Equipment from the Premises or any other
parts of such facility; and,
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4.6.2.
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Millipore shall
provide Entegris with know-how (including copies of all pertinent
documentation) and a reasonable amount of transition assistance
relating to the design, specifications, functionality, operation
and maintenance of the Millipore Equipment, such that Entegris can
make or have made, and operate and maintain, equipment
substantially equivalent or comparable to the Millipore Equipment,
or successfully outsource the functions performed by the Millipore
Equipment, in the manufacture of UPE Membranes and Treated Other
Entegris Membranes. All Millipore transition assistance shall be
charged to Entegris at the rates per person-hour calculated in
accordance with Section 7.3 below.
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4.7.
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Joint
Know-How . In the
event that any know-how results from or is developed in the course
of the manufacture of UPE Membranes or Treated Other Entegris
Membranes in the Premises during the Term of this Agreement
(including the use of Millipore Equipment in such manufacture),
whether by employees of Millipore, employees of Entegris or
jointly, such know-how shall be jointly owned by Entegris and
Millipore. Millipore shall have rights to use such know-how in all
fields other than the Entegris Core Business, and Entegris shall
have rights to use such know-how in all fields other than the
Millipore Core Business.
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4.8.
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Additional Membranes
. Entegris shall have the right to
add other membranes to the list and definition of “UPE
Membranes” during the Term of this Agreement, subject to
(i) Millipore’s approval (on grounds of safety,
compliance with laws, or avoidance of damage to the Millipore
Equipment, the Premises or any other parts of Millipore’s 80
Ashby Road facility) of the manufacture of such additional UPE
Membranes, which approval shall not be unreasonably withheld or
delayed, and (ii) Millipore’s having sufficient space
and equipment capacity for such additional manufacture, and
(iii) scheduling of use of the Millipore Equipment as shall be
negotiated by the parties in good faith.
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Page 10 of 27
Amended and Restated Membrane Manufacture and
Supply Agreement
Between Millipore Corporation and Entegris, Inc.
dated November 30, 2005
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5.1.
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Sale
of Membrane .
Entegris agrees to sell to Millipore Flat Sheet UPE Membranes, in
the amounts contained in Millipore’s Releases, at all times
during the Term and, in the event this Agreement is terminated by
Entegris pursuant to Section 6.2 (iii), at all times following
the Term through and including December 31, 2010 or until any
event prior thereto that would have given rise to Entegris’
right to terminate this Agreement pursuant to Section 6.2
(i) or (ii). Millipore agrees to sell to Entegris, from time
to time through and including March 31, 2006, Other Membranes
in the amount contained in Entegris’ Releases. Except as set
forth in Section 5.4 hereof, neither party shall have any
minimum or maximum purchase requirements for any or all of such
Membranes hereunder, either per order or in the
aggregate.
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5.2.
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Terms
of Sale . Unless
otherwise agreed by both parties in writing, this Agreement applies
to all Releases placed by a Supplied Party with a Supplying Party
during the Term. The terms and conditions of this Agreement shall
apply to any Release, whether or not this Agreement or its terms
and conditions are expressly referenced in the Release. All
Membrane shall be tested, inspected and packaged for delivery by
the Supplying Party as mutually agreed by the parties.
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5.3.
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Priority . Unless otherwise agreed by both parties in
writing for a specific transaction, no inconsistent or additional
term or condition in any Release, or in any acknowledgment, invoice
or other document issued by a Supplying Party or its representative
in connection with a particular purchase by a Supplied Party, shall
be applicable to a transaction within the scope of this Agreement.
Both parties specifically agree that any terms and conditions in
any such documents which are in any way inconsistent with this
Agreement shall be inapplicable, and the terms of this Agreement
shall govern.
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5.4.
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Forecasts and Releases
.
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5.4.1
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Millipore will provide Entegris
with a rolling one-year forecast of its demand for UPE Membranes
hereunder, by calendar quarter (a “One-Year Forecast”),
which will be updated on a quarterly basis, at least thirty
(30) days prior to the start of each calendar quarter. The
sub-forecast for the first three (3) months within any
One-Year Forecast shall be referred to as a “3 Month
Forecast”. Millipore must provide Releases for delivery,
during the three (3) months covered by any 3 Month Forecast,
of UPE Membranes in at least those quantities set forth in such 3
Month Forecast. Except for such semi binding nature of the 3 Month
Forecasts as described more specifically at 5.4.4 below, the
One-Year Forecasts will be use
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