Exhibit 10.15
CONTRACT MANUFACTURING AGREEMENT
This Contract Manufacturing Agreement (this "Agreement") is entered into as
of March 31, 2001, between Millipore Corporation ("Millipore"), a Massachusetts
corporation with its principal place of business at 80 Ashby Road, Bedford, MA
01730, and Mykrolis Corporation ("Mykrolis"), a Delaware corporation with its
principal place of business at Patriots Park, Bedford, MA 01730.
RECITALS
1. Millipore currently owns all of the issued and outstanding common
stock of Mykrolis.
2. Millipore and Mykrolis have entered into a Master Separation and
Distribution Agreement as of March 28, 2001 (the "Master Agreement") under
which, among other things, the business of Millipore's Microelectronics Division
is to be taken over by, and the assets and liabilities associated therewith are
to be transferred to and assumed by, Mykrolis at the Separation Date (as defined
in the Master Agreement).
3. After the Separation Date, in order to enable Millipore to carry on
its respective business as a separate company, Millipore wishes that Mykrolis,
on a contract manufacturing basis, supply the product (or products) listed on
Exhibit A (the "Product") to Millipore, and Mykrolis wishes to do so.
4. The Master Agreement provides for this Agreement to be entered into as
of the Separation Date.
NOW, THEREFORE, in consideration of the foregoing and the covenants and
agreements set forth below, the parties hereto agree as follows:
1. Definitions. Capitalized terms defined in this Agreement shall have the
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respective meanings assigned to them at the location of their definition.
Capitalized Terms used in this Agreement without definition which are defined in
the Master Agreement shall have the meaning ascribed thereto in the Master
Agreement.
2. Overriding Character of this Agreement
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A. Unless otherwise agreed by both parties in writing, this Agreement
applies to all purchase releases, purchase orders and other documents
of purchase for the Products (hereinafter collectively referred to as
"Releases") which Millipore may place with Mykrolis during the term of
this Agreement. The terms and conditions of this Agreement shall
apply to any Releases, whether or not this Agreement or its terms and
conditions are expressly referenced in the Release.
B. Unless otherwise agreed by both parties in writing for a specific
transaction, no inconsistent or additional term or condition in any
Release shall be applicable to a transaction within the scope of this
Agreement. Both parties specifically agree that any term and
condition on any of their purchase or sale documents used as Releases
hereunder which are in any way inconsistent with this Agreement shall
be inapplicable, and the terms of this Agreement shall govern.
3. Supply of Product
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(a) Mykrolis agrees to sell to Millipore, from time to time during the
Term, Product, in the amounts contained in Millipore's Releases.
Except as set forth in Section 6(a) hereof, Millipore shall have no
minimum or maximum purchase requirements for the Products.
(b) Mykrolis agrees to manufacture and package the Products in accordance
with the specifications therefor in effect as of the Separation Date.
In addition, Mykrolis agrees to label and otherwise mark the Products
and the packaging for the Products with Millipore's trademarks and
trade names in accordance with artwork specified by Millipore. Except
as otherwise expressly agreed, Millipore agrees that it shall not
resell the Products under any Mykrolis trademark or trade name.
4. Term and Termination
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(a) The effective period of this Agreement (the "Term") shall begin on the
Separation Date and continue thereafter for a period of five (5) years
or until earlier termination in accordance with clause (b) or (c) of
this Section 4. Any Release issued by Millipore before the effective
date of termination and in accordance with Section 6(a) hereof shall
be fulfilled by Mykrolis.
(b) Either party may terminate this Agreement prior to the expiration of
the Term without prejudice to any rights or liabilities accruing up to
the date of termination:
(i) in the event of a material breach by the other party of any of
the terms and conditions of this Agreement, by giving the other
party notice of such breach, and provided that such breach shall
not have been cured, or material steps to effect a cure
undertaken within sixty (60) days following such notice; and
(ii) immediately, by written notice thereof, if any of the following
events or an event analogous thereto occurs:
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a. an adjudication has been made that the other party is
bankrupt or insolvent;
b. the other party has filed bankruptcy proceedings or has had
such proceedings filed against it, except as part of a bona
fide scheme for reorganization;
c. a receiver has been appointed for all or substantially all
of the property of the other party;
d. the other party has assigned or attempted to assign this
Agreement for the benefit of its creditors; or
e. the other party has begun any proceeding for the liquidation
or winding up of its business affairs.
(c) Millipore may terminate this Agreement effective at any time, provided
it has given Mykrolis at least sixty (60) days prior written notice
thereof.
(d) Termination under this Section 4 shall be in addition to and not a
substitute for other rights or causes of action of the terminating
party.
5. Price
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(a) For the first year of this Agreement, the price shall be as set forth
on Exhibit A, which is attached and incorporated by reference.
Thereafter, Mykrolis shall be entitled to adjust prices annually on
each anniversary of the Separation Date in order to recoup actual
increases in the cost to manufacture the Products. Mykrolis agrees to
justify any price increases hereunder by an open-book review of its
costs with Millipore.
(b) Prices and deliveries will be FOB the Mykrolis plant which is
producing the Product.
6. Orders, Delivery and Payment
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(a) Millipore will provide Mykrolis with a rolling one year forecast of
its demand for Product hereunder (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. Each such One-Year Forecast shall
include a sub-forecast for the first three months within the One-Year
Forecast (a "3 Month Forecast"). Millipore shall provide Releases for
delivery, during the three months covered by such 3 Month Forecast, in
the quantities specified therein, but subject to increase or reduction
in such quantities of not more than 25%. Except for such purchase
commitment in the 3 Month Forecasts, the One-Year Forecasts will be
used for
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planning purposes only and are not binding. Mykrolis will ship Product
so as to arrive on the delivery date set forth in a Release, provided
that the delivery date set forth in such Release is not less than 30
days following the date Mykrolis receives such Release and provided
that the amounts set forth in such Release are within the range
provided above in accordance with the applicable 3 Month Forecast.
(b) Millipore shall make payment to Mykrolis within forty-five (45) days
after the later of (i) receipt of the Product, and (ii) receipt of
Mykrolis's invoice for the Product. All payments shall be made in U.S.
Dollars. Late payments shall bear interest at a rate of 12% per annum.
(c) All Product shall be tested, inspected and packaged for delivery by
Mykrolis as mutually agreed by the parties.
(d) Mykrolis shall make reasonable best efforts to ship the Product in
accordance with the requested delivery dates. Mykrolis shall give
prompt notice of any delay in shipment and shall use diligence to
remove the cause of any such delay, provided, however, that Mykrolis
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accepts no liability for general, special, or consequential damages
arising out of delay in delivery.
(e) Identification of the Products to this Agreement shall occur when they
are packed for shipment, addressed to Millipore and delivered to a
common carrier, at which time title and risk of loss shall pass to
Millipore. In the event that any shipment of Products or any portion
thereof fails to conform to the applicable specifications, then
Millipore shall be entitled to reject such shipment of Products or the
portion thereof that fails to so conform, as the case may be.
Millipore shall communicate its rejection hereunder by written notice,
given within twenty (20) days following the date on which such
shipment was received by Millipore, specifying the grounds for such
rejection. If no written notice of rejection is given by Millipore
within said twenty (20) day period, the Products shall be deemed to
have been accepted, and to have conformed to the applicable
specifications. In the event of any proper and timely rejection,
Mykrolis agrees: (i) that it shall bear the cost of shipment for the
return of rejected Products and (ii) to use its reasonable best
efforts to cure such rejection or replace such nonconforming Products
within thirty (30) days after receipt of written notice thereof.
7. Warranties
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Mykrolis Corporation ("Mykrolis") warrants the Products will be free from
defects in materials and workmanship when used in accordance with the
applicable instructions for a period of one year from shipment of the
Products. Mykrolis MAKES NO OTHER WARRANTY, EXPRESSED OR IMPLIED. THERE IS
NO
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WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The
warranty provided herein and the data, specifications and descriptions of
Mykrolis products appearing in Mykrolis's published catalogues and product
literature may not be altered except by express written agreement signed by
an officer of Mykrolis. Representations, oral or written, which are
inconsistent with this warranty or such publications are not authorized and
if given, should not be relied upon.
In the event of a breach of the foregoing warranty, Mykrolis's sole
obligation shall be to repair or replace, at its option, the applicable
Product or part thereof, provided Millipore notifies Mykrolis promptly of
any such breach. If after exercising reasonable efforts, Mykrolis is unable
to repair or replace the Product or part, then Mykrolis shall refund to
Millipore all monies paid for such applicable product or part. Mykrolis
SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL OR ANY OTHER
INDIRECT DAMAGES RESULTING FROM ECONOMIC LOSS OR PROPERTY DAMAGE SUSTAINED
BY ANY CUSTOMER FROM THE USE OF ITS PRODUCTS.
8. Product Modifications
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Mykrolis agrees that it will not materially change the Product that it will
supply hereunder or their formulation, manufacturing or testing processes,
process equipment, other aspects of form, fit or function, or production
location, unless Millipore approves such change in writing, which approval
may require formal validation and qualification and possibly customer
notification. The implementation of any such accepted changes shall be
subject to the parties' agreement on any change in price or other terms of
supply as may be necessitated or requested by a party as a result of such
change.
9. Inventory
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Mykrolis will maintain an inventory of Product, in such amounts as shall be
agreed by the parties but in no event less than amounts specified in
Millipore's current 3 Month Forecast.
10. Access to Facilities
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At any time during the Term, upon reasonable advance notice by Millipore,
Millipore's authorized representatives and customers (subject to
appropriate confidentiality obligations) shall be provided access to the
facilities of Mykrolis to audit or verify conformity of Product manufacture
to specifications.
11. Notices
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Any notice or other communication required or permitted to be given by
either party pursuant to the terms of this Agreement shall be in writing
and shall be deemed given if
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and when delivered by hand or sent by certified mail, return receipt
requested, overnight courier, confirmed telecopy, or confirmed electronic
mail transmission, addressed as follows:
If to Millipore: Millipore Corporation
80 Ashby Road
Bedford, MA 01730
Attn: Vice President, Manufacturing
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Fax: [(781)__________]
with a copy to: Millipore Corporation
80 Ashby Road
Bedford, MA 01730
Attn: General Counsel
Fax: (781) 533-3125
If to Mykrolis: Mykrolis Corporation
Patriots Park
Bedford, MA 01730
Attn: Vice President, Manufacturing
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Fax: [(781) ________]
with a copy to: Mykrolis Corporation
Patriots Park
Bedford, MA 01730
Attn: General Counsel
Fax: (781) _________
or to such electronic mail address as may be specified by an addressee
party to the other party by one of the other means provided above, or to
such other address, telecopy number or electronic mail address as may be
specified by an addressee party to the other by one of the means provided
above.
12. Force Majeure
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The obligations of a party under this Agreement will be suspended to the
extent that it is wholly or partially precluded from complying with its
obligations under this Agreement by force majeure. Force majeure includes,
but is not restricted to, fire, storm, flood, earthquake, explosion,
accident, act of the public enemy, war, rebellion, insurrection, sabotage,
epidemic, quarantine restriction, labor dispute, labor shortage,
transportation embargo or failure or delay in transportation, act of God,
act (including
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laws, regulations, disapprovals or failure to approve) of any government
agency, whether national, municipal, or otherwise. The parties shall be
relieved of their respective obligations hereunder, to the extent that the
performance of such obligation was actually prevented thereby. During the
existence of any such condition, the affected party shall, nevertheless,
use its best efforts to remove the cause thereof.
13. No Other Rights
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Neither party shall have any rights hereunder to any patents or other
intellectual property of the other party, except as specifically set forth
herein.
14. Incorporation of Provisions from Master Agreement
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The following provisions of the Master Agreement, mutatis mutandis, are
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hereby incorporated by reference into this Agreement for all purposes:
Article VI (Confidentiality);
Article IX (Dispute Resolution);
Section 10.3 (Governing Law);
Section 10.6 (Counterparts);
Section 10.7 (Binding Effect; Assignment);
Section 10.8 (Severability);
Section 10.9 (Failure or Indulgence Not Waiver;
Remedies Cumulative);
Section 10.10 (Amendment);
Section 10.11 (Authority);
Section 10.12 (Interpretation).
In the event of any conflict between any of the foregoing incorporated
provisions of the Master Agreement and any other provision of this
Agreement, such other provisions shall prevail.
15. Entire Agreement
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This Agreement, including Exhibit A attached hereto, is the entire
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agreement between the parties with respect to the subject matter hereof,
and supersedes any prior negotiations and agreements or understandings and
any contemporaneous oral agreements or understandings with respect to the
subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives effective as of the date first
set forth above.
MILLIPORE CORPORATION MYKROLIS CORPORATION
By: /s/ Francis J. Lunger By: /s/ Jean-Marc Pandraud
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Name: Francis J. Lunger Name: Jean-Marc Pandraud
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Title: Executive Vice President Title: President
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EXHIBIT A: Product and Prices
Product: Subassembly from Yonezawa MiE Manufacturing Plant for Molsheim
Labwater:
10176J MICROGARD MINI/C D HP 1/4" 0.1
Iniital Pricing: Mykrolis Standard Cost as of the effective date of this
Agreement as set forth in Mykrolis Oracle System, plus ten
percent of such standard cost.
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