EXHIBIT 10.5
MASTER TRADEMARK LICENSE AGREEMENT
This Master Trademark License Agreement (the "Agreement') is entered into
and effective as of March 31, 2001 (the "Effective Date"), between Millipore
Corporation, a Massachusetts corporation ("MIL"), having an office at 80 Ashby
Road, Bedford, Massachusetts 01730 and Mykrolis Corporation, a Delaware
corporation ("Mykrolis"), having an office at Patriots Park, Bedford,
Massachusetts 01730, with reference to the following:
RECITALS
WHEREAS, the Board of Directors of Millipore Corporation ("MIL") has
determined that it is in the best interest of MIL and its stockholders to
separate Millipore's existing businesses into two independent businesses;
WHEREAS, as part of the foregoing, MIL and Mykrolis, have entered into a
Master Separation and Distribution Agreement (as defined below) which provides,
among other things, for the separation of certain Mykrolis assets and Mykrolis
liabilities, the initial public offering of Mykrolis stock, the distribution of
such stock and the execution and delivery of certain other agreements in order
to facilitate and provide for the foregoing;
WHEREAS, MIL has previously used the mark MILLIPORE in association with
various fields of commercial activity, including, without limitation, the
development, manufacture and sale of high quality devices and equipment for
microelectronic devices and the manufacture of such devices;
WHEREAS, as a result of its commercial activity under the MILLIPORE mark,
and various variations thereof, the MILLIPORE mark is now distinctively
associated with goods and services made or offered by, endorsed by, distributed
by, and/or approved by MIL, and with the high quality of such goods and
services. As a further result of its activities in connection with the
MILLIPORE mark, MIL has acquired and owns the MILLIPORE mark and the variations
thereof registered on the Principal Register of the U.S. Patent & Trademark
Office and more fully described in Exhibit A, attached hereto, as well as
unregistered variations of the MILLIPORE mark which MIL has used in commerce as
of the Effective Date which are also described in Exhibit A;
WHEREAS, it is the intention of Mykrolis to develop a new brand identity
for its goods and services over a commercially reasonable period, and Mykrolis
and MIL have agreed to cooperate in such transition; and
WHEREAS in order to prevent confusion with regard to the MILLIPORE mark,
and variations thereof, to maintain the distinctiveness and goodwill associated
with such marks, and to permit the transition to a new brand identity by
Mykrolis, MIL and Mykrolis now wish to enter into a license agreement permitting
Mykrolis to make continued use of such marks in for a reasonable period and in
an appropriate manner, as set forth below.
NOW, THEREFORE, in consideration of the mutual promises and agreements of
the parties, and of good and valuable consideration the receipt and sufficiency
of which is hereby acknowledged, it is agreed by and between the parties as
follows:
ARTICLE 1.
DEFINITIONS
Defined terms, indicated by the use of initial capitalization, shall have
the meaning ascribed to them below, or, for defined terms not defined below,
shall have the meaning ascribed to them in context upon their first occurrence
in this Agreement. Capitalized terms used herein without definition shall have
the meaning ascribed thereto in the Separation Agreement.
1.1. COLLATERAL MATERIALS. "Collateral Materials" means all packaging,
tags, labels, advertising, promotions, display fixtures, instructions, technical
briefs, data sheets, warranties and other materials of any and all types
associated with the Mykrolis Business Products that are marked with the Licensed
Mark.
1.2. CORPORATE IDENTITY MATERIALS. "Corporate Identity Materials" means
materials that make a trade name use of marks or other identifiers, including,
without limitation, trade names appearing on business cards, letterhead,
stationery, paper stock and other supplies, and signage on real property and
buildings, and excluding, without limitation trademark and service mark uses.
1.3. DISTRIBUTION DATE. "Distribution Date" has the meaning set forth in
the Separation Agreement.
1.4. LEGACY MATERIALS. "Legacy Materials" means objects or materials that
were created by MIL prior to the Separation Date which bear one or more of the
Licensed Marks and which are acquired by Mykrolis pursuant to process by which
assets are allocated to Mykrolis as part of Mykrolis separation from MIL. For
example, and without limitation, Legacy Materials includes product brochures
printed by MIL relating to products which after the separation, shall be sold by
Mykrolis.
1.5. LICENSED MARKS. "Licensed Marks" means the registered marks described
in Exhibit A attached hereto and unregistered variations of such marks in which
Mykrolis has use-based rights.
1.6. LICENSE TERM. "License Term" means the period commencing on the
Effective Date and continuing until the earlier of the expiration of this
Agreement pursuant to Section 6.1 hereof, or the prior termination of this
Agreement by either party pursuant to the terms of this Agreement.
1.7. MARK. "Mark" means any trademark, service mark, trade name, trade
dress, domain name, and the like, or other word, name, symbol or device, or any
combination thereof, used or intended to be used by a Person to identify and
distinguish the products or services of that Person from the products or
services of others and to indicate the source, nature, or quality of such goods
or services or endorsement, sponsorship or affiliation with such goods or
services including without limitation all registrations and applications
therefor throughout the world and all common law and other rights therein
throughout the world.
1.8. MYKROLIS BUSINESS PRODUCTS. "Mykrolis Business Products" means any and
all products of Mykrolis.
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1.9. PERSON. "Person" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization, and a governmental entity or any
department, agency or political subdivision thereof.
1.10. QUALITY STANDARDS. "Quality Standards" means standards of quality
applicable to the Mykrolis Business Products, as in use immediately prior to the
Separation Date, unless otherwise communicated in writing by MIL from time to
time.
1.11. SELL. To "Sell" a product means to sell, transfer, lease or otherwise
dispose of a product. "Sale" and "Sold" have the corollary meanings ascribed
thereto.
1.12. SEPARATION DATE. "Separation Date" means March 31, 2001, or such
other date as may be fixed by the Board of Directors of Millipore Corporation as
identifying that date upon which the line of business operated under the
MILLIPORE mark in the field of microelectronics is separated from MIL and
operated independently by Mykrolis.
1.13. SUBSIDIARY. "Subsidiary" of any Person means a corporation or other
organization whether incorporated or unincorporated of which at least a majority
of the securities or interests having by the terms thereof ordinary voting power
to elect at least a majority of the board of directors or others performing
similar functions with respect to such corporation or other organization is
directly or indirectly owned or controlled by such Person or by any one or more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries;
provided, however, that no Person that is not directly or indirectly wholly-
owned by any other Person shall be a Subsidiary of such other Person unless such
other Person controls, or has the right, power or ability to control, that
Person. For purposes of this Agreement, Mykrolis shall be deemed not to be a
subsidiary of MIL.
1.14. THIRD PARTY. "Third Party" means a Person other than Millipore and
its Subsidiaries and Mykrolis and its Subsidiaries.
1.15. TRADEMARK USAGE GUIDELINES. "Trademark Usage Guidelines" means the
guidelines for proper usage of the Licensed Marks, and any of them, as such
Guidelines may be revised and updated in writing by MIL from time to time.
Without limitation, such Trademark Usage Guidelines include the Corporate
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Identity Manual, dated 1991 which has been previously provided to Mykrolis by
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MIL.
ARTICLE 2.
LICENSES
2.1. LICENSE GRANT. Subject to Mykrolis adherence to the terms and
conditions of this Agreement, MIL grants to Mykrolis a personal, non-exclusive,
worldwide, fully-paid and non-transferable (except as set forth in Section 9.9)
license, with the right to sublicense set forth in Section 2.3 below, to use the
Licensed Marks subject to and pursuant to the license restrictions set forth in
Section 2.2 below, each of which is both a covenant and an express restriction
on the scope of the license granted herein.
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2.2. RESTRICTIONS.
Mykrolis covenants that it shall adhere to the following restrictions, each
of which is also an express limitation on the rights granted to Mykrolis herein.
(a) Mykrolis shall use the Licensed Marks only for the License Term;
(b) Mykrolis shall use the Licensed Marks only in conjunction with
the term "Microelectronics" or such other mark or term as proposed by Mykrolis
and agreed to in writing by MIL at its sole discretion;
(c) Mykrolis shall use the Licensed Marks only in connection with
Mykrolis Business Products, the Sale and offer for Sale of Mykrolis Business
Products, and in the advertisement and promotion of such Mykrolis Business
Products in all fields of use;
(d) Mykrolis shall not mutilate or alter any Licensed Mark, shall
always make proper adjective use of trademarks and service marks included within
the Licensed Marks, shall always use the marks with all relevant proprietary
designations and notices including "(R)" and "(TM)" as appropriate, shall
acknowledge and disclose in all printed materials that make use of one or more
Licensed Marks that "all rights, title, and interests in and to [such Marks] is
owned by Millipore Corporation of Bedford, Massachusetts and [such Marks] are
used with permission," and shall in all other respects use the Licensed Marks in
a manner that is consistent with the Trademark Usage Guidelines, or in such
other manner as is approved in writing by MIL at MIL's sole discretion;
(e) Mykrolis shall use the Licensed Marks in connection with the
below identified Legacy Materials subject to the below stated restrictions.
Mykrolis may use any Millipore Corporation Corporate Identity Materials in
connection with the conduct of the Mykrolis business, up to and including the
Distribution Date, in connection with the Mykrolis business, but only to the
extent that, as of the Separation Date, they are in use, in inventory or on
order and only to the extent such materials exist within the assets transferred
to Mykrolis. During the License Term only, Mykrolis may use Millipore
Corporation Collateral Materials throughout their useful life in connection with
the Mykrolis business, but only to the extent that, as of the Separation Date,
they are in use, in inventory or on order and only to the extent such materials
exist within the assets transferred to Mykrolis. (For clarity, MIL will not be
delegated to develop or publish or provide new or additional Collateral
Materials after the Separation Date.) During the License Term only, Mykrolis may
use molds and other processing equipment which impart a permanent indication of
the Millipore Corporation until such molds and equipment are replaced, modified
or repaired or termination of the agreement whichever occurs first.
(f) Except as allowed by Section 2.2 (b) above, Mykrolis shall not
use the Licensed Marks in direct association with another Mark such that the two
Marks appear to be a single Mark or in any other composite manner with any Marks
of Mykrolis or any Third Party;
(g) Mykrolis shall only use the Licensed Marks in a manner consistent
with the high standards, reputation and prestige represented by the Licensed
Marks, and, without limitation, shall not associate the Licensed Marks with any
conduct, objects, or events which are: morally repugnant or offensive to the
customers of MIL; involve alleged acts of dishonesty or fraud; involve conduct
which is the subject of criminal allegation or investigation; or involves,
causes or relates to allegations of personal injury and/or health risk to users
of products or services bearing or otherwise branded with a Licensed Mark;
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(h) Mykrolis shall not use the Licensed Marks in any manner which is
deceptive or misleading, which ridicules or is derogatory to MIL or any of the
Licensed Marks, or which compromises or reflects unfavorably upon the goodwill,
good name, reputation or image of MIL or the Licensed Mark, or which might
jeopardize or limit MIL's proprietary interest therein.
2.3. SUBLICENSE TO SUBSIDIARIES. Subject to the terms and conditions of
this Agreement, including, without limitation, the restrictions set forth in
section 2.2 above, MIL hereby grants to Mykrolis the right to sublicense such
rights as it has been granted in Section 2.1 above, but only to Subsidiaries of
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Mykrolis, and only provided that: (i) such sublicense is granted pursuant to a
written agreement that is at least as protective of the rights of MIL as this
Agreement; (ii) MIL is named as an express third party beneficiary of each
sublicense agreement with standing to enforce all terms of such agreement in
addition to such other rights and remedies as MIL may have in law and/or equity;
(iii) such sublicense is effective only for so long as the license granted
herein is effective or only for so long as the sublicensee remains a Subsidiary
of Mykrolis, whichever is shorter; (iv) such Sublicense shall not include the
right to grant any further sublicenses; (v) the sublicensee shall be provided a
copy of this Agreement and shall be required, to the extent of their sublicensed
activity, to fulfill all obligations and adhere to all restrictions set forth in
this Agreement; and (vi) Mykrolis shall enforce the sublicense pursuant to
Section 4.3 below. Copies of any and all sublicenses granted hereunder, along
with all draft and versions thereof, shall be provided to MIL by Mykrolis upon
MIL's request therefor.
2.4. COMMUNICATION. Mykrolis hereby consents to MIL using the trademarks,
service marks, and trade names of Mykrolis in communications with MIL's
constituents, shareholders, customers and others as necessary to fairly and
accurately describe the origin of Mykrolis, describing the products and services
of Mykrolis, and describing MIL's relationship with Mykrolis to the extent, if
any, that it exists at the time of the use of such marks.
2.5. RESERVATION OF RIGHTS. Any and all of MIL's rights not expressly
granted to Mykrolis are reserved to MIL. Both parties covenant that they shall
not make any use of the names or marks of the other that is not permitted by
this Agreement.
ARTICLE 3.
ENFORCEMENT OF GUIDELINES AND QUALITY RESTRICTIONS
3.1. REVIEW. At MIL's request, Mykrolis agrees to furnish or make available
for inspection to MIL, free of charge, representative samples of Mykrolis
Business Products and Collateral Materials of Mykrolis and its Subsidiaries that
are marked with one or more of the Licensed Marks. MIL may also independently
conduct customer satisfaction surveys to determine if Mykrolis and its
Subsidiaries are meeting the Quality Standards. Mykrolis shall cooperate with
MIL fully in the carrying out of such surveys at MIL's expense. In the event of
a challenge by MIL, MIL shall, at the request of Mykrolis, provide Mykrolis with
copies of customer surveys used by MIL to determine if Mykrolis is meeting the
Quality Standards. If MIL is notified or determines that Mykrolis or any of
Mykrolis Subsidiaries is not complying with any Trademark Usage Guidelines or
Quality Standards, then, in addition to and without restriction of any other
rights or remedies that MIL may enjoy in law, equity or under this Agreement,
MIL may notify Mykrolis of an event of non-compliance and the provisions of this
Article 3 shall apply.
3.2. INITIAL CURE PERIOD. A notice of non-compliance from MIL shall be in
writing and shall set forth with sufficient particularity to provide notice of
the nature of the non-compliance a description of
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the noncompliance and any requested action for curing such noncompliance.
Mykrolis shall then have sixty (60) days with regard to noncompliance by
Mykrolis or any Subsidiary after receipt of such notice ("Guideline Initial Cure
Period") to correct such noncompliance or submit to MIL a written plan to
correct such noncompliance which written plan is reasonably acceptable to MIL.
3.3. SECOND CURE PERIOD. If such noncompliance continues beyond the
Guideline Initial Cure Period, Mykrolis and MIL shall each promptly appoint a
representative to negotiate in good faith actions that may be necessary to
correct such noncompliance. The parties shall have thirty (30) days following
the expiration of the Guideline Initial Cure Period to agree on corrective
actions, and Mykrolis shall have thirty (30) days from the date of an agreement
of corrective actions to implement such corrective actions and cure or cause the
cure of such noncompliance ("Second Guideline Cure Period").
3.4. FINAL CURE PERIOD. If the noncompliance remains uncured after the
expiration of the Second Guideline Cure Period, then at MIL's election,
Mykrolis, or the noncomplying Subsidiary whichever is applicable, promptly shall
cease and desist from the noncomplying activity. Nothing in this Article 3 shall
be deemed to expand the rights granted to Mykrolis herein, to limit Mykrolis
obligations hereunder, or to preclude MIL from pursuing any other rights or
remedies.
ARTICLE 4.
FURTHER OBLIGATIONS OF THE PARTIES
4.1. TRANSITION. During the License Term Mykrolis shall use good faith
efforts to transition from use of the Licensed Marks to use of New Marks to be
developed by Mykrolis. In addition to such other efforts as Mykrolis may engage
in, Mykrolis covenants that its efforts to transition to New Marks for itself
and its products and services shall, at a minimum, include the following efforts
and meet the following requirements:
(a) Within eighteen (18) months of the Effective Date, Mykrolis shall
have developed New Marks and new brand identifiers for use as replacements for
all Licensed Marks (the "Replacement Marks").
(b) Within twenty four (24) months, Mykrolis shall make regular
commercial use of the Replacement Marks and all use of the Licensed Marks shall
be subordinate to the applicable Replacement Marks. For example, and without
limitation, within twenty four (24) months of the Effective Date each product
bearing a Licensed Mark will also bear the relevant Replacement Marks.
(c) No later than the expiration of the License Term, Mykrolis shall
cease and desist from any use of any kind of the Licensed Marks or any of them.
4.2. THIRD PARTY LICENSES. MIL agrees that it and its Subsidiaries shall
not license or transfer the Licensed Mark to Third Parties for use in connection
with products or services that compete with Mykrolis Business Products for the
term of this Agreement.
4.3. ENFORCEMENT OF AGREEMENTS. Mykrolis shall take all appropriate
measures at Mykrolis expense promptly and diligently to enforce the terms of any
sublicense agreement or other agreement with any Subsidiary and shall restrain
any such Subsidiary from violating such terms, including without limitation (i)
monitoring the Subsidiaries' compliance with the relevant Trademark Usage
Guidelines and Quality Standards and causing any noncomplying Subsidiary
promptly to remedy any failure, (ii)
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terminating such agreement and/or (iii) commencing legal action, in each case,
using a standard of care consistent with MIL's practices as of the Separation
Date. In the event that MIL determines that Mykrolis has failed promptly and
diligently to enforce the terms of any such agreement using such standard of
care, MIL reserves the right to enforce such terms, and Mykrolis shall reimburse
MIL for its fully allocated direct costs and expenses incurred in enforcing such
agreement.
ARTICLE 5.
OWNERSHIP
5.1. MYKROLIS OWNERSHIP. All rights, title, and interests in and to the
Licensed Marks is and shall be owned exclusively by MIL subject to the license
granted herein. All goodwill arising from or relating to the Licensed Marks,
including all goodwill arising from Mykrolis licensed use of the Licensed Marks
hereunder shall inure to the benefit of MIL. Mykrolis shall provide MIL with
written notice each time any Licensed Mark is used in connection with a product,
service, or field or channel of commerce with which Mykrolis has not previously
associated such Licensed Marks or Licensed Marks. Upon MIL's request, and at
MIL's expense, Mykrolis shall cooperate with any effort by MIL to establish,
perfect, exploit or defend its rights in and to the Licensed Marks, including,
without limitation: (i) providing good faith testimony by declaration,
affidavit, in-person or other means whenever such testimony would, in the
reasonable judgment of MIL, be useful to the establishment, perfection,
exploitation or defense of its interests arising from or relating to the
Licensed Marks; (ii) signing further agreements or documentation, including,
without limitation, assignments, consents, and releases; (iii) providing
samples, exemplars, and copies of any and all objects or materials that make use
of one or more of the Licensed Marks, particularly, and without limitation,
where such objects or materials are necessary or useful to any effort to
establish the nature or scope of use of such Licensed Marks in connection with
registration proceedings or litigation; and (iv) providing copies of letters,
e-mails, memoranda, or other communications from Mykrolis customers or any third
party commenting on any or all of the Licensed Marks particularly, and without
limitation, any communications commenting critically or adverse on the quality
of goods or services associated with such Licensed Marks.
5.2. RIGHTS AND REMEDIES. Mykrolis stipulates and agrees that the Licensed
Marks have secondary meaning and are distinctively associated with MIL and the
goods and services of MIL. To the extent not contrary to applicable law,
Mykrolis agrees not to challenge the ownership or validity of the Licensed Marks
or any of them. Mykrolis agrees not to use or register in any country any Mark
that impinges on MIL's rights in the Licensed Marks, or any element thereof. If
any application for registration is, or has been, filed in any country by
Mykrolis which relates to any Mark that impinges on MIL's rights in the Licensed
Marks, Mykrolis shall immediately abandon any such application or registration
or assign it to MIL as MIL may elect.
5.3. LIMITATION ON AUTHORITY. Mykrolis shall not (i) misrepresent to any
Person the scope of its authority under this Agreement, (ii) incur or authorize
any expenses or liabilities chargeable to MIL , or (iii) take any actions that
would impose upon MIL any obligation or liability to a Third Party other than
obligations under this Agreement, or other obligations which MIL expressly
approves in writing for Mykrolis to incur on its behalf. Mykrolis shall not
grant or attempt to grant a security interest in the Licensed Marks, or to
record any such security interest in the United States Patent and Trademark
Office or elsewhere, against any trademark application or registration belonging
to MIL. MIL makes no warranty or representation that trademark registrations
have been or shall be applied for, secured or maintained in the Licensed Marks
throughout, or anywhere within, the world.
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5.4. USE OF MARKS CONSISTENT WITH OWNERSHIP. Mykrolis shall cause to
appear on all Mykrolis Business Products, and all Collateral Materials, such
legends, markings and notices as may be required by applicable law or reasonably
requested by MIL which are necessary or useful to establish, perfect, defend or
exploit the proprietary character of the Licensed Marks. To the extent not
contrary to applicable law, Mykrolis shall not challenge MIL's ownership of or
the validity of the Licensed Mark or any application for registration thereof
throughout the world. Mykrolis shall not use or register in any country any
domain name or any other brand identifier or proprietary interest, whether
recognized currently or in the future, or other designation which would affect
the ownership or rights of MIL in and to the Licensed Mark, or otherwise to take
any action which would adversely affect any of such ownership rights, or assist
anyone else in doing so. Mykrolis shall cause its Subsidiaries to comply with
the provisions of this Article.
5.5. INFRINGEMENT PROCEEDINGS. In the event that the Mykrolis learns of
any infringement or threatened infringement of the Licensed Marks, or any unfair
competition, passing-off or dilution with respect to the Licensed Marks,
Mykrolis shall notify MIL or its authorized representative giving particulars
thereof, and Mykrolis shall provide necessary information and assistance to MIL
or its authorized representatives at MIL's expense in the event that MIL decides
that proceedings should be commenced. Notwithstanding the foregoing, Mykrolis is
not obligated to monitor or police use of the Licensed Marks by Third Parties
other than Subsidiaries. MIL shall have exclusive control of any litigation,
opposition, cancellation or related legal proceedings, relating to the use of
the licensed trademarks by third parties. The decision whether to bring,
maintain or settle any such proceedings shall be at the exclusive option and
expense of MIL, and all recoveries shall belong exclusively to MIL. Mykrolis
shall not and shall have no right to initiate any such litigation, opposition,
cancellation or related legal proceedings in its own name, but, at MIL's
request, agrees to be joined as a party in any action taken by MIL to enforce
its rights in the Licensed Mark. MIL shall incur no liability to Mykrolis or any
other Person under any legal theory by reason of MIL's failure or refusal to
prosecute or by MIL's refusal to permit Mykrolis to prosecute, any alleged
infringement by Third Parties, nor by reason of any settlement to which MIL may
agree.
ARTICLE 6.
TERMINATION
6.1. TERM. This Agreement shall remain in effect for a period of three (3)
years from the Effective Date which shall be automatically renewed for
additional one (1) year period unless earlier terminated as provided below in
6.2.
6.2. VOLUNTARY TERMINATION. By written notice to MIL, Mykrolis may
voluntarily terminate all or a specified portion of the licenses and rights
granted to it hereunder by MIL. Such notice shall specify the effective date of
such termination and shall clearly specify any affected Licensed Mark, Mykrolis
Business Products or services.
6.3. SURVIVAL. Any termination of licenses and rights of Mykrolis under
Section 6.2 shall not affect Mykrolis licenses and rights with respect to any
Mykrolis Business Products made or sold prior to such termination. In addition,
the following provisions shall survive any expiration or termination of this
Agreement and remain in full force and effect: 2.2, 2.5, 4.3, 5.1, 5.2, 5.3.
6.4. OTHER TERMINATION. This Agreement, the Separation Agreement and all
other ancillary agreements may be terminated at any time prior to the IPO
Closing Date by and in the sole discretion of MIL without the approval of
Mykrolis. This Agreement may be terminated at any time after the
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IPO Closing Date and before the Distribution Date by mutual consent of MIL and
Mykrolis. In the event of termination pursuant to this Section 6.4, no party
shall have any liability of any kind to the other party.
ARTICLE 7.
DISPUTE RESOLUTION
7.1. USE AND INITIATION OF PROCEDURE. Except for and expressly excluding
Actions in Equity (as defined in Section 7.15 below), in the event of a dispute
between the parties arising out of or related to this Agreement (the "Dispute")
the parties hereto agree to use the alternative dispute resolution procedures
specified in this section (the "Procedure") in good faith in order to resolve
such dispute. The Procedure may be modified by written agreement of the parties
at the time the Dispute arises. A party seeking to initiate the Procedure shall
give written notice to the other party, describing briefly the nature of the
dispute and its claim and identifying an individual with authority to settle the
dispute on its behalf. The party receiving such notice shall have five (5) days
within which to designate, in a written notice given to the initiating party, an
individual with authority to settle the dispute on its behalf. Neither of such
authorized individuals shall have had direct substantive involvement in the
matters involved in the Dispute.
7.2. UNASSISTED SETTLEMENT. The authorized individuals shall make such
investigation as they deem appropriate and thereafter promptly (but in no event
later than thirty (30) days from the date of the initiating party's notice)
shall commence discussions concerning resolution of the Dispute. If the Dispute
has not been resolved within thirty (30) days from the commencement of
discussions, it shall be submitted to alternative dispute resolution ("ADR") in
accordance with the provisions of Sections 7.3 through 7.10 hereof.
7.3. SELECTION OF NEUTRAL. The parties shall have ten (10) days following
the submission of the Dispute to ADR in accordance with Section 7.2 above to
agree upon a mutually-acceptable person not affiliated with either of the
parties (the "Neutral"). If no Neutral has been selected within such time, the
parties agree jointly to request the American Arbitration Association, the
Center for Public Resources, or another mutually agreed-upon provider of neutral
services to supply within ten (10) days a list of potential Neutrals with
qualifications as specified by the parties in the joint request. Within five (5)
days of receipt of the list, the parties shall independently rank the proposed
candidates, shall simultaneously exchange rankings, and shall select as the
Neutral the individual receiving the highest combined ranking who is available
to serve.
7.4. TIME AND PLACE FOR ADR. In consultation with the Neutral, the parties
shall promptly designate a mutually convenient time and place for the ADR (and
unless circumstances require otherwise, such time to be not later than forty-
five (45) days after selection of the Neutral).
7.5. EXCHANGE OF INFORMATION. In the event either of the parties has
substantial need for information in the possession of the other party in order
to prepare for the ADR, the parties shall attempt in good faith to agree on
Procedures for the expeditious exchange of such information, with the help of
the Neutral if required.
7.6. SUMMARY OF VIEWS. One week prior to the first scheduled session of
the ADR, each party shall deliver to the Neutral and to the other party a
concise written summary of its views on the matter in Dispute.
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7.7. STAFFING THE ADR. In the ADR, each party shall be represented by the
authorized individual and by counsel. In addition, each party may bring such
additional persons as needed to respond to questions, contribute information and
participate in the negotiations, the number of such additional persons to be
agreed upon by the parties in advance, with the assistance of the Neutral, if
necessary.
7.8. CONDUCT OF ADR. The parties, in consultation with the Neutral, shall
agree upon a format for the meetings, designed to assure that both the Neutral
and the authorized individuals have an opportunity to hear an oral presentation
of each party's views on the matter in Dispute, and that the authorized parties
attempt to negotiate a resolution of the matter in Dispute, with or without the
assistance of counsel or others, but with the assistance of the Neutral. To this
end, the Neutral is authorized to conduct both joint meetings and separate
private caucuses with the parties. The Neutral shall keep confidential all
information learned in private caucus with either party unless specifically
authorized by such party to make disclosure of the information to the other
party.
7.9. THE NEUTRAL'S VIEWS. The Neutral (i) shall, unless requested not to
do so by both parties, provide his opinion to both parties on the probable
outcome should the matter be litigated, and (ii) shall make one or more
recommendations as to the terms of a possible settlement, upon any conditions
imposed by the parties (including, but not limited to, a minimum and maximum
amount). The Neutral shall base his opinions and recommendations on information
available to both parties, excluding such information as may be disclosed to him
by the parties in confidence. The opinions and recommendations of the Neutral
shall not be binding on the parties.
7.10. TERMINATION OF PROCEDURE. The parties agree to participate in the ADR
in good faith to its conclusion (as designated by the Neutral) and not to
terminate negotiations concerning resolution of the matters in Dispute until at
least ten (10) days thereafter. Each party agrees not to commence any other
proceeding or to seek other remedies prior to the conclusion of the ten-day post
ADR negotiation period; provided, however, that either party may commence
-------- --------
litigation within five (5) days prior to the date after which the commencement
of litigation could be barred by an applicable statute of limitations or in
order to request an injunction to prevent irreparable harm, in which event, the
parties agree (except as prohibited by court order) to nevertheless continue to
participate in the ADR to its conclusion.
7.11. FEES OF NEUTRAL; DISQUALIFICATION. The fees of the Neutral shall be
shared equally by the parties. The Neutral shall be disqualified as a witness,
consultant, expert or counsel for either party with respect to the matters in
Dispute and any related matters in any subsequent litigation or other proceeding
with respect to the Dispute.
7.12. CONFIDENTIALITY. The parties agree that the Procedure and the ADR are
compromise negotiations for purposes of the Federal Rules of Evidence and the
Rules of Evidence of any state of competent jurisdiction. The entire of the
Procedure and the ADR are confidential, and no stenographic, visual or audio
record shall be made. All conduct, statements, promises, offers, views and
opinions, whether oral or written, made in the course of the Procedure or the
ADR by either of the parties, their agents, employees, representatives, or other
invitees and by the Neutral (who shall be the parties' joint agent for purposes
of these compromise negotiations) are confidential and shall, in addition and
where appropriate, be deemed to be work product and privileged. Such conduct,
statements, promises, offers, views and opinions shall not be discoverable or
admissible for any purposes, including impeachment, in any litigation or other
proceeding involving the parties, and shall not be disclosed to anyone not an
agent, employee, expert, witness, or representative of either of the parties;
provided, however, that evidence
- -------- -------
10
otherwise discoverable or admissible is not excluded from discovery or
admission as a result of its use in the ADR.
7.13. ARBITRATION. Any Dispute which the parties cannot resolve through
mediation within ninety (90) days following the commencement of the Procedure,
unless otherwise mutually agreed, shall be submitted to final and binding
arbitration under the then current Commercial Arbitration Rules of he American
Arbitration Association ("AAA"), by three (3) arbitrators in Boston,
Massachusetts. Such arbitrators shall be selected by the mutual agreement of the
parties or, failing such agreement, shall be selected according to the aforesaid
AAA rules. The arbitrators shall be instructed to prepare and deliver a written,
reasoned opinion stating their decision within thirty (30) days of the
completion of the arbitration. The prevailing party in such arbitration shall be
entitled to expenses, including costs and reasonable attorneys' and other
professional fees, incurred in connection with the arbitration (but excluding
any costs and fees associated with prior ADR, negotiation or mediation). The
decision of the arbitrator shall be final and non-appealable and may be enforced
in any court of competent jurisdiction. The use of any ADR procedures shall not
be construed under the doctrine of laches, waiver or estoppel to adversely
affect the rights of either party.
7.14. CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in
writing, the parties shall continue to provide service and honor all other
commitments under this Agreement during the course of dispute resolution
pursuant to the provisions of this Article 7 with respect to all matters not
subject to such dispute, controversy or claim.
7.15. ACTIONS IN EQUITY. "Actions in Equity" means actions for specific
performance, temporary, preliminary or permanent injunctive relief, or for other
equitable remedies. Notwithstanding any provision of this Agreement, Actions in
Equity may be brought by MIL against Mykrolis and its sublicensees in any court
of competent subject matter and personal jurisdiction.
ARTICLE 8.
LIMITATION OF LIABILITY
IN NO EVENT SHALL EITHER PARTY OR ITS SUBSIDIARIES BE LIABLE TO THE OTHER
PARTY OR ITS SUBSIDIARIES FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL
OR PUNITIVE DAMAGES OR LOST PROFITS OR ANY OTHER DAMAGES, HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF THIS
AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT EACH
PARTY'S OBLIGATIONS EXPRESSLY ASSUMED IN THE MASTER SEPARATION AND DISTRIBUTION
AGREEMENT; PROVIDED FURTHER THAT THE EXCLUSION OF PUNITIVE DAMAGES SHALL APPLY
IN ANY EVENT.
ARTICLE 9.
MISCELLANEOUS PROVISIONS
9.1. DISCLAIMER. EACH PARTY ACKNOWLEDGES AND AGREES THAT THE LICENSED MARK
AND ANY OTHER INFORMATION OR MATERIALS PROVIDED HEREUNDER ARE PROVIDED ON AN "AS
IS" BASIS AND THAT NEITHER PARTY NOR ANY OF ITS SUBSIDIARIES MAKE ANY
REPRESENTATIONS OR EXTENDS ANY WARRANTIES WHATSOEVER, EXPRESS, IMPLIED OR
11
STATUTORY, WITH RESPECT THERETO INCLUDING WITHOUT LIMITATION ANY IMPLIED
WARRANTIES OF TITLE, ENFORCEABILITY OR NON-INFRINGEMENT. Without limiting the
generality of the foregoing, neither MIL nor any of its Subsidiaries makes any
warranty or representation as to the validity of any Licensed Mark licensed by
it to Mykrolis or any warranty or representation that any use of any Licensed
Mark with respect to any product or service shall be free from infringement of
any rights of any Third Party.
9.2. NO IMPLIED LICENSES. Nothing contained in this Agreement shall be
construed as conferring any rights by implication, estoppel or otherwise, under
any intellectual property right, other than the rights expressly granted in this
Agreement with respect to the Licensed Mark. Neither party is required hereunder
to furnish or disclose to the other any information (including copies of
registrations of the Licensed Marks), except as specifically provided herein.
9.3. INFRINGEMENT SUITS. MIL shall have no obligations hereunder to
institute any action or suit against Third Parties for infringement of the
Licensed Marks or to defend any action or suit brought by a Third Party which
challenges or concerns the validity of the Licensed Marks.
9.4. NO OTHER OBLIGATIONS. NEITHER PARTY ASSUMES ANY RESPONSIBILITIES OR
OBLIGATIONS WHATSOEVER, OTHER THAN THE RESPONSIBILITIES AND OBLIGATIONS
EXPRESSLY SET FORTH IN THIS AGREEMENT OR A SEPARATE WRITTEN AGREEMENT BETWEEN
THE PARTIES. Without limiting the generality of the foregoing, neither party,
nor any of its Subsidiaries is obligated to (i) file any application for
registration of any Licensed Mark, or to secure any rights in any Licensed Mark,
(ii) to maintain any Licensed Mark registration, or (iii) provide any
assistance, except for the obligations expressly assumed in this Agreement.
9.5. ENTIRE AGREEMENT. This Agreement, the Separation and Distribution
Agreement and the other Ancillary Agreements (as defined in the Separation and
Distribution Agreement) and the Exhibits and Schedules referenced or attached
hereto and thereto constitute the entire agreement between the parties with
respect to the subject matter hereof and thereof and shall supersede all prior
written and oral and all contemporaneous oral agreements and understandings with
respect to the subject matter hereof and thereof. To the extent there is a
conflict between this Agreement and the Master Assignment and Assumption
Agreement between the parties, the terms of this Agreement shall govern.
9.6. GOVERNING LAW. This Agreement shall be construed in accordance with
and all Disputes hereunder shall be governed by the laws of the Commonwealth of
Massachusetts as applied to transactions taking place wholly within
Massachusetts between Massachusetts residents. The Superior Court of Middlesex
County and/or the United States District Court for the District of Massachusetts
shall have jurisdiction and venue over all Disputes between the parties that are
permitted to be brought in a court of law pursuant to Article 7 above.
9.7. DESCRIPTIVE HEADINGS. The headings contained in this Agreement, in
any Exhibit or Schedule hereto and in the table of contents to this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Any capitalized term used in any Exhibit or
Schedule but not otherwise defined therein, shall have the meaning assigned to
such term in this Agreement. When a reference is made in this Agreement to an
Article or a Section, Exhibit or Schedule, such reference shall be to an Article
or Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated.
12
9.8. NOTICES. Notices, offers, requests or other communications required or
permitted to be given by either party pursuant to the terms of this Agreement
shall be given in writing to the respective parties to the following addresses:
if to MIL:
Millipore Corporation
80 Ashby Road
Bedford, Massachusetts 01730
With a copy :
General Counsel
Millipore Corporation
80 Ashby Road
Bedford, Massachusetts 01730
if to Mykrolis:
Mykrolis Corporation
Patriots Park
Bedford, Massachusetts 01730
With a copy :
General Counsel
Mykrolis Corporation
Patriots Park
Bedford, Massachusetts 01730
Or to such other address as the party to whom notice is given may have
previously furnished to the other in writing as provided herein. Any notice
involving non-performance, termination, or renewal shall be sent by hand
delivery, recognized overnight courier or, within the United States, may also be
sent via certified mail, return receipt requested. All other notices shall be
deemed to have been given and received on the earlier of actual delivery or
three (3) days from the date of postmark.
9.9. NONASSIGNABILITY. Mykrolis shall not, directly or indirectly, in
whole or in part, whether by operation of law or otherwise, assign or transfer
this Agreement or any Licensed Mark except to MIL and any attempted assignment,
transfer or delegation shall be voidable at the sole option of MIL.
9.10. SEVERABILITY. If any term or other provision of this Agreement is
determined by a court, administrative agency or arbitrator to be invalid,
illegal or incapable of being enforced by any rule or law or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner materially
adverse to either party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that the transactions contemplated hereby are fulfilled to the fullest
extent possible.
13
9.11. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No failure or
delay on the part of either party hereto in the exercise of any right hereunder
shall impair such right or be construed to be a waiver of, or acquiescence in,
any breach of any representation, warranty or agreement herein, nor shall any
single or partial exercise of any such right preclude other or further exercise
thereof or of any other right. All rights and remedies existing under this
Agreement are cumulative to, and not exclusive of, any rights or remedies
otherwise available.
9.12. AMENDMENT. No change or amendment shall be made to this Agreement
except by an instrument in writing signed on behalf of each of the parties to
such Agreement.
9.13. COUNTERPARTS. This Agreement, including the Ancillary Agreements and
the Exhibits and Schedules hereto and thereto and the other documents referred
to herein or therein, may be executed in counterparts, each of which shall be
deemed to be an original but all of which shall constitute one and the same
agreement.
9.14. AUTHORITY. Each of the parties hereto represents to the other that
(a) it has the corporate or other requisite power and authority to execute,
deliver and perform this Agreement, (b) the execution, delivery and performance
of this Agreement by it have been duly authorized by all necessary corporate or
other actions, (c) it has duly and validly executed and delivered this
Agreement, and (d) this Agreement is a legal, valid and binding obligation,
enforceable against it in accordance with its terms subject to applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and general equity principles.
WHEREFORE, the parties have signed this Trademark License Agreement
effective as of the date first set forth above.
MILLIPORE CORPORATION MYKROLIS CORPORATION
By: /s/ Francis J. Lunger By: /s/ Jean-Marc Pandraud
--------------------- ----------------------
Name: Francis J. Lunger Name: Jean-Marc Pandraud
----------------- ------------------
Title: Executive Vice President Title: President
------------------------ ---------
14
EXHIBIT A
"LICENSED MARKS"
15
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Tuesday, March 27, 2001 Trademark List Page: 1
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Case Number/Subcase Status Application Registration
Trademark Country Name Class(es) Number/Date Number/Date
- --------------------------------------------------------------------------------------------------------------------
Millipore MIL4/ Registered 1834821 1503169
Argentina 11 31-Jan-1994
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Millipore MIL6/ Registered 1849219 1463740
Argentina 07 11-Aug-1971 31-Aug-1993
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Millipore MIL7/ Registered 1293223 1033254
Argentina 09 11-Aug-1971 05-Jan-1982
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Millipore MIL8/ Registered 1292224 1033255
Argentina 09 11-Aug-1971 05-Jan-1982
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Millipore MIL11/ Pending 826988
Australia 11 09-Mar-2000
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Millipore MIL17/ Registered 212333 212333
Australia 17 01-Jul-1965 29-Jun-1972
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Millipore MIL9/ Registered 195683 195683
Australia 09 01-Jul-1965 29-Jun-1972
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Millipore MIL10/ Registered MA1019/70 67657
Austria 09 05-May-1970 21-Oct-1970
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Millipore MIL11/ Registered 556675 073369
Benelux 09/11 05-Nov-1971
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Millipore MIL12/ Registered 585134 073460
Benelux 07/09/11 05-Nov-1971
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Millipore MIL13/ Registered 13579 06105521
Brazil 09 08-Sep-1971 25-Jun-1975
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Millipore MIL14/ Registered 13580 710135807
Brazil 09, 08-Sep-1971 13-Oct-1981
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Millipore MIL1-BR/ Registered 814753663 814753663
Brazil 7 06-Apr-1989 04-Dec-1990
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Millipore MIL2-BR/ Registered 815378327 815378327
Brazil 23-Feb-1990 12-Jan-1993
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Millipore MIL3-BR/ Registered 815378351 815378351
Brazil 40,15 23-Feb-1990 26-May-1992
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Tuesday, March 27, 2001 Trademark List Page: 2
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Case Number/Subcase Status Application Registration
Trademark Country Name Class(es) Number/Date Number/Date
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Millipore MIL15/ Registered 258694 124755
Canada 06-Sep-1960 29-Dec-1961
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Millipore MIL16/ Registered 544005 329054
Canada 19-Jun-1985 19-Jun-1987
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Millipore MIL17/ Registered 578012 341205
Canada 11-Feb-1987 03-Jun-1988
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Millipore MIL3/ Registered 832437
China 09 21-Apr-1996
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Millipore MIL65/ Registered 812497
China 11 07-Feb-1996
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Millipore MIL61/ Pending
Czech Republic 27-Nov-1996
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Millipore MIL19/ Registered 209471 3111972
Denmark 09 28-Jan-1972
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Millipore Millipore-EM/ Pending 002129138
European Community 01-Mar-2001
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Millipore MIL 20/ Registered 1579146
France 09, 11 07-Mar-1990
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Millipore MIL22/ Registered 16697/22 749946
Germany 10 03-Aug-1960 03-Aug-1960
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Millipore MILLIPORE/ Registered M 32631 889952
Germany 11/9 31-Mar-1970 26-Jan-1972
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Millipore MIL60/ Registered 149456
Hungary 08-Dec-1995
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Millipore MIL27/ Registered 301605 406053
India 11 21-Dec-1974 27-May-1983
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Millipore MIL28/ Registered 301606B
India 9 21-Dec-1974
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Millipore MIL29/ Registered 61711 42719
Iran 6/7/9/11 05-Dec-1974 01-Sep-1975
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Tuesday, March 27, 2001 Trademark List Page: 3
- --------------------------------------------------------------------------------------------------------------------
Case Number/Subcase Status Application Registration
Trademark Country Name Class(es) Number/Date Number/Date
- --------------------------------------------------------------------------------------------------------------------
Millipore MIL30/ Registered 77779
Ireland 11 13-Feb-1970
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Millipore MIL32/ Registered B82669
Ireland 11 02-Jul-1973
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Millipore MIL36/ Registered 40133 40133
Israel 11 12-Dec-1974 31-Aug-1977
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Millipore MIL40/ Registered 40129 40129
Israel 11 12-Dec-1974 31-Aug-1977
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Millipore MIL41/ Registered 50439 50439
Italy 7/9/41 29-Nov-1990 24-Aug-1993
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Millipore MIL42/ Registered 40394 484919
Italy 7/11 07-Apr-1987 16-Oct-1987
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Millipore MIL43/ Registered 40004-C/71 267731
Italy 7,9,41 08-Mar-1971 24-Feb-1973
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Millipore MIL43/ Registered 107138/84 2050966
Japan 10 09-Oct-1984 26-May-1988
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Millipore MIL44/ Registered 07725096 1153658
Japan 11 27-Jul-1995 25-Dec-1995
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Millipore MIL64/ Registered 8290 6589
Kazakhstan 27-Feb-1996 02-Jun-1998
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Millipore MIL45/ Pending 9019865
Korea, Republic of 38 05-Jul-1990
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Millipore MIL46/ Registered 9019860 235560
Korea, Republic of 38 05-Jul-1990 10-Apr-1992
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Millipore MIL47/ Registered 90-19864 40-220484
Korea, Republic of 1 05-Jul-1990 29-Aug-1991
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Millipore MIL48/ Registered 90-19858 40-220482
Korea, Republic of 1 05-Jul-1990 29-Aug-1991
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Millipore MIL50/ Registered 166880
Mexico 26 17-Jul-1971
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Tuesday, March 20, 2001 Trademark List Page: 4
- --------------------------------------------------------------------------------------------------------------------
Case Number/Subcase Status Application Registration
Trademark Country Name Class(es) Number/Date Number/Date
- --------------------------------------------------------------------------------------------------------------------
Millipore MIL51/ Registered 166879
Mexico 31 17-Jul-1971
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Millipore MIL52/ Registered 102566 80422
Norway 9&11 12-Feb-1970 30-Oct-1970
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Millipore Millipore/ Unfiled
Philippines
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Millipore MIL59/ Registered Z-154351 R-105215
Poland 1,9 14-Dec-1995 14-Dec-1998
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Millipore MIL1/ Registered 26302 162993
Portugal 7 23-Jun-1992 07-Oct-1992
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Millipore MIL2/ Registered 26304 162995
Portugal 11 23-Jun-1992 10-Jul-1992
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Millipore MIL62/ Registered 95714454/50 150303
Russian Federation 9,1 19-Dec-1995 28-Feb-1997
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Millipore millipore5/ Registered 1929397 1929397
Spain 5 03-Nov-1994 05-Jan-1996
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Millipore millsp/ Registered 540324 540324
Spain 9 27-Jul-1967 10-Mar-1971
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Millipore millsp2/ Registered 526309 526309
Spain 3 04-Mar-1967 20-Mar-1979
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Millipore MIL54/ Registered 26845 114070
Sweden 17 24-Sep-1965
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Millipore MIL55/ Registered 247088
Switzerland 14-May-1970
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Millipore MIL56/ Registered 49286
Taiwan 8 01-Jan-1991
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Millipore MIL57/ Registered 79024003 517866
Taiwan 84 16-Mar-1991
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Millipore MIL58/ Registered 79024013 508824
Taiwan 74 01-Jun-1990 16-Dec-1990
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Tuesday, March 27, 2001 Trademark List Page: 5
- --------------------------------------------------------------------------------------------------------------------
Case Number/Subcase Status Application Registration
Trademark Country Name Class(es) Number/Date Number/Date
- --------------------------------------------------------------------------------------------------------------------
Millipore Mill63/ Pending 96020551
Ukraine 1, 9, 11 26-Feb-1996
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Millipore MIL24/ Registered B810289
United Kingdom 09 03-Sep-1960
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Millipore MIL26/ Registered B815562
United Kingdom 10 12-Jan-1961
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Millipore LIC-00001/ Unfiled ALL
United States of America
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Millipore MIL/ Registered 86811 0700967
United States of America 31 07-Dec-1959 12-Jul-1960
- --------------------------------------------------------------------------------------------------------------------
Millipore MIL1/ Registered 72/278517 878602
United States of America 9 17-Aug-1967 14-Oct-1969
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Millipore Millipore/ Allowed 1998-019384
Venezuela 10 20-Oct-1998
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Millipore Mill-VN/ Unfiled
Viet Nam
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