EXHIBIT 2.4
MASTER PATENT LICENSE AGREEMENT
(MIL to MMI)
This Master Patent License Agreement (the "Agreement') is effective as of
March 31, 2001 (the "Effective Date"), between Millipore Corporation, a
Massachusetts corporation, having an office at ▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ("MIL") and Millipore MicroElectronics, Inc., a Delaware
corporation ("MMI"), having an ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇.
WHEREAS, the Board of Directors of 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 MMI, have entered into a Master
Separation and Distribution Agreement (as defined below) which provides, among
other things, for the separation of certain MMI assets and MMI liabilities, the
initial public offering of MMI 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, each of the parties have in the past used the same patented
technology in each of their businesses relating to membrane manufacture, filter
manufacture, filter design and other such commonly used inventions ("Commonly
Used Inventions");
WHEREAS, the parties deem that it is necessary for the successful operation
of each entity after the separation for each party to have the right to practice
the Commonly Used Inventions in certain fields of use; and
WHEREAS in order to accomplish this, MIL agree to license the Licensed
Patents (as defined below) to the Commonly Used Inventions to MMI in certain
fields of use after the separation of the MMI business.
NOW, THEREFORE, in consideration of the mutual promises of the parties, and
of good and valuable consideration, it is agreed by and between the parties as
follows:
ARTICLE 1
DEFINITIONS
For the purpose of this Agreement, the following capitalized terms are
defined in this Article 1 and shall have the meaning specified herein:
1.1 MASTER SEPARATION AND DISTRIBUTION AGREEMENT. "Master Separation and
Distribution Agreement" means the Master Separation and Distribution Agreement
between the parties.
1.2 MIL LICENSED PATENTS. "MIL Licensed Patents" means those Patents and
Applications set forth in the Exhibit A hereto , any patents that issue from any
of the Applications or claiming priority from the Applications, any related
applications, divisionals, continuations, continuation-in-part, reissues or
reexaminations of the Patents and/or Applications.
1.3 MIL Field of Use " means BIOPHARM including
pharmaceutical/biotechnology and genetic engineering companies as well as
manufacturers of cosmetics, medical devices, diagnostic products and clinical
analytical products; LAB & LIFE SCIENCE RESEARCH including government,
university and private research and testing analytical laboratories for
protenomic, genomic, microbiological, enviromental and other such areas; and
FOOD & BEVERAGE including companies that manufacture or process foods and
beverages including dairy products, beer, wine, juice and soft drink
manufacturers and bottled water companies.
1.4 MIL OPTIONED PATENTS. "MIL Optioned Patents" means those Patents and
Applications set forth in the Exhibit B hereto, any patents that issue from any
of the Applications or claiming priority from the Applications, any related
applications, divisionals, continuations, continuation-in-part, reissues or
reexaminations of the Patents and/or Applications
1.5 MMI FIELD OF USE. "MMI Field of Use" means means IC MANUFACTURERS
including companies that manufacture integrated circuits, semiconductors,
semiconductor chips and other microelectronics components, flat panel displays,
fiber optic cables, optical coatings and solar cells; IC OEM EQUIP & MATERIALS
MANUFACTURING including companies that manufacture equipment for the fabrication
and processing of semiconductors and integrated circuits for sale to IC
Manufacturing Companies 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 IC Manufacturers for use in fabrication process for the IC
Manufacture industry and which provide products and systems to purify, monitor
and control atmospheric conditions in clean room manufacturting enviroments of
the IC Manufacturing Industry; and IC RESEARCH LABORATORIES including
university, government 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.
1.6 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.
1.7 SEPARATION DATE. "Separation Date" means March 31, 2001, or such other
date as may be fixed by the Board of Directors of Millipore Corporation.
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1.8 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, MMI shall be deemed not to be a
subsidiary of MIL.
1.9 THIRD PARTY. "Third Party" means a Person other than MIL and its
Subsidiaries and MMI and its subsidiaries.
1.10 PRODUCTS "Products" shall mean any product made sold or otherwise
disposed of by MMI outside of the MIL Field of Use.
ARTICLE 2
LICENSES
2.1 LICENSE GRANT. MIL grants (and agrees to cause its appropriate
Subsidiaries to grant) to MMI a personal, irrevocable, exclusive, worldwide,
fully-paid, royalty-free and non-transferable (except as set forth in Section
8.10) license to the MIL Licensed Patents to make, have made, use, sell or
otherwise dispose of Products in the MMI Field of Use.
2.2 OPTION TO LICENSE. MIL grants to MMI a personal, irrevocable,
exclusive option for a period of five (5) years from the date of this agreement
to elect to obtain a license under one or more of the MIL Optioned Patents. It
is contemplated that more than option election may be exercised during this time
period. If any such an option is exercised, the license granted shall be
personal, irrevocable, exclusive, worldwide, no upfront fee, with a 5% royalty
based on Net Sales and non-transferable (except as set forth in Section 8.10) to
use the MIL Optioned Patent(s) to make, have made, use, sell or otherwise
dispose of Products in the MMI Field of Use.
2.3 LICENSE RESTRICTIONS.
(a) MMI shall not use the MIL Licensed Patents in connection with any
products or services other than in the MMI Field of Use.
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(b) MMI 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
MMI to incur on its behalf.
2.4 RESERVATION OF RIGHTS. Except as otherwise expressly provided in this
Agreement, MIL shall retain all rights in and to the MIL Licensed Patents,
including without limitation:
(a) All rights of ownership in and to the MIL Licensed Patents;
(b) The right to use (including the right of MIL's Subsidiaries to
use) the MIL Licensed Patents, in all fields of use except for
the MMI Field of Use; and
(c) The right to license Third Parties to use the MIL Licensed
Patents except in the MMI Field of Use.
ARTICLE 3
PERMITTED SUBLICENSES BY MMI
3.1 SUBLICENSES TO SUBSIDIARIES. Subject to the terms and conditions of
this Agreement, MMI may grant sublicenses to its Subsidiaries to use the MIL
Licensed Patents in accordance with the license grants in Sections 2.1 and 2.2
above; provided that (i) MMI enters into a written sublicense agreement with
each such Subsidiary sublicensee, and (ii) such agreement does not include the
right to grant further sublicenses other than in the case of a sublicensed
Subsidiary of MMI, to another Subsidiary of MMI. MMI shall provide copies of
such written sublicense agreements to MIL upon request. If MMI grants any
sublicense rights pursuant to this Section 3.1 and any such sublicensed
Subsidiary ceases to be a Subsidiary, then the sublicense granted to such
Subsidiary pursuant to this Section 3.1 shall terminate 180 days from the date
of such cessation.
3.2 ENFORCEMENT OF AGREEMENTS. MMI shall take all appropriate measures at
MMI's 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 terms and conditions of this
Agreement and causing any noncomplying Subsidiary promptly to remedy any
failure, (ii) 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 MMI 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 MMI shall reimburse
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MIL for its fully allocated direct costs and expenses incurred in enforcing such
agreement, plus all out-of-pocket costs and expenses, plus five percent (5%).
ARTICLE 4
PROTECTION OF LICENSED PATENTS
4.1 OWNERSHIP AND RIGHTS. To the extent not contrary to applicable law,
MMI agrees not to challenge the ownership or validity of the Licensed Patents.
MMI shall not disparage or adversely affect the validity of the Licensed
Patents. MMI shall not acquire or assert any ownership rights therein.
4.2 PROTECTION OF PATENTS. MMI shall assist MIL, at MIL's request and
expense, in the procurement and maintenance of MIL's intellectual property
rights in the Licensed Patents. MMI will not grant or attempt to grant a
security interest in the Licensed Patents, or to record any such security
interest in the United States Patent and Trademark Office or elsewhere, against
any MIL Licensed Patent. MIL makes no warranty or representation that the
Licensed Patents will be secured or maintained anywhere within the world.
4.3 INFRINGEMENT PROCEEDINGS. (a) In the event that the MMI Patent Counsel
learns of any infringement or threatened infringement of the Licensed Patents,
MMI shall notify MIL or its authorized representative in writing giving
particulars thereof ("Notice"), and MMI shall provide necessary information and
assistance to MIL or its authorized representatives at MMI's expense to assist
MIL or its authorized representatives in determining whether proceedings should
be commenced. Notwithstanding the foregoing, MIL is not obligated to monitor or
police use of the Licensed Patents by Third Parties.
(b) Within sixty (60) days of the Notice, MIL shall inform MMI in
writing of its decision whether to commence proceedings against the third party
for infringement of the Licensed Patent ("Decision"). If MIL elects to commence
proceedings, it shall do so with ninety (90) days of its Decision. In the event
that MIL commences proceedings, MIL shall have exclusive control of the decision
whether to bring, maintain or settle any such proceedings, said proceedings
shall be at the exclusive option and expense of MIL, and all recoveries shall
belong exclusively to MIL. MMI shall provide reasonable assistance to MIL in the
prosecution of the proceedings as may be requested by MIL or its authorized
representatives. MIL shall incur no liability to MMI or any other Person under
any legal theory by reason of MIL's failure or refusal to prosecute nor by
reason of any settlement to which MIL may agree.
(c) In the event that MIL in its Decision elects not to commence
proceedings or fails to commence proceedings within the ninety (90) days of the
Decision, then MMI may at its election, elect to initiate proceedings against
the third party in its own name ("Election"). MMI shall provide MIL of written
notice of this Election at least thirty (30) days before commencing proceedings.
MIL agrees to be named as a necessary party if required by law and to provide
reasonable assistance to MMI in the prosecution of the proceedings
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as may be requested by MMI or its authorized representatives. MMI shall have
exclusive control of the decision whether to bring, maintain or settle any such
proceedings, said proceedings shall be at the exclusive option and expense of
MMI, and all recoveries shall belong exclusively to MMI. Any settlement made by
MMI that would effect any right outside of the MMI Field of Use shall be
approved by MIL prior to the execution of such settlement with agreed upon
sharing of the settlement proceeds between MIL and MMI based on the fields of
use. MIL reserves the right to refuse to approve any settlement which involves
rights within the MIL Field of Use.
ARTICLE 5
TERMINATION
5.1 TERM. This Agreement shall remain in effect until the last of the
patents licensed hereunder shall expire or otherwise be terminated, unless this
Agreement is earlier terminated as provided below.
5.2 VOLUNTARY TERMINATION. By written notice to MIL, MMI 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 Patents.
5.3 SURVIVAL. Any termination of licenses and rights of MMI under Section
5.2 shall not affect MMI's licenses and rights with respect to any Products made
or sold prior to such termination.
5.4 OTHER TERMINATION. This Agreement , the Master 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
MMI. This Agreement may be terminated at any time after the IPO Closing Date
and before the Distribution Date by mutual consent of MIL and MMI. In the event
of termination pursuant to this Section 5.4, no party shall have any liability
of any kind to the other party.
ARTICLE 6
DISPUTE RESOLUTION
6.1 USE AND INITIATION OF PROCEDURE. 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
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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.
6.2 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 6.3 through 6.10 hereof.
6.3 SELECTION OF NEUTRAL. The parties shall have ten (10) days following
the submission of the Dispute to ADR in accordance with Section 6.2 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.
6.4 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).
6.5 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.
6.6 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.
6.7 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.
6.8 CONDUCT OF ADR. The parties, in consultation with the Neutral, will
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
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meetings and separate private caucuses with the parties. The Neutral will 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.
6.9 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.
6.10 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.
6.11 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.
6.12 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 will 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 otherwise discoverable or admissible is not
excluded from discovery or admission as a result of its use in the ADR.
6.13 ARBITRATION. Any Dispute which the parties cannot resolve through
mediation within ninety (90) days following the commencement of the Procedure,
unless otherwise
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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 will 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 will not be construed
under the doctrine of laches, waiver or estoppel to adversely affect the rights
of either party.
6.14 CONTINUITY OF SERVICE AND PERFORMANCE. Unless otherwise agreed in
writing, the parties will continue to provide service and honor all other
commitments under this Agreement and each Ancillary Agreement during the course
of dispute resolution pursuant to the provisions of this Article IX with respect
to all matters not subject to such dispute, controversy or claim.
ARTICLE 7
LIMITATION OF LIABILITY
IN NO EVENT SHALL MIL OR ITS SUBSIDIARIES BE LIABLE TO MMI 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 MIL 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 SEPARATION AND DISTRIBUTION AGREEMENT;
PROVIDED FURTHER THAT THE EXCLUSION OF PUNITIVE DAMAGES SHALL APPLY IN ANY
EVENT.
ARTICLE 8
MISCELLANEOUS PROVISIONS
8.1 DISCLAIMER. MMI ACKNOWLEDGES AND AGREES THAT ALL LICENSED PATENTS ARE
LICENSED OR PROVIDED ON AN "AS IS" BASIS AND THAT NEITHER MIL NOR ANY OF ITS
SUBSIDIARIES MAKE ANY REPRESENTATIONS OR EXTENDS ANY WARRANTIES WHATSOEVER,
EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT THERETO INCLUDING WITHOUT LIMITATION
ANY IMPLIED WARRANTIES OF TITLE, ENFORCEABILITY OR NON-INFRINGEMENT. Without
limiting the generality of the foregoing, MIL makes no any warranty or
representation as to the validity of any Licensed Patent licensed by it to MMI
or any warranty or representation that any use of
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any Licensed Patent with respect to any product or service will be free from
infringement of any rights of any Third Party.
8.2 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 Patents. MIL is not required hereunder
to furnish or disclose to MMI any information (including copies of the Patents),
except as specifically provided herein.
8.3 INFRINEMENT SUITS. MIL shall have no obligations hereunder to
institute any action or suit against Third Parties for infringement of any of
its Licensed Patents or to defend any action or suit brought by a Third Party
which challenges or concerns the validity of any of its Licensed Patents.
8.4 PATENT MARKING Neither party is obligated to ▇▇▇▇ any of its Products
made under one or more of the Licensed Patents with the appropriate U S Patent
Number nor is either party obligated to acknowledge that the Products are made
under licenses provided by the other party.
8.5 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 MIL, nor
any of its Subsidiaries is obligated to (i) file any application for patent of
any invention not currently the subject of a patent application, or to secure
any rights in any Patents, (ii) to maintain any MIL Licensed Patent, or (iii)
provide any assistance, except for the obligations expressly assumed in this
Agreement.
8.6 ENTIRE AGREEMENT. This Agreement, the Master Separation and
Distribution Agreement and the other Ancillary Agreements (as defined in the
Master 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
General Assignment and Assumption Agreement between the parties, the terms of
this Agreement shall govern.
8.7 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
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venue over all Disputes between the parties that are permitted to be brought in
a court of law pursuant to Article 7 above.
8.8 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.
8.9 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
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
General Counsel
Millipore Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
if to MMI:
Millipore MicroElectronics, Inc.
Patriots Park
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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.
8.10 NONASSIGNABILITY. MMI shall not, directly or indirectly, in whole or
in part, whether by operation of law or otherwise, assign or transfer this
Agreement, without MIL's prior written consent, and any attempted assignment,
transfer or delegation without such prior written consent shall be void able at
the sole option of MIL. Notwithstanding the foregoing, each party (or its
permitted successive assignees or transferees hereunder) may assign or transfer
this Agreement as a whole without consent to a Person that
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succeeds to all or substantially all of the business or assets of such party as
long as such Person agrees to accept all the terms and conditions set forth
herein. Without limiting the foregoing, this Agreement will be binding upon and
inure to the benefit of the parties and their permitted successors and assigns.
8.11 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.
8.12 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.
8.13 AMENDMENT. No change or amendment will be made to this Agreement
except by an instrument in writing signed on behalf of each of the parties to
such Agreement.
8.14 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.
8.15 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 Master Patent License Agreement
effective as of the date first set forth above.
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Millipore MicroElectronics, Inc. Millipore Corporation
By:_____________________ By:____________________
Name:___________________ Name:__________________
Title:____________________ Title:___________________
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EXHBIIT A
TO MASTER PATENT LICENSE AGREEMENT
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