Exhibit
10.19


 


SHARING AGREEMENT


 


This
Agreement is made and entered into as of the 30th day of
August, 2010, by and between Bruker Corporation (“BRKR”), a Delaware
corporation and Bruker Energy & Supercon Technologies, Inc. (“BEST”),
a Delaware corporation, together with their respective Affiliates.


 


WITNESSETH:


 


WHEREAS,
BEST currently is a wholly owned subsidiary of BRKR;


 


WHEREAS,
each party hereto may use certain names, trademarks and other intellectual
property owned by the party hereto and may use certain services, facilities,
products and related items of other of the party hereto; and


 


WHEREAS,
the parties hereto desire to confirm by a written agreement the arm’s-length
terms and conditions under which all such use has taken place and shall take
place in the future;


 


NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants contained
herein, the parties hereto hereby agree as follows:


 


1.0          Definitions


 


1.1          “Affiliate” shall mean any person or
entity which, directly or indirectly, controls a party hereto, or is controlled
by a party hereto, it being understood that for such purposes “control” shall
mean possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person or entity, whether
through the ownership of voting securities or by contract or otherwise.


 


1.2          “Change of Control” shall mean, with
respect to any party hereto, a change in the possession to a third party who is
presently not an Affiliate, directly or indirectly, of the power to direct or
cause the direction of the management of policies of such party, whether


 

















 


through
a change in the ownership of voting securities or by contract or otherwise
which occurs prior to completion of a public offering of at least $25,000,000
(twenty five million dollars) on a well-established public stock market (e.g.
NASDAQ, Deutsche Boerse, or others). An initial public offering and transfer of
control of a party to public ownership shall specifically not constitute a
Change of Control.


 


1.3          “Intellectual Property” shall mean all
patents, patent applications, inventions, trademarks, trademark applications,
copyrights, copyright applications, trade secrets, common law rights and other
intellectual property rights of any nature whatsoever in existence as of the
date hereof.


 


1.4          “Lien” shall mean, with respect to any
item, any mortgage, deed of trust, pledge, hypothecation, assignment, security
interest, lien, charge, restriction, adverse claim by a third party, title
defect or encumbrance of any kind.


 


1.5          The “Name” shall mean the name “Bruker”, any logos associated therewith, and all
Intellectual Property rights related thereto together with all goodwill
associated therewith.


 


2.0          Name


 


2.1          The parties acknowledge that BRKR owns
the entire right, title and interest in and to the Name.


 


2.2          BRKR hereby confirms that BEST has
properly used the Name prior to the date hereof.


 


2.3          BRKR hereby grants BEST a perpetual,
irrevocable, non-exclusive, royalty-free, non-transferable right and license to
use the Name in connection with the conduct


 


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and
operation of the business, as the same may be conducted from time to time, of
BEST, subject to and in accordance with the following:


 


2.3.1       BEST shall use the Name in such a manner
that it does not interfere with BRKR’s use of the Name. Moreover, BEST will
continue to utilize additional names in conjunction with the Name to identify
clearly the scope and purpose of the autonomous business of BEST.


 


2.3.2       BEST shall not at any time, directly or
indirectly, take any material action which materially detracts from the
goodwill associated with the Name.


 


2.3.3       Notwithstanding the irrevocable,
perpetual nature of the license set forth in this Section 2.3, BEST’s
license under this Section 2.3 may become null and void at the option of
BRKR, which option must be exercised in writing within ninety (90) days of the
occurrence if BEST (a) files a voluntary petition for bankruptcy, (b) has
an involuntary petition for bankruptcy filed against it which remains
un-dismissed for at least sixty (60) consecutive days, (c) fails to comply
with the provisions of this Section 2.3, (d) suffers a major loss of
its reputation in its industry or marketplace, such as by the distribution of
defective, harmful, illegal, or dangerous goods or merchandise which materially
detracts from the goodwill associated with the Name, (e) undergoes a
Change of Control, or (f) is owned less than fifty percent (50%) by
BRKR.  However, if BEST receives such
written notice under this Section 2.3.3, BEST shall be given a ninety (90)
day period after receipt of such written notice to cure the problem or
occurrence which led to the notice. If BEST undergoes a Change of Control or is
owned less than fifty percent (50%) by BRKR, then BRKR shall give BEST up to
one (1) year after such occurrence to discontinue use of the Name.


 


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2.3.4      While the license set
forth in this Section 2.3 is non-transferable, BEST shall have the right
to have its Affiliates use the Name subject to and in accordance with the
following:


 


2.3.4.1    Use by an Affiliate shall be subject to all
the conditions of this Section 2.3.


 


2.3.4.2    BEST shall be fully responsible under this
Agreement for the use of the Name by such Affiliate.


 


2.3.5      BEST shall take no
action which would cause a Lien to be placed on the Name or on BEST’s license
rights under this Section 2.3.


 


2.4          In the event BEST at
any time believes a person or entity is infringing the Name or in the event
BEST’s use of the Name at any time leads to a claim that it is infringing the
rights of a third party, the parties hereto will work together and cooperate in
good faith with respect to the handling of such matter. The financial burden of
enforcing the rights in the Name will be shared equitably between the parties
hereto.


 


3.0          Technology


 


3.1          The parties
acknowledge that each party hereto (a) owns various technology and the
Intellectual Property relating thereto, and (b) has used and uses the
technology and Intellectual Property of other parties hereto; provided,
however, that use of the patents and patent applications included in such
Intellectual Property by each party hereto (other than use pursuant to the
separate written agreements referred to in Section 3.3 below) is limited
to use of those patents and patent applications as in effect prior to the date
hereof.


 


3.2          Each party confirms
that the other party hereto has properly used its technology and related
Intellectual Property prior to the date hereof.


 


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3.3          Each party
acknowledges that certain specific written agreements may be in place between
the parties hereto defining the use, royalties and terms and conditions of use
of technology and related Intellectual Property. This Agreement shall not
supersede or replace any such existing written agreements pertaining to the
subject matter hereof. For all technology and related Intellectual Property
which is not governed by a specific separate written agreement, if any, between
the parties or between any one or more parties and a third party, each party
hereby grants the other party hereto a perpetual, irrevocable, non-exclusive,
royalty free, non-transferable right and license to use the technology and
related Intellectual Property of the granting party in connection with the
conduct and operation of the business, as the same may be conducted from time
to time, of such other party, unless such other party hereto undergoes a Change
of Control, subject to and in accordance with the following:


 


3.3.1       In the event a party (the “First Party”)
desires to make a broader use of the technology or Intellectual Property of the
other party (the “Second Party”) hereto than the use of such Intellectual
Property by the First Party as of the date hereof, the two parties shall
negotiate in good faith regarding the possibility of entering into a written
agreement permitting the First Party to make such broader use,  on arm’s length terms and conditions such as
would be utilized in a typical transaction with a person or entity not a party
to this Agreement; provided, however, that neither the First Party nor the
Second Party shall have any obligation to enter into any such agreement.


 


3.3.2       The First Party shall
at no time take any action which would materially adversely affect the value of
any technology or Intellectual Property of any other party hereto, which has
been made available to the First Party hereunder.


 


3.3.3                     Each party shall use the
technology and Intellectual


 


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Property
of the other party in such a manner that it does not materially interfere with
the other party’s use thereof.


 


3.3.4      While the license set
forth in this Section 3.3 is non-transferable, a party shall have the
right to have its Affiliates use the technology or Intellectual Party of the
other party hereto, subject to and in accordance with the following:


 


3.3.4.1    Use by an Affiliate shall be subject to all
of the conditions of this Section 3.3.


 


3.3.4.2    The party to this Agreement which permits
its Affiliate to use the technology or Intellectual Property of the other party
shall be fully responsible for the use thereof by such Affiliate.


 


3.3.5      No party shall take any
action which shall cause a Lien to be placed on the technology or Intellectual
Property of another party hereto or on such party’s license rights under this Section 3.3.


 


3.4          In the event a party
at any time believes a person or entity not a party to this Agreement is
infringing the technology or Intellectual Property of a party to this Agreement
or in the event a party’s use of the technology or Intellectual Property of a
party to this Agreement at any time leads to a claim that such using party is
infringing the rights of a third party, the party which owns such technology or
Intellectual Property will be responsible for the handling of such matter,
provided that such owning party shall receive reasonable cooperation in
connection therewith from the other party hereto which uses such technology or
Intellectual Property.


 


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4.0          Distribution


 


4.1          The parties
acknowledge that prior to the date hereof they have used, and may continue to
use after the date hereof, selected common distribution channels for their
respective products, including through the Affiliates of the parties hereto.


 


4.2          Such common
distribution channels shall continue, and no party shall take any action which
would interfere with the right of any other party hereto to use such
distribution channels.


 


4.3          The terms and
conditions of sale and the transfer pricing for such distribution will be on an
arm’s length basis as would be utilized in a typical transaction with a person
or entity not a party to this Agreement.


 


4.4          No common sales
channel shall have any exclusivity in any country or other geographic area and
any party hereto shall have the right to establish its own subsidiary sales
channel or third-party sales channel in any country or other geographic area at
any time for any reason.  However, in
this case sixty (60) days prior written notice shall be given.


 


4.5          In addition to the
ability to establish a new sales channel as described in Section 4.4
hereof, a party hereto shall have the right at any time to establish additional
exclusive or non-exclusive sales channels in any country, geographic area or
market segment with sixty (60) days prior written notice.


 


5.0          Shared Services


 


Any
subleases of facilities, sharing of employees, shared services such as payroll
services and any related matters may occur as the parties hereto may agree from
time to time as evidenced by a written agreement containing arm’s length terms,
conditions and pricing.


 


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6.0          Purchases


 


To
the extent that prior to the date hereof a party has purchased items from the
other party hereto, such purchases may occur after the date hereof subject to
and in accordance with the following:


 


6.1          The prices shall be
prices in effect as of the date hereof, provided that there may be a yearly
price increase in an amount not to exceed the yearly increase in the Consumer
Price Index, or corresponding index of the country in which the manufacture
occurs.


 


6.2          The terms and
conditions or supply agreements, if any, shall be as previously established by
the parties.


 


7.0          Miscellaneous
Provisions


 


7.1          This Agreement shall
be governed by and construed in accordance with either the laws of the
Commonwealth of Massachusetts.


 


7.2                             All notices
given hereunder shall be in writing and sent by certified mail, return receipt
requested or by facsimile (receipt confirmed) to the principal place of
business of each party hereto to the attention of its CEO, provided that a
party may change its address for notice in writing.


 


7.3          Subject to the
prohibitions on transferability set forth herein, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.  To
the extent set forth herein, this Agreement shall bind the Affiliates of the
parties hereto.


 


7.4.         The headings of the
provisions of this Agreement have been inserted for convenience of reference
only and shall not be deemed to be part of this Agreement.


 


7.5          This Agreement may be
executed in any number of counterparts and by the different parties hereto in
separate counterparts, each of which when so executed and


 


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delivered
shall be an original, but all of which together shall constitute one and the same
instrument, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart.  Facsimile or PDF signatures may be treated as
original signatures.


 


7.6          In the event that any
one or more of the provisions contained herein is held to be void or
unenforceable for any reason, the validity or enforceability of the remainder
of this Agreement shall continue in full force and effect, and such void or
unenforceable provision shall be enforced to the maximum extent permissible.


 


7.7          This Agreement does
not supersede any prior or contemporaneous written agreements in connection
with the subject matter hereof.  This
Agreement may be amended or waived only by a written instrument executed by all
parties hereto.


 


IN
WITNESS WHEREOF, the parties hereto have executed this Agreement under seal in
a series of counterpart originals as of the date first written above.


 


	
  BRUKER CORPORATION

  	
   

  	
  BRUKER
  ENERGY & SUPERCON

  
	
   

  	
   

  	
  TECHNOLOGIES, INC.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/
  Richard M. Stein

  	
   

  	
  By:

  	
  /s/
  Burkhard Prause

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Title: Secretary

  	
   

  	
  Title:
  President and CEO

  



 


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