DATE TO
THE CLOSING DATE, OR AT SUCH OTHER TIMES AS THE PARTIES MAY AGREE, METRON SHALL
PROVIDE FSI WITH AN UPDATED SPARE PARTS PURCHASE ORDER LISTING, INCLUDING A
LISTING AS OF THE CLOSING DATE.
(C)
WITH RESPECT TO PURCHASE ORDERS FOR SPARE PARTS THAT ARE
OUTSTANDING AS OF THE CLOSING DATE AND TRANSFERRED TO AND ASSUMED BY FSI OR ITS
AFFILIATES IN ACCORDANCE WITH SECTION 4.3(A) ("CLOSING DATE SPARE PARTS PURCHASE
ORDERS"), FSI FOR ITSELF AND ON BEHALF OF THE FSI PURCHASING AFFILIATES, AGREES
TO PAY METRON WHICH SHALL TAKE RECEIPT ON BEHALF OF ITSELF AND THE METRON
SELLING AFFILIATES, A COMMISSION EQUAL TO [***] OF THE NET INVOICE PRICE (THE
"SPARE PARTS COMMISSION").
NOTWITHSTANDING THE FOREGOING, FSI SHALL HAVE NO
OBLIGATION TO PAY THE SPARE PARTS COMMISSION ON CLOSING DATE SPARE PARTS
PURCHASE ORDERS WITH RESPECT TO WHICH THE SPARE PARTS SUBJECT TO THE ORDER DO
NOT SHIP WITHIN TWELVE (12) MONTHS FROM THE CLOSING DATE, SO LONG AS SUCH DELAY
IN SHIPMENT IS AT THE REQUEST OF THE CUSTOMER OR DUE TO ACTION ON THE PART OF A
CUSTOMER (INCLUDING CANCELLATION OF THE CLOSING DATE SPARE PARTS PURCHASE
ORDER); PROVIDED, HOWEVER, IN THE EVENT THAT A CUSTOMER CANCELS A CLOSING DATE
SPARE PARTS PURCHASE ORDER AFTER THE CLOSING DATE AND SUBSEQUENTLY SUBMITS A
PURCHASE ORDER FOR SPARE PARTS THAT IS SUBSTANTIALLY
*Confidential Treatment Requested
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equivalent (including as to quantity, price, type of Spare Part and delivery
location) to the cancelled Closing Date Spare Parts Purchase Order and the Spare
Parts subject to such new purchase order ship within twelve (12) months from the
Closing Date, FSI shall pay Metron the Spare Parts Commission on such purchase
order up to the amount that would have been paid in respect of the Spare Parts
Commission on the cancelled Closing Date Spare Parts Purchase Order.
FSI shall
pay amounts owed to Metron in respect of the Spare Parts Commission within
thirty (30) days after FSI's shipment of the Spare Parts.
Metron shall be
responsible for transmitting to the appropriate Metron Selling Affiliate any
such commissions allocable to such of Metron's Affiliates.
(D)
NEITHER METRON NOR ANY OF THE METRON SELLING AFFILIATES SHALL HAVE
ANY RIGHT TO RECEIVE ANY COMMISSIONS ON OR OTHERWISE RECEIVE REMUNERATION FOR
PURCHASE ORDERS GENERATED OR RECEIVED AFTER THE CLOSING DATE FOR SPARE PARTS OR
FOR ANY OTHER EQUIPMENT, WARRANTIES OR SERVICES OR AMOUNTS BILLED UNDER SUCH
PURCHASE ORDERS.
4.4
Assumption of Service and Support Contracts.
(A)
ON THE CLOSING DATE, METRON SHALL, AND SHALL CAUSE THE METRON
SELLING AFFILIATE TO, TRANSFER TO FSI OR THE RELEVANT FSI PURCHASING AFFILIATES,
AND FSI OR THE FSI PURCHASING AFFILIATES SHALL ASSUME, ALL REMAINING OBLIGATIONS
INCURRED IN THE ORDINARY COURSE OF BUSINESS AND OUTSTANDING UNDER SERVICE
CONTRACTS, PREVENTATIVE MAINTENANCE AND APPLICATION SUPPORT CONTRACTS FOR
PRODUCTS OR FOR SPARE PARTS ENTERED INTO IN THE ORDINARY COURSE OF BUSINESS BY
METRON OR THE METRON SELLING AFFILIATES WITH CUSTOMERS PURCHASING PRODUCTS OR
SPARE PARTS (EACH SUCH CONTRACT, A "SERVICE/APPLICATIONS SUPPORT CONTRACT")