EXHIBIT 10.48 (CONFIDENTIAL TREATMENT REQUESTED ON
CERTAIN PORTIONS OF THIS DOCUMENT)
TECHNOLOGY TRANSFER AND LICENSE AGREEMENT
THIS AGREEMENT is made and entered into this 20th day of
January, 1997, by and between CORNING INCORPORATED, a New York
corporation having a place of business at Xxx Xxxxxxxxxx Xxxxx,
Xxxxxxx, Xxx Xxxx 00000 (hereinafter "Corning"), and ENERGY
RESEARCH CORPORATION, a New York corporation having a place of
business at 0 Xxxxx Xxxxxxx Xxxx, Xxxxxxx, XX 00000
(hereinafter "ERC").
INTRODUCTION
ERC has developed certain technology and technical know-how
for a sealed NiZn battery including technology for a
fibrillated electrode and a light-weight nickel electrode that
uses graphite. ERC has represented to Corning that such
technology has been used to develop a NiZn cell as described in
Exhibit A, which cell can be used to develop a NiZn battery.
Corning wishes to develop and commercialize a NiZn battery
using the patents and know-how of ERC and for that purpose
wishes to enter into the license in such patents and know-how
set forth below.
ERC, in consideration of the payments and obligations
described below, wishes to enter into the license of its
patents and know-how to Corning as set forth below for the
purpose of
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allowing Corning to develop, make, have made and sell or
otherwise commercialize a NiZn battery.
In order to effectuate this license, ERC wishes to
provide, and Corning wishes to receive the technical assistance
set forth in the Technical Assistance Agreement of even date.
NOW, THEREFORE, in consideration of the foregoing and the
terms and conditions set forth below and intending to be
legally bound, the parties agree as follows:
I. DEFINITIONS AND SCOPE OF THE AGREEMENT
As used in this Agreement, the following terms shall have
the following respective meanings which are intended to define
the scope of the Agreement:
1.1 "Corning Affiliate" shall mean any entity in which
Corning directly or indirectly owns or controls 50% or more of
voting equity.
1.2 "Development Program" shall have the meaning set forth
in Section 3.1.
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1.3 " Effective Date" is the date set forth above, i.e.
January 20, 1997.
1.4 "ERC Facility" shall mean the ERC facility located at
0 Xxxxx Xxxxxxx Xxxx, Xxxxxxx, XX 00000.
1.5 "ERC Know-How" shall mean all of the technical
information, know-how, inventions (whether patented or not),
trade secrets, and other technical, engineering and design
information and data, including without limitation, all
processes and techniques owned by ERC or in which ERC acquires
a licensable interest, during the term of this Agreement,
useful for the commercial manufacture of NiZn batteries within
the Field, such as designs, drawings, blueprints, flow sheets,
reports, manuals, specifications, process descriptions,
operating procedures, materials and parts lists and other
written or printed materials that are owned by ERC and which
may be useful or helpful to Corning in the development and
production of NiZn batteries within the Field.
1.6 "ERC Patents" shall mean the letters patents
identified in Exhibit B hereto, and any applications for
letters patent which have a Convention Date under the
international Convention for the Protection of Industrial
Property prior to the earlier of the expiration or termination
date of this Agreement and which are owned or acquired by ERC
or in which ERC has or acquires a licensable interest
(including without limitation any U.S. or non-
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U.S. patents and patent applications that are counterparts
thereof, and/or any divisions, continuations,
continuations-in-part or reissues thereof).
1.7 "Field of the Agreement" or "Field" means the
manufacture, use and sale, lease or other transfer of NiZn
batteries for all applications, except electric or hybrid
electric vehicles (i.e. vehicles powered solely by electricity
but which may rely part-time on other means of providing
electric power in addition to storage batteries); provided,
however, that for the purpose of this Agreement, electric or
hybrid electric vehicles do not include any two and three wheel
vehicles, motor bikes and trikes, rickshaw, industrial traction
equipment, lawn care equipment, and off-road recreational
vehicles, regardless of how they may be powered. Examples of
recreational vehicles are golf carts, boats and all terrain
vehicles (ATVs).
1.8 "Licensed Technology" shall mean the ERC Patents and
ERC Know-How.
1.9 "Net Sales" means the sum of all sales at the Net
Selling Price of the NiZn batteries in the Field.
1.10 "Net Selling Price" means the gross invoice price of
NiZn batteries manufactured by or for Corning or its
sublicensee hereunder and then sold by Corning or such
sublicensee in the Field in a normal, bona fide, commercial
transaction without any
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deduction other than the following items of expense to the
extent to which they are actually paid and expressly included
in the gross invoice price;
1. Sales returned;
2. Sales discounts;
3. Duties and taxes on sales;
4. Transportation insurance premiums;
5. Packing expenses on sales; and
6. Transport expenses on sales.
For purposes of computing the Net Selling Price for sales or
other transfers of the NiZn batteries to affiliates of Corning
that do not represent a normal, bona fide commercial
transaction, the Net Selling Price shall be determined as
follows: (a)if the battery is so transferred by Corning for use
in the affiliates own operations, the Net Selling Price for
that battery will be the average sales price of such batteries
to unaffiliated third parties for the same type, size and
quantities of batteries during the same year; or (b) if such a
battery is transferred to an affiliate of Corning for resale,
then the Net Selling Price shall be deemed to be the gross
invoice price charged by the affiliate to its third party
customers of the battery with the deductions described above.
1.11 "Party" means Corning or ERC, or when used in the
plural, Corning and ERC.
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1.12 "Technical Assistance" shall mean the assistance and
services that ERC provides to Corning pursuant to the Technical
Assistance Agreement.
1.13 "Technical Assistance Agreement" shall mean that
agreement of even date herewith between the parties pursuant to
which ERC shall provide certain services and assistance to
Corning as specified therein.
II. LICENSE GRANT
2.1 License. ERC hereby grants to Corning, an exclusive
(even against ERC), worldwide license, with the right to
sublicense, in the Licensed Technology for use in the Field;
provided, however, the foregoing license shall convert to a
nonexclusive worldwide license with the right to sublicense
Corning Affiliates: (a) upon Corning's election under Section
3.2; or (b) as provided in Section 4.4.
2.2 New Licensed Technology. During the period that the
license granted Corning under Section 2.1 remains exclusive, or
if Corning's license becomes non-exclusive and ERC grants a
third party a license in the Licensed Technology in the Field,
in addition to its obligations under Section 3.3, ERC shall
promptly from time to time, but at least once a year, disclose
to Corning any ERC Patents and/or ERC Know-How arising after
the Effective Date hereof and not previously disclosed to
Corning and if
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reasonably requested by Corning, provide Corning from time to
time with a list of all patent applications filed by ERC
relating in any way to the Field.
2.3 Other Agreements. During the period that the License
granted under Section 2.1 remains exclusive, ERC will not work
with any other entity in the Field except that ERC may seek
out, and if awarded, may perform contracts or grants for the
U.S. Government in the area of NiZn battery technology.
III. DEVELOPMENT PROGRAM AND TECHNICAL ASSISTANCE
3.1 Phased Objectives. In connection with its use of the
Licensed Technology, Corning intends to conduct a phased
development program to develop a commercially feasible NiZn
battery (the "Development Program"). The Development Program
will consist of four phases and each phase will have objective
goals or criteria to be reached in order to be successfully
concluded. The objective goals and criteria for phase one and
two are set forth on Exhibit C hereto. The goals and criteria
for each successive phase in the Development Program will be
defined and agreed to in a writing signed by the designated
representatives of the Party prior to the completion of the
preceding phase. However, in the event of a disagreement on the
goals and criteria between ERC and Corning, Corning may
establish the same unilaterally. Each phase of the Development
Program will be considered to be successfully concluded
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upon written notice from Corning to ERC that the objective
goals or criteria have been met.
3.2 Conclusion or Termination of the Development Program.
If Corning gives notice to ERC of the successful conclusion of
the Development Program, or at Corning's option, Corning, by
written notice to ERC declares the Development Program
terminated, then Corning may, in any such written notice, elect
to: (a) commence payments of the minimum royalties set forth in
Section 4.3; (b) convert the exclusive license granted under
Section 2.1 to a nonexclusive license provided Corning's
obligation to make the minimum royalty payments described in
Section 4.3 through calendar year 2004 shall continue; or (c)
surrender the license granted to it by ERC hereunder without
further obligation to ERC and terminate this Agreement
notwithstanding any provision herein to the contrary.
3.3 Transfer of Technical Data. ERC shall, during the
period that the license granted Corning under Section 2.1
remains exclusive, or if Corning's license becomes a non-exclusive
license and ERC grants a third party a license in the
Licensed Technology in the Field, supply or cause to be
supplied to Corning, free of any charges other than the
royalties and charges specified in this Agreement, full up-to-date
information as to ERC Know-How and the ERC Patents in a
form (e.g. drawings, standard operating procedures, blueprints,
written memoranda, training of employees or personal
consultation) that will satisfactorily and expeditiously
accomplish the transfer of the ERC Know-How. ERC will supply
all
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information hereunder in a reasonably useable form and in the
English language. In the event that Corning requests, in
writing, that ERC supply such information in a form that
differs from the form in which ERC has previously supplied or
offered to supply it, then Corning will pay the actual costs
and expenses to be incurred by ERC to prepare the information
in the form requested by Corning; provided, however, that
Corning will not be required to pay the costs of obtaining any
such information if it is already available to ERC in the form
requested by Corning.
3.4 Payments During the Development Program. During the
Development Program and prior to its conclusion or termination
pursuant to Section 3.2, Corning shall make the following
payments to ERC:
(a) During Phase Three of the Development Program,
provided Phase Three is not longer than (confidential
treatment requested) months
(confidential treatment requested) per month payable
every three months
(b) Commencing on the earlier to occur of the
commencement of Phase Four of the Development
Program or (confidential treatment requested) months after
the date of this Agreement
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(confidential treatment requested) per month payable every
three months
The first such payment described above shall be due and payable
on April 1, 1997. All of the foregoing payments shall be
credited against the royalties payable under Article IV
(including without limitation the minimums under Section 4.3
below) at a rate not to exceed, however, (confidential treatment
requested) per year.
3.5 Ownership of Development Program Technology. All
inventions, know-how, trade secrets, data or information
arising out of work on the Development Program whether or not
developed by ERC employees or Corning employees shall be the
sole property of Corning. ERC will, upon request by Corning,
execute and require its employees to execute the appropriate
assignments or other documents necessary to evidence such
ownership by Corning.
IV. ROYALTIES
4.1 Royalty Payments. In consideration of the license
granted herein, and subject to the credit provided in Section
3.4 above, Corning shall pay to ERC the following royalties on
the worldwide Net Sales of NiZn batteries it manufactures or
has manufactured and sells in the Field:
(a) During the period in which the license granted
pursuant to Section 2.1 above is exclusive:
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(confidential treatment requested) of the annual (calendar
year) Net Sales up to two hundred fifty
million dollars ($250,000,000.00), and
(confidential treatment requested) of the annual (calendar
year) Net Sales over two hundred fifty million
dollars ($250,000,000.00)
(b) During the period in which the license granted
pursuant to Section 2.1 above is non-exclusive:
(confidential treatment requested) of annual (calendar year)
Net Sales.
The foregoing royalty payments will commence after the
termination of the Development Program and will terminate upon
the expiration of the last to expire of the ERC Patents, and
will be due and payable semi-annually forty-five (45) days
after each January 1 and June 30 of the calendar year in which
products subject to the royalty have been sold. No sublicense
by Corning of the Licensed Technology under this Agreement will
excuse Corning from paying the foregoing royalties indicated in
Sections (a) and (b) above as if Corning itself were making the
Net Sales of the products subject to the sublicense.
4.2 Royalty Report. When rendering payment of the foregoing
royalties, Corning shall provide ERC with a written report
showing the calculation of the royalty, the number of products
to which the
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royalty is applicable and their Net Selling Price. At its
expense, ERC may, by its designated independent public
accountants, audit once annually the royalty amounts reported
by Corning or its sublicensee to determine the procedure by
which the Net Selling Price was calculated; provided however,
that in the event such an audit discloses that the actual
royalty amount due under this Agreement for the applicable
period is more than five percent (5%) greater than the royalty
amount reported by Corning for such period, Corning shall pay
the reasonable costs of such audit incurred by ERC.
4.3 Minimum Royalty Payment. Through 2004 and thereafter
for the period in which the license granted Corning under
Section 2.1 remains exclusive and subject to the credits
provided in Section 3.4 above and the provisions of Section
4.4, Corning shall pay to ERC minimum annual royalty payments
for the years set forth below according to the following
schedule:
Year Minimum Royalty ($ Millions)
2000 (confidential treatment requested)
2001 (confidential treatment requested)
2002 (confidential treatment requested)
2003 (confidential treatment requested)
2004 (confidential treatment requested)
2005 (confidential treatment requested)
2006 (confidential treatment requested)
2007 (confidential treatment requested)
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2008 (confidential treatment requested)
2009 (confidential treatment requested)
Such minimum annual royalty will be payable semi-annually at
the end of each June and December of each calendar year. Unless
this Agreement is terminated and the license granted to Corning
hereunder surrendered or terminated as provided in Section 3.2
above or Section 4.4 below, Corning shall pay the minimum
royalty due under this Section through December 31, 2004.
Thereafter in order to preserve the exclusive nature of the
license hereunder, Corning will have the option of paying the
difference between the minimum royalties set forth above and
the royalties actually incurred by it during the calendar year
covered by such minimum.
4.4 Non-Exclusive Royalty Rate Reduction of Minimums. If
during the first (confidential treatment requested) years of this
Agreement Corning: (a) gives written notice to ERC that it does not
intend to pay the minimum royalty described above for any calendar year
subsequent to calendar year 2004, or (b) elects to convert the
exclusive license to a non-exclusive license as provided in
Section 3.2, then Corning's exclusive rights under Section 2.1
above, shall convert to a non-exclusive license at a royalty
rate of (confidential treatment requested) of Net Sales.
Notwithstanding the foregoing, Corning may, by giving ERC
written notice at least ninety (90) days in advance of the date
on which any of the above-described minimum royalty payments are due,
terminate this Agreement, including the license granted hereunder without
further obligation for the payment of such minimums.
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Corning shall not be required to pay any minimum royalty
payments otherwise due hereunder and payable in any calendar
year subsequent to calendar year 2004 after giving notice of
its election not to make such payment as provided under
subsection (a) above, and Corning shall have no obligation to
make a minimum royalty payments whether or not due before or
after December 31, 2004 after giving notice as provided in
Section 3.2(c) or upon termination of this Agreement and the
license by Corning pursuant to this Section 4.4.
4.5 Most Favored Nations. ERC agrees that it will not
offer to any third party a license in the Field in the Licensed
Technology at royalty rates more favorable than the rates for
the non-exclusive license granted to Corning under this Article
IV in the Field, without the consent of Corning, and reduction
in the remaining royalties payable hereunder to equal those of
such third party.
V. FILING AND MAINTENANCE OF ERC PATENTS
AND RIGHT OF FIRST REFUSAL
5.1 Foreign Filings. ERC will inform Corning of those
countries in which it has filed or intends to file patent
applications concerning ERC Patents it reasonably believes are
useful in the Field. ERC will pay all necessary fees to retain
in force the ERC Patents licensed to Corning under this
Agreement, unless Corning shall advise ERC that it no longer
wishes to retain license rights thereunder, in which case, ERC
may allow such ERC Patents to expire without being liable to
refund any of the royalty
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payments set forth in this Agreement. ERC will pay any fees
required to maintain any ERC Patent in any country and will not
allow such patent or patent application to lapse without giving
Corning at least two (2) months prior notice of such intended
lapse. If Corning in good faith desires to have ERC file,
maintain or prosecute any ERC Patent in any country in which
ERC has not filed, or does not intend to maintain or prosecute
the patents, then Corning will request ERC to file, maintain or
prosecute the patents in such countries and ERC will bear the
reasonable direct and other costs incurred by ERC in performing
the requested tasks so long as the license granted to Corning
hereunder remains exclusive and Corning shall bear such costs
if the license to Corning granted hereunder becomes non-exclusive.
5.2 Third Party Infringement. In the event of an
infringement by a third party of any claim of any ERC Patent in
the Field, Corning shall have the right to undertake legal
action at its own expense against any such third party in its
own name or if so required by law in the name of ERC and ERC
shall fully cooperate in such action and shall, for example,
allow its employees to testify when called on to do so and
shall make available to Corning all relevant documents and
records. Any damages, awards and other remuneration recovered
from such action shall be retained by and be the sole property
of Corning; provided however: (a) that during the period in
which the license granted pursuant to Section 2.1 of this
Agreement is exclusive, if Corning brings such an action of
infringement and
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ERC elects to participate at its own cost for the purpose of
recovering any royalties under this Agreement whichch it has
not received from Corning as a result of such infringement, ERC
shall be entitled to that portion of the recovery which is
granted for such omitted royalties; and (b) in the event that
the license granted pursuant to Section 2.1 hereof becomes non-exclusive
and ERC elects to pursue any such action and Corning
agrees to share the costs of such action, then ERC and Corning
shall agree upon an equitable distribution of the recovery of
any amounts between them as a result of such infringement
action, taking due consideration of each party's share of the
costs in the litigation and the respective interests of the Parties in the
Licensed Technology. In the event either Party learns that
there is or may be an infringement of the ERC Patents, either
party shall notify the other thereof as soon as practicable.
5.3 Expansion of the Field. Upon written request of
Corning, ERC and Corning will negotiate further licenses of the
Licensed Technology outside the Field at terms and conditions,
including reasonable royalties, to be agreed upon by the
parties; provided nothing herein will require ERC to xxxxx
Xxxxxxx a license in the Licensed Technology for the purposes
of making or supplying NiZn batteries for electric or hybrid
vehicles (i.e. vehicles powered solely by electric but which
may rely part time on other means of providing electric power
in addition to batteries).
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VI. TERM
The term of this Agreement shall be the period beginning
on the Effective Date and continuing until the expiration of
the last to expire of the ERC Patents listed on Exhibit B or
any subsequent valid ERC Patent which is practiced by Corning
under the licenses granted it pursuant to Section 2.1, provided
that Corning's right to the non-exclusive worldwide right to
use the ERC Know-How whether or not covered by ERC Patents
shall survive any such termination, unless this Agreement is
sooner terminated by agreement of the Parties or by Corning as
provided in Section 3.2 or Section 4.4 or by either party as
provided in Section 7.1.
VII. DEFAULT AND TERMINATION
7.1 Default. In the event that a Party (the "defaulting
Party") shall (a) fail to make any payment hereunder when and
as due, or (b) otherwise materially default in its obligations
hereunder and fail to remedy such default within thirty (30)
days after such default shall have been called to its attention
by written notice from the other Party, (c) file a petition in
bankruptcy or make a general assignment for the benefit of
creditors or otherwise acknowledge insolvency, or be adjudged
bankrupt, (d) go or be placed into a process of complete
liquidation other than for an amalgamation or reconstruction,
or (e) suffer the appointment of a receiver for its business
who shall not be discharged within sixty (60) days after his
appointment,
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then, and in any such event, the other Party, at its option,
may terminate, upon thirty (30) days written notice, this
Agreement and all its obligations and any licenses to the
Parties hereunder.
7.2 Non-Waiver. No failure or delay on the part of a Party
to exercise any of its rights under this Article for any one or
more defaults shall be construed to prejudice its rights in
connection with such or any subsequent default.
7.3 License Upon Termination. In the event that Corning
terminates its rights and obligations under this License
Agreement pursuant to Section 3.2 or 4.4 above, it will provide
ERC with copies of any technical information it has received
from ERC or derived from ERC and grant ERC a worldwide right to
use in the Field non-exclusively the patents or know-how owned
by Corning and developed as a result of its use of the Licensed
Technology pursuant to the terms of this license and prior to
the date of such termination, royalty-free for the first five
(5) years and thereafter bearing a royalty of (confidential
treatment requested) payable to Corning of the Net Selling
Price of any product manufactured or
sold thereunder using such patents or know-how for a period of
(confidential treatment requested) years from the date of such
termination. If all of the applicable patents expire,
before the end of such (confidential treatment requested) year period,
the royalties will be attributable to the know-how.
7.4 Non-Competition. If Corning terminates the Agreement,
Corning shall not unilaterally, during a (confidential treatment
requested) year period from
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such termination, sell any NiZn batteries for use in the Field
or license any third parties for such purposes; provided
however, Corning shall not be precluded from developing or
selling any products whether or not in the Field using NiZn
battery technology conceived or developed by a third party. In
the event that Corning develops a NiZn battery for use in the
Field with a third party using such third party technology
prior to the end of the foregoing period, Corning grants to ERC
the right to inspect Corning's NiZn battery manufacturing
facility to the extent necessary to verify that Corning is not
utilizing technology which is proprietary to ERC (as of the
date of termination of this Agreement). Said inspection shall
be pursuant to a separate nondisclosure agreement to be entered
into by ERC.
7.5 Continuing Obligations. Notwithstanding the earlier
termination of this Agreement, the parties obligations under
Sections 3.5, 5.3 and for payment of royalties on the Net Sales
of NiZn batteries, in the Field and subject to the license,
sold before such termination under Article VIII, shall survive
such termination.
VIII. CONFIDENTIAL INFORMATION
Subject to the exercise by Corning of its rights in the
Licensed Technology under Article II, all written information
marked "proprietary" or "confidential" (or if oral,
subsequently reduced to a writing so marked and delivered to
the receiving party
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within thirty (30) days of its oral disclosure) which any Party
discloses to the other as a result of the provisions of this
Agreement, whether contained in blueprints, drawings, written
reports, letters or memoranda, process descriptions, operating
procedures and other written data, shall be treated as
confidential unless (a) such information shall have been in the
possession of the receiving Party prior to its receipt from the
disclosing Party, (b) such information is or becomes part of
the public knowledge or literature through no fault of the
receiving Party, or (c) such information shall otherwise become
available to the receiving Party from a source other than the
disclosing Party, said source not being violative of any
obligation of secrecy with respect to such information.
Information which is so considered to be confidential shall be
held by the receiving Party for its sole benefit and used only
in accordance with this Agreement. The receiving Party shall
use all reasonable efforts to prevent the use of all or any
part of such confidential information belonging to the
disclosing Party in any other connection or the transmission
thereof to third Parties unless and until it has first obtained
the written consent of the disclosing Party specifically
authorizing such use or transmission. The Parties understand
that information may be provided which is subject to a
confidentiality agreement with a third Party. The Parties agree
that such information shall be held in confidence in accordance
with the terms of the third Party confidentiality agreement. No
Party shall be obligated to divulge third Party confidential
information to the other Party.
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IX. NOTICES
All notices required to be given hereunder shall be in
writing and shall be given by first class mail, postage
prepaid, addressed to the Parties as follows:
To Corning: Corning Incorporated
MP-HQ-E1-6
Xxxxxxx, XX 00000
Attn: Xxxx Xxxx, Corporate Manager
New Business Development
cc: Senior Vice President
& General Patent Counsel
Corning Incorporated
SP-FR-02-12
Xxxxxxx, XX 00000
To ERC: Energy Research Corporation
0 Xxxxx Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: Xx. Xxxxxxx X. Xxxxx, President
cc: Xxxx X. Xxxxxx, Contract Manager
& Assistant Secretary
or such other address as a Party shall by notice request.
X. ENTIRE AGREEMENT
The terms and provisions herein contained constitute the
entire Agreement between the Parties and shall supersede all
previous communications, representations, agreements or
understandings, either oral or written, between the Parties
hereto with respect to the subject matter hereof; and no
agreement or
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understanding varying or extending the same will be binding
upon either Party hereto unless in writing, and signed by duly
authorized officers or representatives of the respective
Parties.
XI. MISCELLANEOUS
11.1 Applicable Law. This Agreement shall be construed in
accordance with the laws of the State of New York
notwithstanding any choice of law principles to the contrary.
11.2 Legality. The Parties each declare that, to the best
of their respective knowledge, as of the date first written
above, there are no laws or regulations in effect that
materially limit or restrict their ability to fully perform
their obligations under this Agreement.
11.3 Amendment. This Agreement may not be modified or
amended except by a writing duly signed by the authorized
representatives of both Parties.
11.4 Effect of Unenforceable Provisions. In the event any
one or more of the provisions contained in this Agreement shall
be invalid, illegal or unenforceable in any respect, said
provision(s) shall be deemed severed and deleted herefrom and
the validity, legality and/or enforceability of the remaining
provisions contained herein shall not in any way be affected or
impaired thereby.
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11.5 Government Information. Nothing in this Agreement
shall authorize the disclosure of, or access to, classified or
restricted information, material or know-how of the Government
of the United States of America to persons not authorized or
licensed to disclose or receive such classified or restricted
information.
11.6 Relationship. The relationship of the Parties herein
shall be that of independent contractors and nothing herein
contained shall be deemed to create any relationship of agency.
11.7 Assignment. Subject to Corning's rights pursuant to
Article II, neither Party may assign this Agreement without the
written consent of the other Party, except to a wholly-owned or
majority-owned subsidiary of the assigning Party.
IN WITNESS WHEREOF, the Parties have caused this Agreement
to be executed in a manner binding upon them by their duly
authorized officers as of the date first above written.
CORNING INCORPORATED
By: /s/ Xxxxxx X. Xxxxxx
Title: Senior Vice President
ENERGY RESEARCH CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
Title: President
