* THIS MATERIAL HAS BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT AND SUCH MATERIAL HAS BEEN FILED SEPARATELY.
LICENSE AGREEMENT
_________________
This License Agreement ("Agreement"), dated as of September 5, 1997, (the
"Effective Date" is made among
1. Lanxide Technology Company L.P. of 0000 Xxxxxxx Xxxx, X.X. Xxx 0000,
Xxxxxx, Xxxxxxxx 00000-0000, U.S.A., a Delaware limited partnership
("LTC"),
2. Nihon Cement Company, Ltd. of Ohtemachi Bldg., Xx. 0-0, 0-Xxxxx,
Xxxxxxxxx, Xxxxxxx-xx, Xxxxx 000, XXXXX, a Japanese corporation
("Licensee"), and
3. Lanxide Corporation of 0000 Xxxxxxx Xxxx, X.X. Xxx 0000, Xxxxxx,
Xxxxxxxx 00000-0000, U.S.A., a Delaware corporation ("Lanxide").
WHEREAS, LTC is wholly owned and controlled by Lanxide; and
WHEREAS LTC holds rights in certain valuable technology and Lanxide holds
rights in certain valuable trademarks; and
WHEREAS, Licensee wishes to license certain of such rights for the purposes
defined herein; and
NOW THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto hereby agree as follows:
I. DEFINITIONS
Terms used with initial capital letters in this Agreement shall have the
meaning set forth below
1.1 "Affiliates(s)" of a corporation or other entity means a Person that,
directly or indirectly through one or more intermediaries controls, is
controlled by, or is under common control with, such person.
1.2 "AKN" shall mean AKN Corporation, a Japanese Company licensed by
Lanxide K.K. in the field of brake components.
1.3 "Ceramic-Reinforced Aluminum" ("CRA") shall mean materials comprised of
a qdiscontinuous ceramic reinforcing phase and a continuous aluminum
metal matrix phase.
1.4 "CRA Materials" shall mean those items listed as inclusions in Schedule
A to this Agreement.
1.5 "DLC" shall mean Du Pont Lanxide Composites, Inc., a Delaware
corporation licensed by Lanxide and its Affiliates in the field of
aerospace, turbine engine heat exchanger and rocket nozzle components.
1.6 "Government Entity" shall mean any sovereign, state or political
subdivision thereof, whether foreign or domestic
1.7 "Government Regulations" shall mean and include any and all terms,
conditions and provisions of (a) any law, regulation, order, statute,
decree, rule, writ, injunction, determination or award of any court or
Governmental Entity and (b) any contract for research, development
and/or manufacturing between LTC and any department or agency of the
United States government but only to the extent such contracts reflect
provisions required by clause (a) above to be included therein.
1.8 "Japan" shall mean the country of Japan to the extent of its geographic
boundaries as of the Effective Date.
1.9 "Lanxide K.K." shall mean Lanxide Kabushiki Kaisha, a Japanese Stock
Company licensed by Lanxide and its Affiliates with certain product
rights in Japan.
1.10 "LAP" shall mean Lanxide Armor Products, Inc. a Delaware Corporation
licensed by Lanxide and its Affiliates in the field of armor products.
1.11 "LEC" shall mean Lanxide Electronic Components, Inc. a Delaware
Corporation licensed by Lanxide and its Affiliates in the field of
electronic products.
1.12 "Licensed Technology" shall mean Technology which is now or hereafter
owned by LTC, and all other Technology licensed to LTC without
restriction upon the grant of sublicenses, that is relevant to CRA
Materials which are comprised of CRA, but excluding Technology the
transfer or license of which, or an interest in which, would be
expressly prohibited, either generally or specifically, by Government
Regulations.
1.13 "Permitted Licensees" shall mean licensees of Lanxide, LTC or Lanxide
K.K. other than DLC, LAP, LEC or their successors or assigns.
1.14 "Person" shall mean any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated
organization or government or any agency or political subdivision
thereof.
1.15 "Raw Materials" shall mean ceramic powders, ceramic paper, fibers
and/or polymers produced using technology owned by or licensed to
Lanxide or its Affiliates.
1.16 "Technology" shall mean technical information, know-how data,
techniques, patents, patent applications and trade secrets.
1.17 "Territory B" shall mean the geographic area as defined in Schedule B.
II. GRANT OF TECHNOLOGY LICENSES
2.1 Japan
2.1.1 License to Licensed Technology. Subject to Government Regulations and
the provisions of this Agreement, LTC hereby grants to Licensee a
perpetual license to use the Licensed Technology solely for the
manufacture of CRA Materials in Japan, and the sale of CRA Materials:
(i) in Japan but only to Permitted Licensees who are licensed by
Lanxide K.K. to use CRA Materials to manufacture cast products
in Japan, and only for their use in manufacturing such licensed
cast products, and
(ii) in Territory B but only to Permitted Licensees who are licensed
by Lanxide and/or LTC to use CRA Materials to manufacture cast
products in Territory B, and only for their use in
manufacturing such licensed cast products.
2.1.2 Non-Exclusive Using/Selling Rights. The license of Licensed Technology
granted under paragraph 2.1.1 shall be exclusive in Japan except that:
(i) the Licensees right to sell CRA Materials to AKN shall be
non-exclusive,
(ii) DLC, LAP, LEC or their successors or assigns shall retain the
right to make and use CRA Materials in Japan, and
(iii) it shall be subject to the rights, now or in the future, of
other authorized users of the Licensed Technology to use CRA
Materials within Japan; provided that LTC agrees not to grant
to any party any future license rights, beyond the scope of the
license rights granted to DLC, LAP, LEC and AKN, to make and
sell products made using CRA Materials in Japan.
2.1.3 Rights Outside Japan. The license granted under paragraph 2.1.1 shall
not include:
(i) any rights to use the Licensed Technology for the manufacture
of CRA Materials outside the Japan, or
(ii) any right to export CRA Materials from Japan except the right
to sell CRA Materials non-exclusively in Territory B to
Permitted Licensees who are licensed by Lanxide and/or LTC to
use CRA Materials to manufacture cast products in Territory B
but only for their use in manufacturing such licensed cast
products.
2.2 Territory B.
2.2.1 License to Licensed Technology. Subject to Government Regulations and
the provisions of this Agreement, LTC hereby grants to Licensee a
perpetual license to use the Licensed Technology in Territory B solely
for the manufacture of CRA Materials in Territory B and the sale of CRA
Materials:
(i) in Japan but only to Permitted Licensees who are licensed by
Lanxide K.K. to use CRA Materials to manufacture cast products
in Japan, and only for their use in manufacturing such licensed
cast products
(ii) in Territory B but only to Permitted Licensees who are licensed
by Lanxide and/or LTC to use CRA Materials to manufacture cast
products in Territory B, and only for their use in
manufacturing such licensed cast products.
2.2.2 Non-Exclusive Using/Selling Rights. The license of Licensed Technology
granted under paragraph 2.1 shall be non-exclusive and subject to:
(i) the rights of DLC, LAP, LEC or their successors or assigns to
make and use CRA Materials within Territory B, and
(ii) the rights, now or in the future, of other authorized users of
the Licensed Technology to use CRA Materials within Territory
B.
2.2.3 Rights Outside Territory B. The license granted under paragraph 2.2.1
shall not include:
(i) any rights to use the Licensed Technology for the manufacture
of CRA Materials outside Territory B or
(ii) any right to export CRA Materials from Territory B except the
right to sell CRA Materials non-exclusively in Japan to
Permitted Licensees who are licensed by Lanxide K.K. to use CRA
Materials to manufacture cast products in Japan but only for
their use in manufacturing such licensed cast products.
2.3 Limitations on License. With respect to the Licensed Technology,
Licensee and its authorized sublicensees may conduct design and
engineering on Product applications and manufacturing. New materials
development and process research relating to Licensed Technology may
performed by Licensee and its authorized sublicensees to the extent
that is related to the development or manufacture of CRA Materials.
2.4 Sublicensing Rights. The Licenses granted under paragraph 2.1 and 2.2
shall not include the right to grant sublicenses without the prior
written consent of LTC, except that the Licensee may sublicense its
wholly owned subsidiary Celanx Kabushiki Kaisha ("Celanx'') to use the
Licensed Technology on terms no less restrictive to Celanx than those
granted to the Licensee in this Agreement. In the event of such
sublicense Celanx shall affirm its obligations to Lanxide and LTC as if
it were the Licensee.
2.5 Reservation of Rights. No rights are granted under the Licensed
Technology except as expressly set forth in this Section 2 and all
rights not expressly granted are reserved.
2.6 Provision of Technology. Subject to applicable Government Regulations,
including obtaining any necessary licenses prior to disclosure, LTC or
Lanxide shall, make available in the English language and U.S. units of
measurement to Licensee at Licensee's request: (i) within two weeks of
the Effective Date complete copies of all standard Operating Procedures
in use at Lanxide used for the Manufacture of CRA Materials;
(ii) prompt training at Lanxide facilities in Newark, Delaware of any
engineers provided by Nihon Cement or Celanx KK with respect to CRA
Materials; (iii) additional technical support at a cost to Licensee
equal to LTC's or Lanxide's fully burdened cost according to Generally
Accepted Accounting Principles (GAAP) and on a basis of availability no
less favorable to the Licensee than that afforded to any other licensee
of the Licensed Technology.
2.7 Protection of Technology. Licensee shall not use and shall not permit
its authorized sublicensees to use the Licensed Technology for any
purpose other than to manufacture, use and sell CRA Materials, as
provided in this Agreement. Licensee shall take no action in respect
of the Licensed Technology which is inconsistent with the terms of the
licenses granted under this Agreement.
2.8 Acknowledgment of Rights; Patent Marking. Licensee acknowledges that
Licensee's right to use the Licensed Technology arises only out of the
licenses granted under this Agreement. All CRA Materials manufactured
under issued patents of LTC shall bear a patent notice as may be
necessary or desirable under the Laws of the applicable Government
Entities.
III. FEE AND ROYALTY
3.1 Fee Payment and Amount. Licensee shall pay to LTC a license fee in
accordance with the following schedule:
*
Payment to be made on or before September 5, 1997 to Lanxide K.K. as
the agent of Lanxide (the "Fee").
*
3.2 Third Party Royalties. In any case where use of Licensed Technology
requires or required LTC to pay a royalty to a third party (whether
lump-sum or payable by reference to sales) under the terms of any
future third party license that LTC may enter into, then in the event
that Licensee determines to use such Technology, Licensee will be
responsible for payment to LTC of a further amount equal to the royalty
payable to the third party attributable to sales by Licensee and its
authorized sublicensees. In case LTC needs to obtain a third party
technology which LTC is aware may be useful to licensee and therefore
may require Licensee to be responsible for additional royalty, Lanxide
shall let Licensee know the need, with prior written form, and consult
with Licensee as to whether such additional technology is truly
necessary. If Licensee decides such technology is unnecessary,
Licensee shall have the right not to use such third party technology
and therefore not be required to pay any third party royalty associated
therewith. Even though Licensee decides such technology is
unnecessary, subject to the terms of this License Agreement, Licensee
can use licensed technology not requiring such third party royalty.
3.3 Tax Withholding. Licensee may withhold taxes from royalties payable
hereunder only to the extent that such withholding is required under
applicable law and to the extent that Licensee provides copies of all
documents required by LTC hereunder to claim credit for such foreign
tax payment.
3.4 Payment and Accounting. Third party royalties due under this Agreement
shall be paid in U.S. dollars to the bank account specified by LTC
within 45 days after each of December 31, March 31, June 30 and
September 30, in relation to the period of three (3) calendar months
(or less in the case of the first such period) ending on such date.
Overdue payments shall bear interest at the annual rate of two percent
(2%) above the prime rate of Citibank, in New York.
3.5 Books and Records. Licensee shall keep proper books and records
showing the description and price of products sold, and such records
shall be open at all reasonable times to inspection by Lanxide or its
representatives, who shall be entitled to take copies of such books and
records.
3.6 Currency Conversion. For the purpose of converting into U.S. dollars
the currency in which royalties may arise, the rate of exchange to be
applied shall be the rate of exchange for the purchase of U.S. dollars
with the currency quoted by Citibank, in New York as at the close of
business on the last business day of the quarterly period to which a
payment shall relate.
IV. TERM AND TERMINATION
4.1 Effective Date. This Agreement shall come into effect upon the
Effective Date set forth in the first page hereof. This Agreement
shall thereafter be perpetual and non-cancellable, subject to earlier
termination as provided herein.
4.2 Events of Termination. This Agreement may be terminated upon the
happening of any of the following events:
(i) Upon written notice from LTC or Lanxide, in the event that
Licensee is in material breach of any of its obligations under
this Agreement each dated one year earlier than the date hereof
to which both Licensee and Lanxide are parties, and fails to
remedy that breach within 30 days after receipt of written
notice from LTC or Lanxide, requiring it to remedy that breach;
(ii) Upon written notice from LTC or Lanxide, in the event that
Licensee ceases to carry on business, becomes or is declared
insolvent, files or has filed against it a petition in
bankruptcy, has a receiver appointed over its assets, or takes
or has taken against it any similar act as a result of debt;
(iii) Upon written notice by Licensee to LTC.
(iv) As provided elsewhere in this Agreement
4.3 Effects of Termination. On termination of this Agreement for any
reason, the following provisions shall have effect;
(i) All licenses and rights granted to Licensee by Licensor shall
forthwith cease and Licensee shall cooperate in cancelling any
registration of such licenses.
(ii) Licensee shall, except as otherwise agreed with LTC or Lanxide,
as applicable, forthwith cease all use of the Licensed
Technology and the Trademarks.
(iii) Termination of this Agreement shall not affect the continued
enforceability of Section 8 and the continued existence of the
license from Licensee to Licensor under paragraph 6.1 hereunder
of improvements and inventions made up to the date of
termination.
(iv) Licensee shall promptly deliver all Proprietary Information in
all forms to LTC or to its authorized representatives
4.4 LTC License. In the event that Lanxide ceases to carry on business,
becomes or is declared insolvent, files or has filed against it a
petition in bankruptcy, has a receiver appointed over its assets, or
takes or has taken against it any similar act as a result of debt, as a
result of action or inaction by some Person other than Licensee or LTC
or a Person controlled by Licensee or LTC; LTC shall take the measures
under the applicable laws to retain its rights under any agreement
between LTC and Lanxide relating to the Licensed Technology, as such
rights existed immediately before the happening of such an event.
V. GOVERNMENT REGULATIONS, ETC.
5.1 Compliance with Government Regulations. The grant of licenses and the
transfer of Licensed Technology under this Agreement shall be
conditional on all necessary governmental consents and licenses being
obtained and maintained. LTC and Licensee shall use reasonable efforts
to obtain all such consents and licenses. Licensee shall comply with
all Government Regulations governing export of goods and information
from Japan and Territory B and between the various countries of Japan
and Territory B, including without limitation the Export Administration
Regulations of the United States (15 C.F.R. 730 et seq.) as such may be
amended from time to time, and the terms of any licenses or consents
obtained.
VI. PATENTS AND IMPROVEMENTS
6.1 Rights in Inventions. Licensee shall promptly disclose to LTC any
inventions or improvements which relate to composition and processing
of Ceramic-Reinforced Aluminum as material for CRA Materials that are
made by Licensee's employees or by the employees of any authorized
sublicensees without the participation of any of the employees of LTC
or its Affiliates and Licensee shall obtain the right to grant, and
grant, to LTC a full world-wide, royalty-free, perpetual, irrevocable,
non-exclusive license to make, use and sell such improvements or
inventions in any manner not prevented by the terms of the license to
Licensee under this agreement, with full right by LTC to grant
sublicenses of such improvements or inventions which themselves include
the right to sublicense.
The provisions of this Section 6.1 shall not affect the ownership of
inventions or improvements made by employees of LTC or its Affiliates
(with or without the participation of the employees of the Licensee or
its authorized sublicensees) which inventions and improvements shall be
the property of LTC or its Affiliates, but subject to the license
granted under this Agreement.
6.2 Prosecution and Registration. Licensee shall not seek any patent or
other intellectual property registration in relation to the Licensed
Technology in its own name, other than improvements and inventions
relating to the Licensed Technology made by Licensee's employees with
or without the participation of employees of authorized sublicensees or
contract manufacturers. Licensee will cooperate with LTC as reasonably
requested by LTC in relation to obtaining and prosecuting patents in
the name of LTC. In addition LTC and Licensee shall cooperate in
seeking the registration of this Agreement or of an executed registered
user agreement as may be necessary or desirable under the laws of any
country to record the patent license granted under this Agreement at
the reasonable expense of Licensee.
6.3 Actions and Claims Against Third Parties. If, during the term of this
Agreement, Licensee learns of any infringement, unfair competition or
misappropriation ("Infringement") by a third party of any Licensed
Technology licensed exclusively to Licensee, Licensee shall promptly
and fully notify LTC in writing.
6.4 Infringement Claims by Third Parties. If, during the term of this
Agreement, any claim or action is threatened or commenced by a third
party alleging Infringement of third party rights by practice of
Licensed Technology by Licensee, Licensee shall promptly and fully
notify LTC in writing.
6.5 Procedure. LTC shall have the right, but not the obligation, to take
all reasonable steps to prosecute or defend any such claim or action
relating to the matter set forth in paragraphs 6.3 or 6.4, and may
institute, defend, or settle claims, actions or proceedings at its
expense. Licensee, at LTC's request shall render all reasonable
assistance and cooperation at LTC's expense. If LTC refuses or fails
to take or defend such actions within six (6) months after receipt of
the notice described above (or such shorter period as shall be
reasonable in the circumstances), then Licensee shall have the right
(but not the obligation), after first notifying LTC in writing, to
institute, defend or settle such actions or claims or proceedings,
which shall be at Licensee's expense. In such case LTC, at Licensee's
request, shall render all reasonable assistance and cooperation at
Licensee's expense, and LTC shall have the right to participate in such
proceedings through LTC's own counsel. In no event shall LTC bear any
expense of any claims, actions, or proceedings not instituted or
defended by LTC unless their written consent is obtained prior to the
institution or defense of such claims, actions, or proceedings. In
addition, LTC will have the right to instruct Licensee to modify or
terminate any practices which have given rise to a claim of
Infringement of third party rights.
VII. CONFIDENTIALITY, RESTRICTED DISCLOSURE AND LIMITED USE COMMITMENTS.
7.1 Confidentiality Undertaking. The parties hereto shall (i) treat as
confidential all Proprietary Information (as hereinafter defined) which
is obtained by a receiving party directly or indirectly from a
disclosing party in connection with this Agreement, and (ii) not
disclose the same to any third party nor use the same, except as
provided herein. The provisions of this Section shall apply, without
limitation, to all information learned by the parties in the course of
implementing this Agreement concerning the business, assets, customers,
processes or methods of Lanxide, LTC, or Licensee, or their Affiliates.
The provisions of Section 7 shall remain in effect during the term of
this Agreement and for a period of five (5) years after termination or
expiration of the Agreement.
7.2 Proprietary Information. As used herein, "Proprietary Information"
means any information of Lanxide, LTC, Licensee, or their Affiliates
that might reasonably be considered proprietary, sensitive or private,
including but not limited to the following:
(i) Technical information, know-how, data, techniques, discoveries,
inventions, ideas, unpublished patent applications, proprietary
information, formulae, analyses, laboratory reports, other
reports, financial information, studies, findings, or other
information relating to Lanxide, LTC, Licensee, or their
Affiliates, or the Licensed Technology or methods or techniques
used by Lanxide, LTC, Licensee, or their Affiliates, whether or
not contained in samples, documents, sketches, photographs,
drawings, lists, and the like;
(ii) Data and other information employed in connection with the
marketing of the products of Lanxide, LTC, Licensee, or their
Affiliates including cost information, business policies and
procedures, revenues and markets, distributors and customers,
and similar items of information whether or not contained in
documents or other tangible materials; and
(iii) Any other information obtained by the parties to this Agreement
during the term hereof, that is not generally known to, and not
readily ascertainable by proper means by, third parties.
7.3 Precautions. The parties hereto shall take all appropriate steps to
prevent unauthorized disclosure of any Proprietary Information by their
employees, which steps include the execution by all such persons of
written agreements containing obligations of confidentiality,
restricted disclosure and limited use relative thereto consistent with
this Section 8 prior to disclosure of Proprietary Information to them.
The parties shall not permit access to Proprietary Information by their
employees, except on a need-to-know basis. The parties shall further
take all appropriate steps to protect the Proprietary Information
against espionage, misuse, loss or theft.
7.4 Exclusions. The provisions of this Section 7 shall not apply to any
Proprietary Information after (i) it has become generally available to
the public through no fault of the receiving party or its employees,
(ii) the receiving party can prove by clear and convincing documentary
evidence that it was in its possession before disclosure hereunder and
did not come directly or indirectly from the disclosing party or
(iii) it becomes known to the receiving party through lawful disclosure
from a third party that is not subject to a confidentiality agreement
with any disclosing party or Affiliate.
7.5 Permitted Disclosure. Proprietary Information may not be disclosed by
the receiving party without the prior written consent of the disclosing
party, except that:
(i) Lanxide or LTC, as appropriate, may disclose such Proprietary
Information to their employees on a need-to-know basis for the
purposes of this Agreement in accordance with paragraph 8.3.
(ii) Lanxide may disclose Licensee's Proprietary Information to its
Affiliates or its other licensees or sublicensees of the
Licensed Technology, provided that prior to disclosure of the
Proprietary Information, such Persons execute written
agreements containing obligations of confidentiality consistent
with this Section 7.
(iii) In the event that a third party wishes to evaluate Licensee's
proprietary technology in connection with a business
transaction with Lanxide or its Affiliates, Lanxide may
disclose as much of Licensee's Proprietary Information to that
third party as is necessary to conduct such evaluation,
provided that prior to disclosure such third party executes a
written agreement prohibiting use of the Proprietary
Information for any reason other than evaluation of this
technology and containing obligations of confidentiality
consistent with this section 7.
7.6 Government Regulations. The provisions of this Section 7 shall not be
deemed to obligate either party to do or refrain from doing any act,
the doing or not doing of which would cause or reasonably be expected
to cause either party to fail to fulfill or comply with any obligation
or requirement imposed by any Governmental Regulation, provided that,
any disclosures of Proprietary Information made to fulfill or comply
with any such Regulation shall be made (i) only after notice to the
other party, and (ii) under conditions invoking all confidentiality
protections as are available by law or regulation.
VIII. MISCELLANEOUS
8.1 Warranty of LTC; Indemnity. LTC hereby represents and warrants that to
the best of its knowledge, use of the Licensed Technology for the
manufacture and sale of CRA Materials in Japan and Territory B will
not, in any material respect, infringe any patent, copyright, design
right, utility model right or any other proprietary right owned or
controlled by any third party in Japan or Territory B. LTC shall
indemnify the Licensee against any and all loss, charges, damages,
costs and expenses, including without limitation reasonable attorneys'
fees, incurred by Licensee as a result of LTC's breach of the warranty
contained in this paragraph 8.1, provided Licensee abides by the
procedures set forth in paragraph 6.5 hereto.
8.2 No Other Warranties. LTC and Lanxide make no other warranty or
representation beyond those in section 8.1 hereto with respect to the
Trademarks the Licensed Technology or other assistance furnished under
this Agreement, or with respect to the Trademarks, nor are LTC or
Lanxide in any way responsible for the accuracy, utility or
completeness of any Licensed Technology or other assistance furnished
under this Agreement. LTC AND LANXIDE HEREBY EXPRESSLY DISCLAIM ANY
AND ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, ARISING BY
LAW OR CUSTOM, WITH RESPECT TO THE TRADEMARKS OR THE LICENSED
TECHNOLOGY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF
NON-INFRINGEMENT (BEYOND THOSE SPECIFIED IN SECTION 8.1 HERETO),
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. LTC AND LANXIDE
DO NOT IN ANY WAY PROMISE THAT THE LICENSED TECHNOLOGY WILL PRODUCE ANY
PARTICULAR RESULTS, PRODUCTS OR PROFITABILITY.
8.3 Force Majeure. Neither party shall be liable for failure to perform
its obligations hereunder for so long as that failure may be the result
of any event beyond its reasonable control (a "force majeure" event),
provided that such party uses all reasonable efforts to comply with the
terms of this Agreement to the extent that it is able to do so.
8.4 Waivers. The failure at any time of either party to require
performance by the other party of any obligation required by this
Agreement shall in no way affect the first party's right to require
such performance at any time thereafter, nor shall the waiver by either
party of a breach of any provision of this Agreement by the other party
constitute a waiver of any other breach of the same or any other
provision or constitute a waiver of the obligation itself.
8.5 Amendment. This Agreement may be amended only by an instrument in
writing duly executed by the parties hereto.
8.6 Assignability. This Agreement shall be binding upon and inure to the
benefit of the permitted successors and assigns of each party hereto.
Neither this Agreement nor any right or obligation hereunder may be
assigned or delegated in whole or in part by any party without the
prior written consent of the other parties, except that LTC shall have
the right to transfer its rights and obligations to an Affiliate.
8.7 Notices. In any case where any notice or other comnunication is
required or permitted to be given hereunder (including, without
limitation, any change in the information set forth in this paragraph
8.6) such notice or communication (i) shall be in writing and in the
English language, (ii) shall be sent to the parties set out below, and
(iii) shall be (A) personally delivered, (B) sent by postage prepaid
registered airmail, (C) transmitted by telecopy receipt of which is
confirmed, (D) sent by courier service requiring signature on receipt,
as follows:
If to LTC, to:
Lanxide Technology Company, L.P.
c/o Lanxide Corporation, General Partner
0000 Xxxxxxx Xxxx
P.O. Box 6077
Newark, DE 19714-6077
U.S.A
Attention: President
If to Lanxide, to:
Lanxide Corporation
0000 Xxxxxxx Xxxx
P.O. Box 6077
Newark, Delaware 19714-6077
U.S.A.
Attention: President
If to Licensee, to:
Nihon Cement Company, Ltd.
Ohtemachi Bldg.,
Xx. 0-0, 0-Xxxxx, Xxxxxxxxx,
Xxxxxxx-xx, Xxxxx 000,
XXXXX
Attention: President
All such notices or other communications shall be deemed to have been
given or received (i) upon receipt if personally delivered, or if by
courier, (ii) on the tenth business day following posting if by postage
prepaid registered airmail, or (iii) when sent with confirmed answer
back if sent by telecopy.
8.8 Choice of Law. This Agreement shall be construed and enforced in
accordance with and governed by the laws of the State of Delaware,
United States of America.
8.9 Forum Jurisdiction, Venue and Service. The Licensee hereby irrevocably
and unconditionally:
(i) agrees that any action, suit or proceeding by any person
arising from or relating to this Agreement or any statement,
course of conduct, act, omission, or event occurring in
connection herewith (collectively, "Related Litigation'') may
be brought in any state or federal court of competent
jurisdiction sitting in the State of Delaware, submits to the
jurisdiction of such courts, and to the fullest extent
permitted by law agrees that it will not bring any Related
Litigation in any other forum;
(ii) waives any objection which it may have at any time to the
laying of venue of any Related Litigation brought in any such
court, waives any claim that any such Related Litigation has
been brought in an inconvenient forum, and waives any right to
object, with respect to any Related Litigation brought in any
such court, that such court does not have jurisdiction over the
Licensee; and
(iii) consents and agrees to service of any summons, complaint or
other legal process in any Related Litigation by registered or
certified U.S. mail, postage prepaid, to the Licensee at the
address for notices described in paragraph 9.6 hereof, and
consents and agrees that such service shall constitute in every
respect valid and effective service (but nothing herein shall
affect the validity or effectiveness of process served in any
other manner permitted by law).
8.10 Interpretation. The headings of the sections and paragraphs in this
Agreement are provided for convenience of reference only and shall not
be deemed to constitute a part hereof. The Agreement is executed in
the English language.
8.11 Entire Agreement. This Agreement constitutes the entire agreement of
the parties hereto with respect to the subject matter of this Agreement
and supersedes all prior agreements and understandings, oral and
written, if any, among the parties hereto with respect to the subject
matter of this Agreement.
8.12 Severability. Should any provision of this Agreement be deemed in
contradiction with the laws of any jurisdiction in which it is to be
performed or unenforceable for any reason, such provision shall be
deemed null and void, but, except as provided in paragraph 4.2, this
Agreement shall remain in force in all other respects.
8.13 Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
LANXIDE CORPORATION NIHON CEMENT COMPANY LTD.
BY: /s/Xxxx X. Xxxxxxx BY: /s/Xxxxxx Xxxxxx
_________________________ _______________________
NAME: Xxxx X. Xxxxxxx NAME: Xxxxxx Xxxxxx
_________________________ _______________________
TITLE: President TITLE: President
_________________________ _______________________
LANXIDE TECHNOLOGY COMPANY L.P.
BY: LANXIDE CORPORATION
General Partner
BY: /s/Xxxx X. Xxxxxxx
_________________________
NAME: Xxxx X. Xxxxxxx
_________________________
TITLE: President
_________________________
SCHEDULE A
__________
"CRA Materials" shall mean
a) Ceramic-reinforced aluminum ("CRA") ingot for making cast CRA
products; and
b) CRA concentrate for making cast CRA products.
SCHEDULE B
__________
TERRITORY B
The following countries and administrative divisions to the extent of
their territorial boundaries as of the Effective Date:
Australia
Brunei
Burma
Cambodia
China
Indonesia
Laos
Malaysia
Mongolia
New Zealand
North Korea
Papua New Guinea
Philippines
Singapore
South Korea
Taiwan
Thailand
Vietnam
