Exhibit 10.07
INTELLECTUAL PROPERTY AGREEMENT
INTELLECTUAL PROPERTY AGREEMENT, dated as of April __, 1999, among
THE GENERAL CHEMICAL GROUP INC., a Delaware corporation ("GCG"), GENERAL
CHEMICAL INDUSTRIAL PRODUCTS INC., a Delaware corporation ("GCIP"), GENTEK INC.,
a Delaware corporation ("GenTek"), and GENERAL CHEMICAL CORPORATION, a Delaware
corporation ("GCC").
RECITALS
A. The Board of Directors of GCG has resolved to separate GCG's
performance products and manufacturing businesses from GCG's industrial
chemicals business by (a) having the performance products and manufacturing
businesses be owned by GenTek through GCC, and the industrial chemicals business
be owned by GCG through GCIP, and (b) afterwards, distributing as a dividend to
holders of stock of GCG all of the stock of GenTek. Following such separation
and distribution, each of GCG and GenTek will be publicly-owned companies.
B. The parties have entered into a Separation Agreement, dated as of
April __, 1999 (as the same may be amended, supplemented or restated from time
to time (the "Separation Agreement"), which sets forth the terms and conditions
of such separation and distribution.
C. In connection with such separation and distribution and as
provided by the Separation Agreement, the parties desire to allocate among
themselves various intellectual property rights and to provide for certain other
matters regarding their intellectual property, all upon the terms and conditions
set forth herein.
NOW, THEREFORE, the parties hereby agree as follows:
Section 1. Definitions. Terms used herein without definition shall
have the meanings given to them in the Separation Agreement. The following
terms, as used herein, have the following meanings:
"General Chemical Xxxx" means the several U.S. and foreign trademarks
incorporating the GENERAL CHEMICAL name, and the trade names, trademarks,
service marks and designs associated therewith, in various countries throughout
the world, and the registrations and applications for registration or renewal
therefor, including those
identified on Schedule A hereto, together with any and all common law rights
pertaining thereto.
"Industrial Chemicals Intellectual Property" means the following
intellectual property, assets and rights owned, used or held for use (including
by license) by GCG or any of its Subsidiaries primarily in connection with the
Industrial Chemicals Business: (a) United States and foreign patents and patent
applications (including docketed patent disclosures awaiting filing, reissues,
revisions, supplementary protection certificates, divisions, continuations,
continuations-in-part; re-examinations and extensions), patent disclosures
awaiting filing determination, inventions and improvements thereto, including
the patents and patent applications identified on Schedule B; (b) trademarks,
service marks, trade names, trade dress, logos, business and product names, and
registrations and applications for registration or renewal thereof, including
the trademarks and trademark registrations identified on Schedule C; (c)
copyrights (including in software) and registrations thereof; (d) processes,
designs, formulae, trade secrets, know-how, industrial models, confidential
information, drawings, and product specifications; (e) mask works and other
semiconductor chip rights, and applications, registrations and renewals thereof;
(f) intellectual property rights similar to any of the foregoing; and (g) copies
and tangible embodiments thereof, in whatever form or medium, including
electronic media; provided that the Industrial Chemicals Intellectual Property
shall not include any of the Licensed Marks, the Licensed Patents or the
Know-How licensed pursuant to Section 7.2.
"Know-How" means technical information, processes, procedures,
compositions, drawings, plans, specifications, techniques and other know-how.
For avoidance of doubt, it is expressly stipulated that Know-How shall not
include any patents, trademarks, or copyrights or any registration of or
application for registration or renewal of any of the foregoing.
"Licensed Marks" means (i) the General Chemical Xxxx, and (ii) the
trademark registrations and applications identified on Schedule D hereto and the
trade names, trademarks, service marks and designs associated therewith.
"Licensed Patents" means the patents and applications identified on
Schedule E hereto, together with any and all divisions, additions,
continuations, continuations-in-part, extensions, renewals, re-examinations and
reissues thereof.
"Patent Improvements" means any and all modifications, variations,
revisions or other improvements to the Licensed Patents, including patentable or
unpatentable information, technology or improvements that may also be subject to
coverage under copyright, trade secret, unfair competition or other legal
principles.
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Section 2. General Chemical Xxxx and Other Licensed Marks.
2.1. Grant. (a) From and after the date hereof, upon the terms and
subject to the conditions of this Agreement, GCC hereby grants, and GenTek shall
cause other members of the GenTek Group (as applicable) to grant, to the members
of the GCG Group a non-transferable and non-exclusive right and license to use,
without right of sublicense, throughout the world:
(i) the General Chemical Xxxx as part of the name or trade name
of GCG, GCIP or any other member of the GCG Group; and
(ii) each Licensed Xxxx (A) to conduct the Industrial Chemicals
Business as and to the extent conducted as of the Spinoff Date and
(B) to produce, sell, and otherwise distribute the Industrial
Chemicals Products; and
(iii) with the prior written consent of GenTek or GCC, which
shall not be unreasonably withheld, each Licensed Xxxx to produce,
sell, and otherwise distribute any other product or service, provided
that neither GenTek nor GCC shall be required to give any such
consent for any product or service that is produced, sold or
distributed by any member of the GenTek Group at the time its consent
is requested.
(b) GCC shall not, and GenTek shall cause members of the GenTek Group
not to, directly or indirectly, grant any license in, or the right to use, any
Licensed Xxxx to any Person (other than members of the GenTek Group) that,
directly or indirectly, (i) produces, sells or otherwise distributes any
Industrial Chemicals Product or (ii) owns, engages in, conducts, manages,
operates, controls, participates or has any interest in any Person that
produces, sells or otherwise distributes any Industrial Chemicals Product.
(c) Notwithstanding anything in this Agreement to the contrary, GCC
retains the right to use, and to grant a license and the right to use to other
members of the GenTek Group, the Licensed Marks in connection with the GenTek
Business and any other business or operation; provided that GCC may not use, and
shall not grant a right or license to use to other members of the GenTek Group,
any Licensed Xxxx in connection with the production, sale or other distribution
of any Industrial Chemicals Product, except (i) for the sale or other
distribution of any Industrial Chemicals Product purchased by the GenTek Group
pursuant to the Supply Agreements or (ii) if members of the GCG Group terminate
the Supply Agreements for any reason other than a breach thereof by members of
the GenTek Group, for the sale or other distribution of up to a total amount of
120,000 tons in any one year of Industrial Chemicals Products.
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2.2. Royalty. In consideration of the license granted in Section 2.1,
GCG and GCIP shall, together, pay a one-time license fee of $50,000 to GCC
within 30 days of the date of this Agreement.
2.3. Restrictions on Use. Without the prior written consent of GenTek
or GCC (which may be granted or withheld at their sole discretion), GCG and GCIP
shall not, and shall cause the other members of the GCG Group not to, (i) change
or modify any Licensed Xxxx, or create any design variation of any Licensed
Xxxx, (ii) join any word, symbol, name, xxxx or logo with any Licensed Xxxx so
as to form a composite trade name or xxxx, or (iii) use any other trademark or
trade name that is confusingly similar to any Licensed Xxxx.
2.4. Changes in Licensed Marks. Upon written notice to GCG and GCIP,
GenTek or GCC may, from time to time in its sole discretion, elect to (i)
discontinue any Licensed Xxxx and/or (ii) replace any Licensed Xxxx with or use
any new or different trademark or service xxxx ("New Xxxx"). Upon such election,
any such New Xxxx shall be designated a part of the Licensed Marks and as such
shall be subject to the terms of this Agreement, and Schedule A and/or Schedule
D, as the case may be, shall be deemed amended automatically to include such New
Xxxx. All uses of the Licensed Marks by GCG Group shall faithfully reproduce the
design and appearance of such Licensed Marks, as modified by GenTek or GCC from
time to time in its discretion; provided that the GCG Group may continue to use
the design and appearance of the Licensed Xxxx as existing prior to any such
modification for up to 12 months following the modification thereof by GenTek or
GCC.
2.5. Quality Control. Members of the GCG Group shall use the Licensed
Marks in accordance with such quality standards as may be established by GenTek
Group and communicated to GCG or GCIP from time to time or as may be agreed to
by GenTek or GCC, on the one hand, and GCG or GCIP, on the other hand; provided
that the quality standards maintained by GCG and its Subsidiaries prior to the
Spinoff shall at all times be acceptable to GenTek and GCC. Upon reasonable
request by GenTek or GCC from time to time, GCG and GCIP shall provide to GenTek
or GCC (as applicable) representative samples of its uses of the Licensed Marks
or permit GenTek or GCC to inspect places of business of the GCG Group where the
Licensed Marks are used. In the event GenTek or GCC notifies GCG or GCIP of the
failure by a member of the GCG Group to maintain appropriate quality standards
with respect to its uses of the Licensed Marks, GCG and GCIP shall use
reasonably diligent efforts to cure the cause of such failure or, if unable to
cure it, discontinue such uses of the Licensed Marks by members of the GCG
Group.
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Section 3. Licensed Patents.
3.1. Grant. (a) From and after the date hereof, upon the terms and
subject to the conditions of this Agreement, GCC hereby grants, and GenTek shall
cause other members of the GenTek Group (as applicable) to grant, to members of
the GCG Group a non-transferable and non-exclusive right and license to use,
without right of sublicense, in, to and under the Licensed Patents, to make,
have made, use and sell the Industrial Chemicals Products throughout the world.
(b) GCC shall not, and GenTek shall cause members of the GenTek Group
not to, directly or indirectly, grant any license in, or the right to use, any
Licensed Patent to any Person (other than members of the GenTek Group) that,
directly or indirectly, (i) produces, sells or otherwise distributes any
Industrial Chemicals Product or (ii) owns, engages in, conducts, manages,
operates, controls, participates or has any interest in any Person that
produces, sells or otherwise distributes any Industrial Chemicals Product.
3.2. Improvements to Licensed Patents. Members of the GenTek Group
and the GCG Group shall keep members of the other Group regularly and fully
informed about new designs, applications and other developments relating to
Licensed Patents which become available to them and which they are not legally
prevented from communicating to the other party, including any Patent
Improvements. If members of the GCG Group, independently of the GenTek Group,
develop any Patent Improvement, whether or not patented or patentable, members
of the GenTek Group shall have a non-exclusive, worldwide, royalty-free right
and license (without right of sublicense) to use such Patent Improvement. Any
Patent Improvement developed by members of the GCG Group independently of the
GenTek Group shall be the property of the GCG Group and, if patented, shall be
prosecuted and maintained at GCG Group's expense and, except as otherwise
provided in this Section 3.2, no member of the GenTek Group shall have any
right, title or interest in, to or under such Patent Improvement.
3.3 Royalty. In consideration of the license granted in Section 3.1,
GCG and GCIP shall, together, pay a one-time license fee of $25,000 to GCC
within 30 days of the date of this Agreement.
Section 4. Ownership and Maintenance.
4.1. Ownership. (a) GCG and GCIP acknowledge and admit the validity
of the Licensed Marks and Licensed Patents and agree that they will not,
directly or indirectly, challenge the validity of any Licensed Xxxx or Licensed
Patent, or any registrations thereof and/or applications therefor in any
jurisdiction, or the right, title and interest of the owner(s) thereof therein
and thereto. GCG and GCIP shall not, and shall cause the other
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members of the GCG Group not to, claim any interest in any Licensed Xxxx or
Licensed Patent in any jurisdiction, other than the rights expressly granted
hereunder. GCG and GCIP acknowledge that (i) the Licensed Marks and Licensed
Patents are and will remain the exclusive property of the owner(s) thereof, and
(ii) all uses of the Licensed Marks and Licensed Patents shall inure solely to
the benefit of the owner(s) thereof. GCG and GCIP shall not, and shall cause the
other members of the GCG Group not to, do or suffer to be done, at any time, any
act or thing that will in any way impair the rights of GCC or other members of
the GenTek Group in and to any Licensed Xxxx or Licensed Patent. This Agreement
shall not affect the rights of any members of the GenTek Group to enjoin or
obtain relief against any acts by third parties of trademark infringement or
unfair competition in any jurisdiction.
(b) GCG and GCIP shall not, and shall cause the other members of the
GCG Group not to, at any time, without the prior written consent of GenTek or
GCC (which shall not be unreasonably withheld), acquire a registration or file
and prosecute a trademark or patent application or applications to register any
Licensed Xxxx or Licensed Patent, or any component, variation or derivation
thereof, anywhere in the world. If a member of the GCG Group at any time,
without the prior written consent of GenTek or GCC (which shall not be
unreasonably withheld), files or causes to be filed, in its own name or
otherwise on its behalf, an application to register or otherwise takes steps
under applicable Law to obtain trademark protection of any Licensed Xxxx or
Licensed Patent in any country, territory or jurisdiction, GCG and GCIP shall,
at the direction of GCC or GenTek, either (i) assign and transfer to GCC or
GenTek, without further consideration, all right, title and interest in or to
such Licensed Xxxx or Licensed Patent in such country, territory or
jurisdiction, or (ii) surrender and abandon such registration or application for
registration.
4.2. Maintenance; Registrations; Filings. (a) GCC shall, and GenTek
shall cause other members of the GenTek Group to, use commercially reasonable
efforts to maintain the Licensed Marks and Licensed Patents and all
registrations thereof and/or applications therefor in all jurisdictions in which
each is currently registered or an application therefor is pending. Members of
the GCG Group shall execute all documents as are reasonably necessary or
appropriate to aid in, and shall otherwise cooperate (at GenTek's or GCC's
expense) with the efforts of GCC or other member(s) of the GenTek Group, as
applicable to prepare, obtain, file, record and maintain all such registrations
and applications.
(b) GCG and GCIP acknowledge that no member of the GenTek Group shall
have any further maintenance obligations as to the Licensed Marks or Licensed
Patents or any registration thereof or application therefor upon giving written
notice to GCG or GCIP that it does not intend to continue such maintenance.
GenTek and GCC acknowledge that, upon GCG's or GCIP's receiving such notice, any
member of the GCG
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Group shall have the right, after receiving the written consent of GenTek or GCC
(which shall not be unreasonably withheld), to continue such maintenance at such
member's expense and in GenTek's or GCC's name (as applicable). In the event a
member of the GCG Group elects to continue such maintenance, GenTek and GCC
shall, to the extent reasonably necessary, execute all documents to aid in, and
shall otherwise cooperate with, such GCG Group member's efforts to maintain
registrations and/or prosecute applications for the Licensed Marks and Licensed
Patents. Notwithstanding anything to the contrary contained herein, after giving
such notice, no party hereto shall be liable to any other in any manner for its
failure to maintain any Licensed Xxxx or Licensed Patent.
Section 5. Litigation Involving Licensed Marks and Patents.
5.1. Claims Against the Parties. GCG and GCIP shall promptly notify
GenTek or GCC upon any member of the GCG Group becoming aware of an actual or
threatened claim, or the likelihood of a claim being asserted, against any
member of the GenTek Group or of the GCG Group with respect to any Licensed Xxxx
or Licensed Patent. Except as may be required by applicable Law, the GCG Group
shall not communicate with any third party, respond to or otherwise take any
action with respect to any such actual or potential claim without the prior
written consent of GenTek or GCC (which consent shall not be unreasonably
withheld). GenTek and GCC shall, in their sole discretion, determine what
responses and other actions to take with respect to such claim, including (i)
controlling any and all defense of such claim and (ii) authorizing any member of
the GCG Group to respond to, defend or take action with respect to such claim.
5.2. Infringements by Others. (a) Each of GCG and GCIP shall promptly
notify GenTek and GCC upon any member of the GCG Group becoming aware of any
infringement, imitation or other illegal or unauthorized use of any Licensed
Xxxx or Licensed Patent by a party other than the parties hereto, and shall
provide GenTek and GCC with all information known to GCG or GCIP (as applicable)
regarding such infringement, imitation or other illegal or unauthorized use.
GenTek or GCC may take such steps to stop such infringement, imitation or other
illegal or unauthorized use as it deems necessary or appropriate in its sole
discretion to protect such Licensed Xxxx or Licensed Patent. GenTek and GCC
shall have the right, but not any obligation, to prosecute, at their expense,
such infringement shall have full control over any such action, including the
rights to select counsel (subject to Section 5.2(c)) to settle on any terms it
deems advisable, to appeal any adverse decision rendered in any court, to
discontinue any action taken by them, and otherwise to make any decision in
respect thereto as it deems advisable in its discretion. At the request of
GenTek or GCC, GCG and GCIP shall, and shall cause the other members of the GCG
Group, to permit any action to be brought in its name if required by Law. In the
event GenTek or GCC elects to bring suit, members of the GCG Group may
thereafter join such suit at their own expense, it being understood
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that GenTek or GCC shall, at all times, have the right to control the
prosecution of any such action.
(b) If GenTek or GCC does not elect to take such steps as GCG or GCIP
reasonably believes are necessary or appropriate to protect such Licensed Xxxx
or Licensed Patent from infringement or other illegal or unauthorized use within
90 days of the date GenTek or GCC first received notice thereof, GCG or GCIP
may, at its own expense and upon receiving the written consent of GenTek or GCC
(which consent shall not be unreasonably withheld), take such steps to stop such
infringement or other illegal or unauthorized use as it deems necessary or
appropriate to protect the Licensed Xxxx or Licensed Patent.
(c) With respect to any litigation or settlement involving any
Licensed Xxxx or Licensed Patent, all amounts recovered by the GenTek Group or
the GCG Group, or both, shall belong to the party or parties injured by the
infringement in proportion to the expenses and damages incurred by such party or
parties in prosecuting such action (other than expenses related to the voluntary
participation in the litigation permitted by Section 5.2(a)), or as otherwise
agreed by the parties. In reaching a settlement or compromise of any dispute or
litigation (including appeals, negotiations and the right to effect a settle
ment or compromise thereof) involving any Licensed Xxxx or Licensed Patent,
neither any member of the GenTek Group, on the one hand, nor any member of the
GCG Group, on the other hand, shall agree to any non-monetary relief which
materially and adversely affects the business of the other Group without the
prior written approval of the other.
(d) Each party agrees to cooperate with the other party in litigation
proceedings instituted hereunder at the expense of the party requesting such
cooperation and, subject to Article V of the Separation Agreement, shall provide
all information, authority and assistance as may be necessary.
Section 6. Compliance with Law; Legends. GCG and GCIP shall, and
shall cause the other members of the GCG Group to, use the Licensed Marks in
compliance with applicable Law and use any trademark notice that GenTek or GCC
deems advisable as it may instruct GCG or GCIP from time to time. GCG and GCIP
shall, and shall cause the other members of the GCG Group to, use the Licensed
Patents in compliance with applicable Law and xxxx all products made and sold
under the Licensed Patents, or their containers, in accordance with any
applicable patent marking Laws.
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Section 7. Use of Know-How.
7.1. By GenTek Group. (a) To the extent that the production, use, sale
or other distribution of GenTek Products prior to the Spinoff requires the use
or exploitation of any Know-How included as part of the Industrial Chemical
Intellectual Property, each of GCG and GCIP hereby covenants that it will not,
and will cause each other member of the GCG Group not to, assert any claims or
rights, bring any suit, or institute any other action against any member of the
GenTek Group in connection with the use or exploitation of such Know-How by
members of the GenTek Group after the Spinoff, but only to the extent such use
or exploitation is in compliance with applicable Law and is limited to the
production, use, sale or distribution of GenTek Products.
(b) In consideration of GCG's and GCIP's covenant in Section 7.1(a),
GenTek and GCC shall together pay a one-time fee of $10,000 to GCG within 30
days of the date of this Agreement.
7.2. By GCG Group. (a) To the extent that the production, use, sale or
other distribution of Industrial Chemicals Products prior to the Spinoff
requires the use or exploitation of any Know-How of any member of the GenTek
Group, each of GenTek and GCC hereby covenants that it will not, and will cause
each other member of the GenTek Group not to, assert any claims or rights, bring
any suit, or institute any other action against any member of the GCG Group in
connection with the use or exploitation of such Know-How by members of the GCG
Group after the Spinoff, but only to the extent such use or exploitation is in
compliance with applicable Law and is limited to the production, use, sale or
distribution of Industrial Chemicals Products.
(b) In consideration of GenTek's and GCC's covenant in Section 7.2(a),
GCG and GCIP shall together pay a one-time fee of $10,000 to GenTek within 30
days of the date of this Agreement.
Section 8. Transfer of Industrial Chemicals Intellectual Property. (a)
GCC hereby sells, transfers, assigns and grants, to GCIP all of its right, title
and interest in, to and under the Industrial Chemicals Intellectual Property
that is owned, used or held for use (including by license) by GCC. From time to
time at the reasonable request of GCG or GCIP, GenTek shall cause each member of
the GenTek Group to transfer, assign and grant, for no consideration, all of its
right, title and interest in, to and under the Industrial Chemicals Intellectual
Property owned, used or held for use (including by license) by such member of
the GenTek Group to any member of the GCG Group designated by GCG or GCIP.
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(b) GenTek and GCC shall execute and deliver such instruments, and take
such actions, as members of the GCG Group may reasonably request in order to
more effectively transfer to members of the GCG Group the Industrial Chemicals
Intellectual Property being transferred by this Section 8.
Section 9. Limitations on Licenses and Transfers. Notwithstanding
anything in this Agreement to the contrary, this Agreement shall not constitute
an agreement to license, assign or otherwise transfer any intellectual property
or other asset, in whole or in part, or any rights thereunder, if the agreement
or attempt to license, assign or otherwise transfer, without the consent of a
third party, would in any way adversely affect the rights of any member of the
GenTek Group or GCG Group (whichever the transferor, assignor or licensor may
be) with respect to such intellectual property or other asset. If an attempted
license, assign or other transfer would be ineffective or would adversely affect
the rights of any party hereto, the parties hereto will cooperate with each
other to effect any arrangement designed reasonably to provide for the
transferee, assignee or licensee thereof the benefits of any such intellectual
property or other asset.
Section 10. Termination of Licenses. (a) The licenses granted in
Sections 2 and 3 of this Agreement may be terminated (i) at any time by the
mutual written agreement of the parties hereto, or (ii) by either party (x) for
a material breach by the licensee thereunder which has been unremedied for
thirty days after written notice has been given to such breaching party, or (y)
upon the insolvency of the licensee thereunder.
(b) Upon termination of the licenses granted in Section 2 and/or
Section 3 of this Agreement, all rights in the Licensed Marks and/or Licensed
Patents granted thereunder shall automatically revert to the licensor thereof,
and the licensee shall have no further rights in, and shall immediately cease
all use of, the Licensed Patents and/or Licensed Marks, as applicable. Any
termination of any provision of this Agreement for any reason whatsoever shall
not affect the obligations of the parties under Section 11, which shall survive
such termination.
Section 11. Indemnification. (a) GCG and GCIP shall, jointly and
severally, indemnify, defend and hold harmless the GenTek Indemnitees from and
against any and all Losses of the GenTek Indemnitees arising out of, by reason
of or otherwise in connection with the use by members of the GCG Group of any
Licensed Xxxx, any Licensed Patent, any Know-How referred to in Section 7.2 or
any Industrial Chemicals Intellectual Property, at any time prior to or after
the Spinoff Date.
(b) GenTek and GCC shall, jointly and severally, indemnify and hold
harmless the GCG Indemnitees from and against any and all Losses of the GCG
Indemnitees arising out of, by reason of or otherwise in connection with the use
by members of the GenTek
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Group of any Know-How referred to in Section 7.1 at any time prior to or after
the Spinoff Date.
(c) All claims for indemnification under this Section 11 shall be in
addition to indemnification rights of the parties pursuant to, and shall be made
in accordance with, Article VII of the Separation Agreement.
Section 12. Further Assurances. Each of the parties shall use all
reasonable efforts to (i) execute and deliver such instruments and documents as
the other party may reasonably request in order to carry out the intent and
accomplish the purposes of this Agreement, and (ii) take or cause to be taken
all actions, and do or cause to be done all other things, necessary or desirable
to carry out the intent and accomplish the purposes of this Agreement.
Section 13. Notices. All notices, consents, requests, instructions,
approvals and other communications provided for in, or in connection with, this
Agreement shall be in writing and shall be deemed validly given upon personal
delivery or one day after being sent by overnight courier service or by telecopy
(so long as for notices or other communications sent by telecopy, the
transmitting telecopy machine records electronic confirmation of the due
transmission of the notice), at the following address or telecopy number, or at
such other address or telecopy number as a party may designate to the other
parties:
If to GenTek or GCC, to:
00 Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telecopy: [973- ]
Attention: General Counsel
with a copy to:
Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxxxxx 00000
Telecopy: [603- ]
Attention: Corporate Secretary
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If to GCG or GCIP, to:
00 Xxxx Xxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telecopy: [973- ]
Attention: General Counsel
with a copy to:
Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxxxxx 00000
Telecopy: [603- ]
Attention: Corporate Secretary
Section 14. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the United States with respect to
trademark and patent issues, and in all other respects the State of New York,
without regard to the conflicts of laws provisions thereof.
Section 15. Choice of Forum. Each of the parties hereby irrevocably
submits to the exclusive jurisdiction of the courts of the State of New York and
the Federal courts of the United States of America located in the State, City,
and County of New York solely in respect of the interpretation and enforcement
of the provisions of this Agreement and of the documents referred to in this
Agreement, and in respect of the transactions contemplated hereby and thereby,
and hereby waives, and agrees not to assert, as a defense in any action, suit,
or proceeding for the interpretation or enforcement hereof or of any such
document, that it is not subject thereto or that such action, suit, or
proceeding may not be brought or is not maintainable in said courts or that the
venue thereof may not be appropriate or that this Agreement or any such document
may not be enforced in or by such courts, and the parties hereto irrevocably
agree that all claims with respect to such action or proceeding shall be heard
and determined in such a court. Each of the parties hereby consents to and
grants any such court jurisdiction over the person of such parties and over the
subject matter of any such dispute and agrees that mailing of process or other
papers in connection with any such action or proceeding in the manner provided
in Section 13 or in such other manner as may be permitted by law, shall be valid
and sufficient service thereof.
Section 16. Amendments; Waivers, etc. (a) Neither this Agreement nor
any term hereof may be amended, waived, discharged or terminated other than by
an instrument in writing, signed by the party against which enforcement of such
amendment, discharge, waiver or termination is sought.
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(b) No failure or delay by any party in exercising any right, power or
privilege under this Agreement shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies provided herein shall be cumulative and not exclusive of any rights or
remedies provided by law.
Section 17. Assignment. (a) This Agreement shall not be assignable or
otherwise transferable by a party without the prior consent of the other
parties, and any attempt to so assign or otherwise transfer this Agreement
without such consent shall be void and of no effect; provided that any party
hereto may assign all or any portion of its rights under this Agreement to (i)
any other member of its Group, (ii) any lender to such party or any member of
its Group as security for obligations to such lender in respect of the financing
arrangements entered into by members of such party's Group in connection with
the Spinoff, and any refinancings, extensions, refundings or renewals thereof,
and (iii) to any purchaser or transferee of all or substantially all of the
assets of such party that executes, and delivers to the other parties hereto, a
written assumption of the obligations of such party under this Agreement;
provided, further, that no assignment hereunder shall affect the Liabilities of
any such assignor under this Agreement.
(b) This Agreement shall be binding upon the respective successors and
assigns of the parties hereto.
Section 18. Third Party Beneficiaries. Nothing in this Agreement shall
be construed as giving any Person, other than the parties hereto and their
successors and permitted assigns, any right, remedy or claim under or in respect
of this Agreement or any provision hereof.
Section 19. Severability. If any provision of this Agreement is held to
be invalid or unenforceable for any reason, it shall be adjusted rather than
voided, if possible, in order to achieve the intent of the parties hereto to the
maximum extent possible. In any event, the invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity
or enforceability of the remainder of this Agreement in that jurisdiction or the
validity or enforceability of this Agreement, including that provision, in any
other jurisdiction.
Section 20. Section Headings. The article and section headings of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
Section 21. Integration. This Agreement, including the Schedules
hereto, and the other documents delivered pursuant hereto constitute the full
and entire understanding
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and agreement of the parties and supersede any and all prior agreements,
arrangements and understandings relating to the subject matters hereof and
thereof.
Section 22. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original and all of
which shall together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
THE GENERAL CHEMICAL GROUP INC.
By
______________________________________
Name:
Title:
GENERAL CHEMICAL INDUSTRIAL
PRODUCTS INC.
By
______________________________________
Name:
Title:
GENTEK INC.
By
______________________________________
Name:
Title:
GENERAL CHEMICAL CORPORATION
By
______________________________________
Name:
Title:
15