Exhibit 10.45
[Letterhead of Shearman & Sterling]
[Dusseldorf, Germany Office]
September 19, 1996
BY PERSONAL DELIVERY
Rotary Power International, Inc.
Attn: Mr. Xxxxxxx Xxxxxxxx
(or the now current Chief Executive
Officer of RPI)
X.X. Xxx 000
Xxxx-Xxxxx
XXX - Xxx Xxxxxx 00000-0000
RE: Termination of License and Technical Assistance Agreement
of October 20, 1992 between Wankel Xxxxxx XxxX,
00000 Xxxx, Xxxxxxx and Rotary Power International,
Inc., Wood-Ridge, USA-New Jersey
Dear Sir:
We are representing Wankel Rotary GmbH, Germany. The client
has asked us to inform you about the following:
With letter of January 10, 1996, you have terminated the
above-mentioned License and Technical Assistance Agreement with immediate
effect. You have justified your notice of termination with a breach of our
obligation to deliver the know-how agreed upon. For this cause of termination,
Section 12.3(a) of the aforementioned agreement would apply.
Accordingly to our view, such termination with immediate
effect is not justified due to the following reasons:
I. In the first place, Wankel Rotary GmbH did not breach
any of its obligations under the above-mentioned
agreement, especially no delay in delivery of any
know-how subject to the License and Technical
Assistance Agreement occurred. Wankel Rotary GmbH has
delivered the know-how agreed upon.
-1-
II. In the second place, your termination with immediate
effect fails to provide for the appropriate form
determined in the License and Technical Assistance
Agreement (hereinafter the "Agreement"). According to
Section 15.5, any notice to be given under the
Agreement shall be in writing and be given by
personal delivery, registered post or by overnight
delivery. As you have not delivered your termination
notice by any of this means, the notice has not
become effective.
III. Furthermore, a termination with immediate effect
pursuant to Section 12.3(a) requires that the party
accused of the breach of contract fails to remedy
such breach within thirty (30) days of notice in
writing upon requiring such remedy by the other
party. You have never required such remedy and,
therefore, notice of termination does not meet the
pre-requisite of prior notification.
As the requirements set forth in Section 12.3(a) were not met,
you were not entitled to terminate the Agreement with immediate effect for cause
(Section 12.3(a)).
However, we consider your termination as an offer to terminate
the Agreement by mutual consent and accept this offer with effectiveness of this
day September 20, 1996.
We would like to stress that you did not effectively terminate
the Agreement for cause and, therefore, you are not entitled to raise any claims
resulting from a termination for cause.
Apart from the ineffectiveness of the notice of termination,
you are in any event obliged pursuant to Section 13 of the Agreement to:
(a) immediately return to Wankel Rotary GmbH all
technical material and all copies thereof in
your possession or in the possession of your
sub-licensees and subcontractors;
(b) deliver free of charge to Wankel Rotary GmbH
all licenses and authorities from Wankel
Rotary GmbH held by you or your sub-licensees
and subcontractors in relation to the small
Rotary engines, spare parts and large Rotary
engines and all or any other Intellectual
Property relating specifically to the small
Rotary engines and large Rotary engines or to
the Agreement.
Wankel Rotary GmbH presumes that you have already informed
your clients about the termination of the License Agreement. However, Wankel
Rotary GmbH itself will inform all U.S.-clients about the expiry of all licenses
given to RPI.
Please note, that any presentation, offering, etc. of the
licensed products to third parties is prohibited.
We request your compliance with the above-mentioned
obligations until September 30, 1996.
Yours sincerely,
/s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx
