Exhihit 10.11
TRADE NAME LICENSE AGREEMENT
Agreement made as of December 31, 1996, by and between XXXX CORPORATION, a
Virginia corporation with offices at 000 Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx
00000-0000 ("Xxxx") and PRIMEX TECHNOLOGIES, INC., a Virginia corporation with
offices at 00000 0xx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000-0000
("Primex").
In consideration of the mutual covenants and obligations hereunder, the
parties agree as follows:
WHEREAS, Olin has transferred to Primex all or substantially all of the
assets related to Olin's Ordnance and Aerospace divisions (collectively the
"Primex Business") in anticipation of the spin-off of Primex to the shareholders
of Olin; and
WHEREAS, Primex wishes to use, and Olin is willing to authorize Primex to
use, certain trade names associated with the Primex Business for the limited
purposes provided herein.
NOW, THEREFORE, Olin and Primex agree as follows:
1 DEFINITIONS.
1.1 AFFILIATE. "Affiliate" shall mean, when used with respect to a
specified Person, another Person that directly, or indirectly through one or
more intermediaries, Controls or is Controlled by or is under common Control
with the Person specified.
1.2 CONTROL. "Control' shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management or policies of a
Person, whether through the ownership of voting securities, by contract or
otherwise, and the terms "Controlling" and "Controlled" shall have meanings
correlative thereto.
1.3 EFFECTIVE TIME. "Effective Time" shall mean the Effective Time
specified in that certain Distribution Agreement made between Olin and Primex
dated as of December 30, 1996.
1.4 PERSON. "Person" shall mean any natural person, corporation,
business trust, joint venture, association, company, partnership or government,
or any agency or political sub-division thereof.
1.5 PRIMEX BUSINESSES. "Primex Businesses" shall mean the businesses of
the Ordnance and Aerospace Divisions of Olin or their constituent companies and
their predecessor companies as they were carried out on or before the Effective
Time.
1.6 TRADE NAMES. "Trade Names" shall mean all of, and "Trade Name" shall
mean any of, the following: XXXX, XXXX CORPORATION, OLIN AEROSPACE, OAC, and
XXXX ORDNANCE.
2. LICENSE. Olin hereby grants to Primex and Primex's subsidiary companies a
worldwide, nonexclusive, royalty-free license to use the Trade Names in
accordance with the terms of this Agreement.
3. LIMITED USE.
3.1 Primex shall use the Trade Names only to the extent reasonably
necessary:
(i) To inform its customers and the public that Primex includes the
businesses formerly conducted by Olin under the Trade Names. In all uses of the
Trade Names, Primex shall ensure that the Trade Name appears in a less prominent
position than its current business name, and appears only to inform the public
(e.g., "Primex Technologies, formerly Xxxx Ordnance "or" Primex Aerospace
Company, formerly Olin Aerospace Company").
(ii) For purposes of operating under permits, licenses, and other
governmental authorizations granted to Olin and assigned to Primex (collectively
"Permits"), and to provide Primex the time necessary to amend the existing
Permits or file applications for new Permits in Primex's own name, and to
continue required reporting or product delivery under the Trade Name(s) until
the earlier of the effective date of the amended or new Permits or the
expiration of this Agreement.
(iii) For completion of contracts and other agreements entered into
by Olin under the Trade Names.
(iv) To use up stocks of packaging and forms purchased by Olin and
any of its subsidiaries prior to the date hereof and transferred to Primex and
any of its subsidiaries.
3.2 Primex shall not use any of the Trade Names in any manner that
suggests an agency, partnership, or joint venture relationship with Olin.
3.3 Olin reserves all rights in the Trade Names not expressly granted to
Primex herein.
4. REASONABLE EXTENSION. Olin shall not withhold its approval of any
extension of time that Primex Technologies may reasonably request to continue to
use any of the Trade Names, so long as (i) in Olin's judgment, Primex
Technologies is diligently proceeding in good faith to eliminate its use of any
of the Trade Names, and (ii) in no event shall any such extension exceed 18
months following the Effective Time.
5. QUALITY CONTROL. Upon Olin's request, Primex will provide Olin with
samples of each use of a Trade Name for Olin's review and approval. Primex
shall immediately correct any deficiencies noted by Olin for failure to comply
with this Agreement.
6. NO WARRANTY. Olin is licensing the Trade Names to Primex "AS IS." Olin
makes no representations or warranties as to the Trade Names, and hereby
excludes all warranties, express or implied.
7. OWNERSHIP. Primex acknowledges that Olin is the owner of the Trade Names
and owns all rights in the Trade Names. Primex shall take no action during or
following the term of this Agreement contrary to, or in conflict with, Olin's
rights in the Trade Names.
8. INDEMNIFICATION. Primex agrees to defend, indemnify, and hold Olin
harmless from and against all losses, expenses (including reasonable legal fees
and costs), damages, injuries, liabilities, and claims arising out of or
relating to Primex's use of any of the Trade Names.
9. TERM AND TERMINATION.
9.1 This Agreement shall be effective for one (1) year beginning on
the date first set forth above, unless sooner terminated as provided herein.
9.2 Either party may terminate this Agreement effective upon thirty
(30) days' notice to the other in the event of a material breach of this
Agreement by the other party that the breaching party fails to correct during
such period.
9.3 Immediately upon expiration or termination of this Agreement,
Primex will cease and desist from all uses of any of the Trade Names.
9.4 Each party's obligations under Articles 6, 7, 8 and 9 shall
survive expiration and termination of this Agreement.
10. FURTHER ASSURANCES. Each party will execute all documents reasonably
requested by the other to effect any of the provisions of this Agreement.
11. NOTICES. Notices or requests to be given or made hereunder shall be
delivered in person or sent by registered mail or telefax or telex acknowledged
by the operator of the addressee at the following addresses or other addresses
that each Party may from time to time designate.
(a) for PRIMEX:
PRIMEX TECHNOLOGIES, INC.
00000 Xxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000-0000
ATTENTION: General Counsel
Tel: (000)000-0000
Fax: (000)000-0000
(b) for OLIN:
XXXX CORPORATION
000 Xxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Corporate Secretary
Tel: (000) 000-0000
Fax: (000) 000-0000
12. ASSIGNMENT
12.1 LIMITATIONS ON ASSIGNMENT. This Agreement shall not be assigned by
either Party to a third party without the prior written consent of the other
Party, except to: an Affiliate of a Party, or a successor in the business to
which this Agreement relates, or a successor in all or substantially all of the
assets of either Party, provided that the successor agrees in writing to accept
the rights and to be bound by the obligations of the assigning Party, any other
assignment being void. The Parties agree to guarantee the performance of their
Affiliates under this Agreement.
12.2 CHANGE OF CONTROL. For purposes of Section 11.1. the following shall
be deemed an assignment by a Party of this Agreement:
12.2.1: a Person (or two or more Persons acting as a "person" within
the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the "1934 Act")), other than such Party, or an employee benefit plan
(or related trust) of such Party, becomes the "beneficial owner" (as defined in
Rule 13d-3 under the 0000 Xxx) of 15% or more of the then outstanding voting
stock of such Party, or during any period of two consecutive years, individuals
who at the beginning of such period constitute the Board of Directors of such
Party (together with any new director whose election by the Board or whose
nomination for election by such Party's shareholders was approved by a vote of
at least two-thirds of the directors then still in office who either were
directors at the beginning of such period or whose election or nomination for
election was previously so approved) cease for any reason to constitute a
majority of the new directors then in office, and/or
12.2.2: any consolidation or merger of such Party in which such
Party is not the continuing or surviving corporation or pursuant to which shares
of such Party's common stock would be converted into cash, securities or other
property other than a merger in which holders of such Party's common stock
immediately prior to the merger will have the same proportionate ownership of
common stock of the surviving corporation immediately after the merger, and/or
12.2.3: any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of all or substantially all the
assets of such Party, and/or
12.2.4: adoption of any plan or proposal for the liquidation or
dissolution of such Party.
12.3 VIOLATION. Any assignment in violation of this Article 12 shall be
considered void.
13. GENERAL PROVISIONS.
13.1 ENTIRE AGREEMENT. This Agreement embodies the entire
understanding of the Parties. No amendment or modification of the Agreement
shall be valid or binding upon the Parties unless it is in writing and signed by
the respective duly authorized officers of the Parties.
13.2 Parties ARE INDEPENDENT. This Agreement does not and shall not be
deemed to make either Party the agent, legal representative or partner of the
other Party for any purpose whatsoever, and neither Party shall have the right
or authority to assume or create any obligation or responsibility whatsoever,
expressed or implied, on behalf of or in the name of the other Party or to bind
the other Party in any respect whatsoever.
13.3 WAIVER. The failure of either Party at any time to require
performance by the other Party of any provision hereof shall in no way affect
the full right to require such performance within a reasonable time or
thereafter the performance of that and all other provisions, nor shall the
waiver of any succeeding breach of such provision or any other provision operate
as a waiver of the provision itself.
13.4 SEVERABILITY. The invalidity or unenforceability of any one or more
of the provisions of This Agreement shall not affect the validity or
enforceability of the remaining provisions.
13.5 GOVERNING LAW. This Agreement shall be construed and
governed, in all respects, by the law of the State of Illinois applicable to
contracts made and to be performed in that state without reference to any
provisions relating to conflicts of law.
13.6 JURISDICTION. Each Party hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
Illinois State court or Federal court of the United States of America sitting
anywhere within a radius of 50 miles from East Alton, Illinois, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement, or for recognition or enforcement of any judgment,
and each of the Parties hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such Illinois State or, to the extent permitted by law, in such Federal
court. Each of the Parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
13.7 VENUE. Each Party hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement in any Illinois State
court or such Federal court located in the State of Illinois. Each of the
Parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
13.8 SERVICE OF PROCESS. Each Party to this Agreement irrevocably consents
to service of process in the manner provided for notices in Article 11 hereof.
Nothing in this Agreement will affect the right of any party to this Agreement
to serve process in any other manner permitted by law.
13.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of this
shall constitute one and the same instrument
14. SETTLEMENT OF DISPUTES
In the event of any disputes arising out of or in connection with the execution,
interpretation, performance or nonperformance of this Agreement, Primex and Olin
shall use the following procedure prior to either Party pursuing other available
legal remedies:
14.1 ALTERNATIVE DISPUTE RESOLUTION. Upon signing of this Agreement each
Party will designate one representative ("Representative") for the purpose of
resolving disputes which may arise from time to time. Upon a dispute arising,
either or both Representatives may request in writing a conference with the
other. If so requested, the conference shall occur within ten (10) days of the
initial written request and shall be held via telephone or at East Alton,
Illinois, or elsewhere, at the option of the Representatives. The purpose and
scope of the conference shall be limited to issues related to resolving the
dispute. At the conference, each Representative, or his or her designee, shall
use best efforts to attempt to resolve the dispute. If the dispute has not been
settled within thirty (30) days of the first meeting of the Representatives, the
parties shall establish a Management Appeal Board ("MAB") within ten (10) days
of receipt of a request by either Party to set up an MAB. The MAB shall
consist of two (2) members of each respective Party's management. The President
of OLIN shall appoint two members to represent OLIN and the President of PRIMEX
shall appoint two members to represent PRIMEX. The sole purpose of MAB shall be
to resolve any dispute over which the Representatives failed to resolve. The
MAB members shall be persons other than the Representatives. The MAB shall meet
at East Alton, Illinois or otherwise confer to resolve the dispute by good faith
negotiations, which may include presentations by the Representatives or others.
14.2 ARBITRATION. In the event the parties are unable to resolve their
disputes after availing themselves of the processes set forth in Section 14.1
above for a period of ninety (90) days, such disputes, shall be solely and
finally settled by three arbitrators in accordance with the Commercial
Arbitration Rules of the AAA (the "Arbitration Rules"). The Party electing
arbitration shall so notify the other Party in writing in accordance with the
Arbitration Rules, and such notice shall be accompanied by the name of the
arbitrator selected by the Party serving the notice. The second arbitrator
shall be chosen by the other Party, and a neutral arbitrator shall be chosen by
the two arbitrators so selected. If a Party fails to select an arbitrator or to
advise the other Party of its selection within thirty (30) days after receipt by
such a Party of the notice of the intent to arbitrate, the second arbitrator
shall be selected by the AAA. If the third arbitrator shall not have been
selected within thirty (30) days after the selection of the second arbitrator,
the appointment shall be made by the AAA. All such proceedings shall be
conducted in New York, New York. The arbitrator shall make detailed findings of
fact and law in writing in support of the decision of the arbitrator panel, and
is empowered to award reimbursement of attorneys' fees and other costs of
arbitration to the prevailing Party, in such manner as the arbitrator panel
shall deem appropriate. The provisions of this Section 14.2 shall not be deemed
to preclude any Party hereto from seeking preliminary injunctive relief to
protect or enforce its rights hereunder, or to prohibit any court from making
preliminary findings of fact in connection with granting or denying such
preliminary injunctive relief, or to preclude any Party hereto from seeking
permanent injunctive or other equitable relief after and in accordance with the
decision of the arbitrator panel. Whether any claim or controversy is arbitrable
or litigable shall be determined solely by the arbitrator panel pursuant to the
provisions of this Section 14.2. Any monetary award of the arbitrators panel
shall include interest from the date of any breach or any violation of this
Agreement. The arbitrators shall fix an appropriate rate of interest from the
date of the breach or other violation to the date when the award is paid in
full. The parties agree that judgment on the arbitration award may be entered
in any court having jurisdiction over the parties or their assets.
14.3 CONTINUING OBLIGATIONS. It is expressly agreed that the failure of
the parties to resolve a dispute on any issue to be resolved hereunder shall not
relieve either Party from any obligation set forth in this Agreement. In
addition, notwithstanding the pendency of any such dispute, neither Party will
be excused of its obligations hereunder to cooperate with the other to
effectuate the purposes of this Agreement.
IN WITNESS WHEREOF, each party has caused its duly authorized
representative to execute this Agreement as of the date set forth above.
XXXX CORPORATION PRIMEX TECHNOLOGIES, INC.
By: Xxxxxxx X. Xxxxxxx, Xx. By: Xxxxxx X. Pain
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Name: Xxxxxx X. Pain
Name: Xxxxxxx X. Xxxxxxx, Xx. Title: Vice President
Title: Vice President,
General Counsel and Secretary
