Exhibit 10.8
RESTATED LICENSE AGREEMENT
LICENSE AGREEMENT made this 30th day of June, 2004 between OVATION
PRODUCTS CORPORATION, a Delaware Corporation with principal offices at 0
Xxxxxxxxx Xxxxx, Xxxxxx, XX 00000 (hereinafter "Ovation") and WMS FAMILY I LLC,
a Delaware limited liability company with principal offices at 000 Xxxxxxxxxx'x
Xxx, Xxxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter "WMS").
WHEREAS, on August 21, 1997 the predecessors in interest of each of
Ovation and WMS entered into a license agreement and a "Rider to License
Agreement" for the manufacturing and selling of a countertop and undercounter
distiller to be used for purified water in the home within the "Territory" as
defined therein (collectively the "1997 License"); and
WHEREAS, the parties now wish to amend and restate the 1997 License;
NOW, THEREFORE, the parties have agreed as follows:
1. DEFINITIONS: For purposes of this Agreement:
"Breadboard Prototype" shall mean a working engineering prototype of the
Product, not yet designed for consumer packaging, but with components of
appropriate size for the Products laid out as a unit producing the number
of gallons of distilled water per hour specified for the Products at the
electric consumption specified for the Products.
"Commencement Date" shall have the meaning given that term in Section 13
hereof;
"CSA" means Canadian Standards Association;
"Exclusive Territory" means the residential market in the United States,
Canada and Mexico;
"Marketable Products" means Products that can be readily manufactured for
a price of $75.00 (USD) or less, FOB Boston, in quantity sufficient (but
not excessive) to allow Sales permitting WMS to reach the royalty minimums
set forth herein;
"Non-exclusive Territory" means all markets in the entire world except for
the Exclusive Territory;
"Patent Countries" shall mean the United States, Canada, Mexico, Peoples
Republic of China, India and each country from time to time granting
Ovation patent (or similar) protection to the Proprietary Rights
"Products" means countertop and undercounter or other "point of use"
distillers designed for residential use capable of purifying approximately
3 gallons per hour or less of water with electricity operating cost
targeted at four cents per gallon;
"Proprietary Rights" means any patent or patent application relating to
the Product or to any Ovation technology and any trademark of Ovation;
"Sales" (and if singular, "Sale") shall have the meaning given that term
in Section 8.A. hereof;
"Specifications" means those technical details that Ovation reasonably
identifies to WMS as being necessary or useful to the efficient
manufacture or operation of the Products, and/or necessary for the success
of any planned patent application related to the technology and design of
the Products;
Restated License Agreement
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"Technical Information" means all technical information, including
drawings, Specifications, patents, patent applications, information
relating to research and development, developments, improvements, methods
and processes, know-how, drawings, blueprints, specifications, product
briefs, algorithms, computer programs and software, compositions, works,
concepts, designs, ideas, prototypes, models, samples, screens, molds and
dies from time to time in Ovation's possession or control related to the
Products;
"Territory" means the Exclusive Territory and the Non-exclusive Territory;
and
"Triggering License" shall mean any license or assignment of rights of any
kind pursuant to which Ovation may from time to time grant licenses of
certain technology, expertise, patents, trade secrets or other
intellectual property rights to third parties or to joint ventures in
which it participates.
"UL" means Underwriter Laboratories, Inc.
2. LICENSE FOR SALE AND MANUFACTURE OF THE PRODUCT: WMS is granted the right and
license to manufacture, have manufactured, use, market, distribute and/or sell
and sub-license the sale, distribution and manufacture of the Products in the
Territory, such rights to be exclusive in the Exclusive Territory. WMS
represents that it has the knowledge and expertise necessary to manufacture the
Products described herein.
3. TERRITORY: Ovation hereby agrees that neither it, nor any other person will
appoint any other distributor or agent to engage in the sale or distribution of
the Products to customers in the Exclusive Territory, nor will any of such
persons solicit or approach any person within the Exclusive Territory for any
purpose related to the sale, purchase, use, or distribution of the Products,
including, but not limited to, soliciting orders of the Products, for its own
account or for the account of any party other than WMS during the term of this
Agreement. Ovation shall protect WMS's rights in the Exclusive Territory by
prohibiting any other licensee from exporting from any country outside the
Exclusive Territory into the Exclusive Territory. Ovation shall also refrain
from making direct or indirect sales into the Exclusive Territory.
4.1. INFORMATION AND START-UP OF MANUFACTURE:
A. Ovation will use its best efforts, within the context of its financing,
to finalize and develop the technology using its most current technology
to allow WMS to initiate manufacturing engineering and testing of
Marketable Products. Ovation will use its best efforts, within the context
of its financing, to deliver to WMS, as soon as reasonably possible, a
Breadboard Prototype and a proposed first draft of engineering drawings
for a pre-production unit sufficient to obtain a manufacturing quote and
(with life-testing) obtain UL and CSA approval.
B. Ovation will supply to WMS copies of all Technical Information promptly
upon execution hereof. Ovation hereby represents and warrants to WMS that
it owns all right, title and interest in and to the Technical Information
and the innovative technology being developed by it, and that immediately
upon the filing of any application for a patent or patents thereon, it
shall have full right, title and interest, free of any claims from the
inventors or any third parties, to grant, and will grant, WMS a security
interest in each and every such patent application and the resulting
patent pursuant to that certain Security Agreement dated August 21, 1997
between the parties or their predecessors in interest. Ovation represents
and warrants that any Technical Information supplied hereunder is free and
clear of all liens, encumbrances and claims to title and does not infringe
on the rights, title or interests of any third party. In the event that
any third party makes a claim that WMS's manufacture, use, or sale of any
Products or, access or use of the Technical Information supplied
hereunder, infringes upon its rights, Ovation shall indemnify and defend
WMS as provided in paragraph 9.
Restated License Agreement
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C. WMS further represents that it if it elects to complete the design as
provided below in Section 4.2, it shall make every good faith effort
adequate to complete the design of the Products (including "life
testing"), and if it elects to await Ovation's completion of the design,
Specifications, etc., but to manufacture or contract for the manufacture
of the Products as provided below, it shall make every good faith effort
adequate to manufacture such Products in accordance with the
Specifications when Ovation has developed and delivered to WMS the
Breadboard Prototype and a proposed first draft of engineering drawings
for a pre-production unit.
D. Notwithstanding anything to the contrary herein contained, WMS may
submit proposed alterations to the Specifications for the purpose of
improving the technology, marketability, efficiency or consumer appeal of
the Product. Ovation shall review such modifications within 20 business
days (and such alterations shall become a part of the "Specifications"
from and after the 20th business day) unless such modifications (i)
infringe on proprietary rights of a third party; or (ii) are reasonably
deemed by Ovation to increasing the danger to users of the Products (which
objection shall be moot if the Product as altered receives the approval of
UL).
E. The Technical Information shall, at all times, remain the property of
Ovation and shall be returned by WMS to Ovation immediately after the
termination or the expiration date of this Agreement.
F. In the development and transfer of the prototypes, drawings,
Specifications and Technical Information to WMS, Ovation shall use its
best efforts to enable WMS to manufacture Marketable Products. WMS
guarantees Ovation it will manufacture the Products to the Specifications
as modified pursuant to Paragraph D of this Section 4.1 (within reasonable
commercial tolerances) if the Products are Marketable Products at the
Specifications.
G. From time to time at reasonable times, Ovation shall allow personnel of
WMS to visit the plant and facilities of Ovation and its affiliated
companies for the purpose of obtaining the assistance of its and their
personnel in explaining the practices and expertise of Ovation in the
development and testing of the Products; and render such other assistance
to WMS as may reasonably be necessary or advisable.
4.2. DEVELOPMENT BY WMS.
A. At any time WMS may commence development of the Breadboard Prototype
and manufacturing engineering drawings of the Products upon notice to
Ovation that it wishes to do so. If WMS determines to commence development
of the Breadboard Prototype and drawings as provided herein, Ovation will
provide all available Technical Information and other documents to WMS as
he or it may reasonably anticipate are useful to speed the development of
the prototype, and Ovation will further use its best efforts, within the
context of its financing, to provide such engineering assistance to WMS as
he or it may reasonably anticipate are useful to speed the development of
the prototype and drawings. Upon such notification by WMS, Ovation will no
longer be required to deliver the prototypes and drawings described in
Section 4.1.A. or obtain UL and CSA approval. Upon such event, any
reasonable verified expenses incurred by WMS for the development of
Ovation technology for the prototype and drawings (excluding mass
production tooling) and/or the costs for testing reasonably related to,
and obtaining, UL and/or CSA approvals (if WMS shall elect, in the
exercise of its sole discretion, to pursue such approvals), at WMS'
option, shall be either (i) credited against amounts otherwise due to
Ovation from WMS hereunder regardless of when such amounts shall come due;
or (ii) paid by Ovation's issuance to WMS of that number of shares of
Ovation Common Stock as such amount would purchase at the then most recent
market price per share for such Common Stock, as determined in a
reasonable manner in good faith based on then recent sales of Ovation's
securities. Any patent technology, know how, proprietary process or other
improvements to the Ovation's technology or the manufacture of the
Products resulting from WMS' or its designee's efforts in developing the
Restated License Agreement
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technology for the manufacture will be made available to Ovations for its
use free of charge or license fee.
B. In all events, if WMS shall so choose at any time to purchase
materials, parts or the Products from Ovation, it may do so (provided that
Ovation is in the business of selling the same) on the price and payment
terms set forth in that certain Distribution Agreement between the parties
dated August 21, 1997, as amended. This provision shall survive the breach
or other termination of this License, and shall continue until the
expiration of the Distribution Agreement.
C. In all events, if WMS shall so choose at any time to purchase
engineering services, materials, parts or the Products from Ovation which
are not covered in the Distribution Agreement or other agreements, then
Ovation and WMS will negotiate in good faith to reach agreement for the
purchase of such services, materials, parts or Products, but in no event
shall WMS be obligated to pay a higher hourly charge than the lowest rate
charged by Ovation to any other customer or client; provided however that
if any such services, materials or parts are related to any application
for UL or CSA approval, Ovation shall charge WMS only its direct costs for
such services, materials or parts.
5. SUBLICENSES BY WMS. Except as otherwise specifically provided in Section 15
hereof, WMS shall have the right to sub-license any and all of its rights
hereunder to any party, subject only to Ovation right to review and approve the
sub-licensee, such approval not to be unreasonably withheld, delayed or
conditioned, provided further that the royalties due hereunder with respect to
any sales by any such sub-licensees shall be based upon the Sales (as that term
is defined in Section 8 hereof) by the sub-licensee as though such sales were
made directly by WMS.
6. WARRANTY.
A. WMS shall accept and assume liability for any and all warranty claims
for the Products based upon quality, workmanship and all design or
manufacturing decisions reflecting specifications not developed or
approved by Ovation (or deemed approved pursuant to Section 4.1.C.
hereof). WMS shall extend in writing to each customer the standard
warranty remedy of repair or replacement of any Product deemed by WMS to
be defective.
B. Ovation shall be liable for any and all warranty claims based upon the
design of the Products and specifications developed or approved by Ovation
(or deemed approved pursuant to Section 4.1.C. hereof). WMS shall, in the
event of such a claim, immediately provide notice of such claim to Ovation
and Ovation shall negotiate such claim directly with said customer.
C. Ovation warrants that the design and manufacture of the Products does
not infringe upon the rights, title or interests of any third party.
7. PROMOTION AND SALE.
A. All the advertising and promotional costs, such as brochures, leaflets,
exhibition participation and documentation referring to the Products to be
utilized in the Territory, will be borne by WMS.
B. For advertising and promotional materials to be utilized in common by
both WMS and Ovation, the parties shall agree, in advance, upon the method
of apportionment.
C. The parties hereto shall try to mutually keep the other party informed
of happenings in their respective markets for the Products; including the
major events, technical and scientific questions raised by customers and
the position of competitors.
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8. ROYALTIES.
A. For purposes of this ARTICLE 8 AND ARTICLE 11:
(i) "Sales" shall mean all revenues received by WMS or any licensee
on account of sales of the Products, net of credits and returns granted to
customers, customs duties, sales taxes, shipping and transportation (if
invoiced separately) and value-added taxes (if any) applicable to the
Products. A Product will be considered sold and includable in the
calculation of the quarterly royalty payment due to Ovation upon WMS's (or
any sub-licensee's) receipt of full payment from the party purchasing the
Products.
(ii) A "year' shall be the twelve month period commencing on the
first day of the month following the Commencement Date and each
anniversary thereof:
B. As a condition of maintaining the exclusivity of this License, WMS
agrees to pay and shall make minimum royalty payments within 45 days of
the end of each calendar quarter of:
1. Six percent (6%) of the first twenty million dollars
($20,000,000.00) of Sales by WMS per year.
2. Five percent (5%) for twenty million one dollars ($20,000,001.00)
to seventy million dollars ($70,000,000) of Sales inclusive by WMS per
year.
3. Four percent (4%) of all Sales over seventy million dollars
($70,000,000.00) of sales by WMS per year.
C. In any event, as a condition of maintaining the exclusivity of this
License in the Exclusive Territory , WMS must pay to Ovation minimum
royalties of no less than:
(1) fifty thousand dollars ($50,000.00) for the first year of the
production and distribution of Products by WMS;
(2) seventy-five thousand dollars ($75,000.00) for the second year
of the production and distribution of Products by WMS;
(3) one hundred thousand dollars ($100,000.00) for the third year of
the production and distribution of Products by WMS; and
(4) an amount equal to an increase of $25,000 per year for each year
subsequent to the royalty payable in the third year (to a maximum of
$200,000 per year).
In the event that WMS fails to pay the minimum royalties set forth in
clauses 1, 2, 3 and 4 above within 45 days of the end of each year period,
Ovation will have the option, exercisable during the ninety (90) day
period following the completion of the year with respect to which such
failure occurred, to convert the exclusive license agreement to a
non-exclusive agreement effective ninety (90) days following WMS receipt
of written notice thereof from Ovation.
G. Notwithstanding anything to the contrary contained in ARTICLE 6.B OR
THIS ARTICLE 8, the schedule for payment of Royalties shall be such that
each quarterly payment (if any) shall be due within 45 days of the close
of each calendar quarter commencing with the Commencement Date.
H. If WMS fails to make payments due on a timely basis (within forty-five
(45) days following the end of any quarterly period) more than two times
per year or fails to make a payment within 45
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days of written notice by Ovation of failure to pay, whether acting under
an exclusive or a non-exclusive licensing agreement pursuant hereto,
Ovation will have the right to terminate the License, exercisable during
the sixty (60) day period following the second such failure or such
written notice; provided however that it shall NOT be deemed a failure to
make payment hereunder if WMS tenders such payments as are materially
consistent with its quarterly reports, notwithstanding subsequent
adjustments and payments are thereafter made pursuant to Section 11
hereof. Such termination shall be effective ninety (90) days following WMS
receipt of written notice of such termination from Ovation.
9. INDEMNIFICATION.
A. During the Term of the Agreement and for two years following the
termination of the Agreement, WMS shall not dispute or challenge in any
way the validity of any of Ovation's Proprietary Rights.
B. WMS shall immediately notify Ovation of any infringement within the
Territory of the Proprietary Rights or of any case of unfair or illegal
competition that comes to WMS's knowledge. Ovation shall take the
necessary measures to protect the Proprietary Rights in the Patent
Countries. WMS shall assist and cooperate with Ovation if such measures
are taken by Ovation. The entire cost of such action shall be borne
exclusively by Ovation. If Ovation does not pursue such action, or if WMS
does not receive notice that Ovation will do so within 30 days of its
learning of the possible infringement, then WMS only recourse shall be the
right to proceed against the infringers at its own expense in Ovation's
name, in which event it shall be entitled to collect and retain all
damages awarded to it or Ovation in such action.
C. Ovation and WMS agree that during the Term of this Agreement, WMS may
request that Ovation take such steps as are appropriate to obtain patent
protection in any country or political subdivision in the Territory in
which WMS has a plan to sell the Products. If Ovation, in its sole
discretion, shall agree within 60 days to prosecute such a patent
application, WMS shall assist Ovation in making such applications, at
Ovation's cost, to the extent that such participation or assistance is
necessary or desirable. If Ovation shall not agree to prosecute the
requested patent, WMS may do so at its own expense, and Ovation shall
assist WMS in making such applications, to the extent that such
participation or assistance is necessary or desirable. If WMS shall bear
the costs of any such efforts, WMS shall receive a credit for all expenses
reasonably incurred in the prosecution and defense of the patent and any
Proprietary Rights against Royalties to due or to become due to Ovation
hereunder arising from Sales in the country(s) or political subdivision(s)
in which such prosecution or defense is effective.
D. Ovation will defend at its own expense, indemnify and hold harmless WMS
and its officers and agents, from and against all liability of any kind,
including damages, costs and expenses (including reasonable attorneys'
fees and accountants' fees) incurred with respect to any suits or claims
made or instituted against it or WMS by any third person claiming that the
Proprietary Rights used in the Products in the Patent Countries
constitutes an infringement of patent rights or other intellectual
property rights held by such third person, or alleging or claiming that
personal or financial injury has been suffered due to the design of the
Products (unless directly attributable to WMS' failure to manufacture the
Products in accordance with the design or specifications developed or
approved by Ovation), upon notice thereof from WMS. WMS may appoint its
own legal counsel to represent its interest in said suit at its own
expense, but such appointment shall not diminish the obligations of
Ovation.
10. APPROVALS OF OVATION'S PRODUCTS IN THE TERRITORY. All the various tests,
reports, applications and administrative works necessary to be conducted for
obtaining the registration and approval of the Products in all or any portion of
the Territory, including full UL and CSA, or other equivalent, approval, may be
performed and paid for by either party, and each shall permit the other to rely
on such approvals to the extent permitted by the issuing agency, PROVIDED
HOWEVER that if WMS shall obtain such approvals, then WMS shall be entitled to
and may take a credit for all costs reasonably
Restated License Agreement
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incurred in such process against any royalties then or later due Ovation
hereunder for Sales in the country or territories in which such approval is
effective. Ovation shall deliver to WMS, and WMS shall have the right to use,
all updated technology developed for any purpose by Ovation after initial
delivery of design and Specifications for the Products.
11. BOOKKEEPING; AUDITS
A. WMS shall maintain, on a current basis, customary business records
showing the manufacture and Sale of any Product. In any event, such
records shall be in sufficient detail to enable Ovation to verify the
calculation and payment of the Royalties. For purposes of this paragraph
A, "sufficient detail" shall mean that such records shall at a minimum
contain the number of units of Product sold (whether by WMS, its
Affiliates or any sub-licensee), and the resulting Sales. WMS shall
maintain such records for two (2) years following the sales of any Product
or the termination of the License.
B. During the License and for a period of two (2) years thereafter, WMS
agrees to permit Ovation's qualified representatives to have access no
more often than semi-annually (twice per year) each calendar year during
WMS's ordinary business hours to examine such records as are required to
be maintained by WMS, and to make extracts and copies thereof, for such
period of time as may be necessary, in the opinion of such representative,
to determine the correctness of any report or payment made under this
Agreement; provided, however, that in the event of a termination of the
License, Ovation's right to audit WMS's records shall terminate two (2)
years after such termination date. If the audit reveals a discrepancy in
Ovation's favor of five percent (5 %) or more, then the costs incurred by
Ovation in making such inspection shall be paid by WMS. Such accountant
shall maintain in confidence, and shall not disclose to Ovation, any
information concerning WMS or its operations or properties other than
information directly relating to the correctness of such reports and
payments. Information concerning WMS and its operations received by
Ovations from such audits shall be considered the confidential and
proprietary information of WMS, use and disclosure of which are strictly
prohibited except for the express purposes set forth in this Article 11
and in connection with any litigation between the parties with respect to
this Agreement.
12. CONFIDENTIALITY.
A. Both parties undertake to maintain the confidentiality with regard to
all procedures, manipulations and know-how in connection with the
manufacturing procedures of the Products, except and until such processes
are disclosed as part of any patent applications.
B. No part or whole of the technology and know-how acquired in the
execution of the work under this Agreement shall be subject to sale,
export or transfer by any means by WMS except as otherwise provided
herein.
C. The parties further agree to keep secret any procedures, manipulations
and technical know-how they might acquire during their mutual
collaboration.
D. WMS will not have the know-how and manufacturing procedures which are
covered by the present Agreement transferred to any third party, except as
defined hereinbelow in Paragraph 12E or as otherwise provided herein.
E. WMS may from time to time enter into one or more sub-licenses of the
rights granted hereunder, and/or contract with assemblers and
manufacturers to have the Products manufactured, provided that in each
such case WMS shall make good faith efforts to ensure that any such third
party agrees to maintain the information conveyed hereunder in accordance
with the provisions of this Agreement. WMS will not enter into any
sublicense or contract that will reduce payments that otherwise would be
payable to Ovation if WMS had directly made the sale of Products.
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13. DURATION. The initial term of this License during which WMS may sell the
Products hereunder, shall be for a period extending for five (5) years
commencing on the first day of the month immediately following the date that WMS
commences shipments of production (not prototype) Products (such time being the
"Commencement Date"). This Agreement shall be effective immediately upon
signing, but WMS shall have no right or obligation to sell the Products prior to
the Commencement Date.
14. TERMINATION.
A. The term of this Agreement shall be for an initial five (5) year term,
and continue from year to year thereafter, unless earlier terminated by
Ovation on six months written notice to WMS due to WMS' material breach or
failure to comply with any material provision hereof, which breach or
failure continues for a period of thirty (30) days after WMS' receipt from
Ovation of written notice specifying such failure or breach, unless WMS is
diligently proceeding to cure the same and continues to do so to
completion of the cure; or by WMS on six (6) months written notice to
Ovation at any time after this License has become non-exclusive in the
Exclusive Territory in accordance with its terms. The termination of this
Agreement shall not terminate any obligation to pay royalty payments if
such obligation was incurred prior to the effective date of such
termination.
B. Prior to December 31, 2005, WMS may terminate this Agreement on 30 day
prior written notice, and upon such termination, Ovation will issue WMS a
five-year warrant to purchase 30,000 shares of Ovation common stock at an
exercise price of $5.00 per share.
C. Upon the Termination of this Agreement, for whatever cause, WMS shall
immediately turn over to Ovation all blueprints, manufacturing documents
and drawings concerning the Products, upon completion of the manufacture
of all Products. Provided that the Products then conform to the
Specifications, or Ovation has approved all deviations as herein provided,
Ovation will be responsible for all technical support and warranty repairs
in the Territory after the effective date of any such termination.
Notwithstanding anything to the contrary contained in this License
explicitly or implicitly to the contrary, upon the expiration or
termination hereof for any reason, WMS may sell off existing inventories
of Products on a non-exclusive basis, for a period of one hundred eighty
(180) days, and thereafter unless Ovation shall elect to purchase all
remaining Products at WMS' cost, in all cases subject to all the other
terms and conditions hereof.
D. Termination of this Agreement shall constitute the automatic assignment
of all continuing sublicense agreements entered into by WMS under the
terms of this Agreement to Ovation as direct licensor.
15. TRIGGERING LICENSES. Upon each occasion that a Triggering License is
executed, Ovation shall be deemed to have offered a license to WMS (the "WMS
License") upon terms identical to the Triggering License except that:
(i) WMS shall have the right and option, but not the obligation, to
elect to sub-contract the manufacture and/or development of any and
all tangible items pursuant to the WMS License, and may grant a full
sub-license only to those entities which WMS or its successors or
assigns (i) hold a partnership interest or (ii) directly or
indirectly control, are controlled by, or are under common control
with, in lieu of all provisions relating to sub-license rights under
the Triggering License; and
(ii) WMS shall be obligated to make all royalty and other payments due
with respect to sales of any products, but shall not be obligated to
pay any engineering or other reimbursement costs due under the
Triggering License. Any and all advances against payments due from
WMS
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hereunder may, at WMS' option, be amortized over the longer of three
years or the period set forth in the Triggering License.
Promptly upon execution of any Triggering License, Ovation shall deliver to WMS
a certified copy thereof, and all intellectual property and all patent, patent
applications, studies, prototypes, mock-ups, drawings and similar materials,
whether tangible or intangible, to be provided under the Triggering License or
previously provided to the licensee under the Triggering License or any
affiliate thereof (the "Deliverables"). In each case, WMS shall have the right
to examine and test the Deliverables, and the option, but not the obligation, to
accept such license. This provision is intended to allow WMS full access to all
Ovation's technology, and to allow WMS or his licensees to sell all tangible
products based on Ovation technology made available to any party during the term
hereof; in all instances Ovation will execute and deliver to WMS such further
documents, instruments, assignments and other writings, and will do such further
acts, as WMS shall reasonably request to preserve and protect the rights
intended to be granted hereunder and to carry out to its satisfaction the
transactions contemplated by this Agreement.
16. ENTIRE AGREEMENT AND AMENDMENT. The terms and conditions herein contained
constitute the entire Agreement between the parties and amends the 1997 License
in its entirety and all previous communications, whether oral or written,
between the parties hereto with respect to the subject matters hereof. All
references to the 1997 License in any other document executed between the
parties or their predecessors in interest shall hereinafter be deemed to be
references to this agreement). This Agreement shall not be altered, modified or
supplemented except with the prior written approval of the parties hereto.
17. BINDING EFFECT. This Agreement shall be binding upon and shall inure to the
benefit of the parties, and their successors and assigns, and any successor to
all or substantially all of its assets or business to which this Agreement
relates; provided, however, that no assignment shall relieve the assigning party
of its obligations hereunder
18. NOTICES. All notices, requests, demands and other communications under this
Agreement or in connection therewith, shall be given to or made upon the
respective parties hereto as follows:
If to Ovation: to: Ovation Products Corporation
0 Xxxxxxxxx Xxxxx
Xxxxxx, XX 00000; and
With a copy to: _____________________
_____________________
_____________________
_____________________
If to WMS, to: Xxxxxxx X. Xxxxxxx
WMS Family I LLC
000 Xxxxxxxxxx'x Xxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
With a copy to: Xxxx X. Xxxxxxx XX, Esq.
Xxxxxxx Xxxxx LLP
Two Xxxxxxx Xxxx
Xxxxxx, XX 00000
or such other addresses as any of the parties hereto may specify by notice to
the other in writing. All notices and other communications required in the
performance of this Agreement shall be deemed fully informed and valid if made
in writing by registered mail.
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19. APPLICABLE LAW AND JURISDICTION. This Agreement is subject to the laws of
the State of New Hampshire and any litigation resulting from its interpretation
or execution shall be submitted to the competent courts of said State of New
Hampshire.
20. INDEPENDENT CONTRACTORS. The relationship of WMS to Ovation shall be that of
independent contractors, and neither the making nor performance of this
Agreement shall be construed in any manner as establishing a joint venture or
partnership or the like. Neither WMS or Ovation, nor the employees or either are
the legal representatives of the other for any purpose and have no power or
authority to represent, act for, bind or commit the other.
21. ADVICE OF COUNSEL. EACH PARTY ACKNOWLEDGES THAT, IN EXECUTING THIS
AGREEMENT, IT HAS HAD THE OPPORTUNITY TO SEEK THE ADVICE OF INDEPENDENT LEGAL
COUNSEL, AND HAS READ AND UNDERSTOOD ALL OF THE TERMS AND PROVISIONS OF THIS
AGREEMENT. THIS AGREEMENT SHALL NOT BE CONSTRUED AGAINST ANY PARTY BY REASON OF
THE DRAFTING OR PREPARATION HEREOF.
IN WITNESS WHEREOF, the parties have executed this Agreement under seal as
of the ____ day of June, 2004, each by its duly authorized representative.
Ovation Products Corporation WMS Family I LLC
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------- ---------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxx
Title: President and COO Title: Manager
Restated License Agreement
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