EXHIBIT 10.20
OEM PURCHASE
AND
TECHNOLOGY LICENSE
AGREEMENT
This Agreement dated as of February 19, 1997, is by and between XxXxxx
Corporation ("XxXxxx"), a Delaware corporation with its principal executive
offices at 000 Xxxxxxxx Xxxxx Xxxx, Xxxxxxxx Xxxxx, Xxx Xxxx 00000, and Xxxxx
Technical Enterprises ("Xxxxx"), a California corporation with its principal
executive offices at 0000 Xxxxxxx Xxxxx, Xxx Xxxx, Xxxxxxxxxx 00000.
Certain capitalized terms used and not otherwise defined on first usage
herein are defined in Section 12 hereof.
XxXxxx and Xxxxx hereby agree as follows:
1. PURCHASE AND SALE OF LICENSED PRODUCTS.
(A) PURCHASE ORDERS.
Xxxxx will provide XxXxxx with non-binding quarterly forecasts, on a
rolling basis, of its best estimates of its purchases for Licensed Products for
the following four calendar quarters. On a quarterly basis, Xxxxx will place
orders for Licensed Products for the following quarter using its standard form
of purchase order, specifying the desired delivery destination and date
(typically at least 90 days later). XxXxxx will use commercially reasonable
efforts to fill all Xxxxx purchase orders, including those calling for delivery
within 90 days and/or in excess of Xxxxx'x forecasted purchases for such
quarter. The terms and conditions of sale set forth in this Agreement will
prevail over and control any additional or different terms set forth in any
Xxxxx purchase order or XxXxxx acceptance and/or any course of dealing or usage
of trade.
(B) DELIVERIES. In addition to Licensed Products purchased by Xxxxx under
separate purchase orders, Xxxxx will purchase and XxXxxx will sell Licensed
Products to Xxxxx as follows:
(i) XxXxxx will deliver two Chip Sets to Xxxxx, without charge, on
or before March 17, 1997. Such Chip Sets will have the appropriate physical
configuration, but may not be functional.
(ii) XxXxxx will deliver five prototype Chip Sets to Xxxxx as soon
as is reasonably practicable following the date hereof, which delivery is
expected to occur around April 18, 1997, but in any event will occur by
July 10, 1997.
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Such Chip Sets will be partially tested and may not meet all of the
Specifications.
(iii) XxXxxx will deliver 50 fully functional production Chip Sets to
Xxxxx on or before June 27, 1997.
(C) TESTING. XxXxxx will test production Licensed Products shipped to
Xxxxx using the same test procedures as XxXxxx uses to test Licensed Products
used by XxXxxx internally or in products sold to other customers, with such
modifications as XxXxxx and Xxxxx may agree upon in order to meet the
requirements of Xxxxx'x applications.
(D) DELIVERY DELAYS. XxXxxx will use commercially reasonable efforts to
deliver in a timely manner the Licensed Products called for by Xxxxx'x purchase
orders. XxXxxx will give Xxxxx prompt notice of any anticipated delivery delays
or anticipated unavailability or shortage of Licensed Products. In addition, in
the event that (because of inability to obtain components or other supplies from
third parties, or otherwise) XxXxxx determines to discontinue production of any
Licensed Product, XxXxxx will give Xxxxx prompt notice of such determination (as
promptly as practicable, preferably at least one year, but in any case at least
six months, before the effective date of such discontinuance), and will use
commercially reasonable efforts to fill all "stock-up" orders as Xxxxx may place
for such Licensed Product. In the event of any discontinuance or other
unavailability of any Licensed Product, XxXxxx will inform Xxxxx of any
potential substitute products available from XxXxxx, and will provide
information and consulting to Xxxxx with respect to the use of such products on
terms to be mutually agreed upon.
2. XXXXX MANUFACTURING RIGHTS. In the event that XxXxxx discontinues any
Licensed Product or fails to deliver Licensed Products ordered by Xxxxx (and not
in excess of Xxxxx'x forecasted purchases for the relevant quarter) within (i)
with respect to any delivery due in calendar year 1997, 120 days, or (ii) with
respect to any delivery due after calendar year 1997, 90 days, after the due
date for delivery thereof, then Xxxxx will thereafter have an irrevocable,
perpetual, non-royalty-bearing, non-transferable license to use and sublicense
others (subject to each such sublicensee's agreeing to be bound by the
provisions of the Confidentiality Agreement) to use the XxXxxx Technology and
any Improvements, in each case to produce Licensed Products solely for such uses
for which Xxxxx would be entitled hereunder to use Licensed Products purchased
from XxXxxx. (Xxxxx understands and acknowledges that such license does not
include any license in respect of any third-party intellectual properties or
other proprietary rights, which may be required in order to produce Licensed
Products.) Such license will be Xxxxx'x sole remedy in respect of any failure
to deliver Licensed Products.
During any period in which such license may be in effect, upon Xxxxx'x
request XxXxxx will provide to Xxxxx copies of all readily available information
in
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LeCroy's possession or control that may be helpful to Xxxxx and/or any of its
sublicensees in understanding and practicing the XxXxxx Technology and any
Improvements pursuant to such license or any sublicense thereof. All
information so provided to Xxxxx or any such sublicensee will be covered by and
subject to the Confidentiality Agreement, and XxXxxx will incur no liability to
Xxxxx or any such sublicensee or any other person by reason of its providing any
such information.
3. PRICING AND PAYMENT. The prices at which XxXxxx will sell Licensed
Products to Xxxxx will be 250% of LeCroy's cost-of-goods-sold in respect of such
products, as determined in accordance with the following sentence. For purposes
of this Agreement, LeCroy's cost-of-goods-sold in respect of any Licensed
Product will consist of its direct materials and direct labor costs, including
112% of the costs of any direct materials and/or direct labor obtained from
third parties, but in no event including any costs of research-and-development
or other overhead costs. Such prices are FOB origin, and are exclusive of any
applicable duties, taxes, etc. (other than any tax imposed in respect of
LeCroy's income), which will be Xxxxx'x responsibility. XxXxxx will provide
Xxxxx with its best estimates of prices for Licensed Products within ten
business days following the date of execution of this Agreement, and from time
to time will update such estimates as better or more recent information becomes
available.
The price to Xxxxx for a single-channel, two gigasample/second Chip Set
with four megabytes of memory is anticipated by the parties to be about $2,750,
but in any event will not exceed $3,000 unless otherwise agreed by the parties.
In the event that XxXxxx makes any functional improvements to Licensed Products
that cause a material change in LeCroy's cost-of-goods-sold of such products,
XxXxxx will make such improved Licensed Products available to Xxxxx under this
Agreement, but such $3,000/Chip Set limitation will not apply, and XxXxxx and
Xxxxx will negotiate in good faith to determine appropriate pricing for the
improved Licensed Products. In any event, XxXxxx and Xxxxx will meet at least
once a year during the term of this Agreement to discuss possible arrangements
for further exchange of technology, through licensing or purchase and/or other
technology-sharing arrangements, but neither party will be obligated to enter
into any such arrangement not acceptable to it, in its discretion.
XxXxxx will keep complete and accurate records in sufficient detail to
enable its cost-of-goods-sold of Licensed Products sold to Xxxxx by it hereunder
to be determined, and at Xxxxx'x request, from time to time will provide Xxxxx
with information relevant to such determination. Xxxxx will be permitted, at
its own expense and upon reasonable prior notice, to have such determination
verified by an independent certified public accounting firm of its selection
(but not more than once in any twelve-month period). XxXxxx will make available
to such accounting firm (subject to reasonable confidentiality restrictions),
during normal business hours at its place(s) of business where such records are
customarily kept, all records pertinent to such verification.
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Invoices for Licensed Products will be issued upon shipment to Xxxxx. All
invoices are due and payable 30 days from invoice date unless otherwise agreed
by the parties.
4. ADDITIONAL PAYMENTS. In addition to paying for Licensed Products as
described above, Xxxxx will make the following non-refundable payments to
XxXxxx:
(a) In consideration of LeCroy's execution of this Agreement, Xxxxx will
pay XxXxxx $1,000,000 upon execution of this Agreement and another $1,000,000
within 30 days after XxXxxx delivers to Xxxxx the prototypes called for by
Section 1(b)(ii) hereof.
(b) Within 30 days after XxXxxx delivers 50 fully functional production
Chip Sets to Xxxxx pursuant to Section 1(b)(iii) hereof, Xxxxx will pay $500,000
to XxXxxx in payment for such Chip Sets and as a non-refundable advance against
Xxxxx'x future purchases of Licensed Products from XxXxxx.
5. EXCLUSIVITY; XXXXX'X FIELD OF USE.
(A) EXCLUSIVITY. For so long as this Agreement is in effect, XxXxxx will
not use Licensed Products in Xxxxx'x Field of Use, or sell them to any person
(other than Xxxxx) for use in Xxxxx'x Field of Use, but with respect to the
calendar year 1998 and each subsequent calendar year, if in any such calendar
year Xxxxx fails to purchase at least $1,000,000 worth of Licensed Products from
XxXxxx (except to the extent that such failure is caused by LeCroy's failure to
deliver Licensed Products ordered by Xxxxx and not in excess of Xxxxx'x
forecasted purchases), then these exclusivity limitations will terminate in
their entirety.
(B) XXXXX'X FIELD OF USE. Xxxxx will not, and will not permit any of its
sublicensees, subsidiaries, or other affiliates, (i) to use any Licensed Product
except for its own internal use in Xxxxx'x Field of Use, (ii) except pursuant to
Section 2 ("Xxxxx Manufacturing Rights,,) hereof, to reverse-engineer or copy
any Licensed Product, or (iii) to sell any Licensed Product to any other person
except as part of, or for use in repairing or servicing, products incorporating
Licensed Products.
(C) USE OF XXXXXX NAME. Xxxxx and its sublicensees will include an
acknowledgment (in a form to be agreed to by Xxxxx and XxXxxx) of use of
LeCroy's technology and products in the product literature and packaging used in
connection with Xxxxx'x products incorporating Licensed Products. Neither Xxxxx
nor any of its sublicensees or any of their respective customers will have any
rights in or to LeCroy's names or trademarks, and any use thereof by Xxxxx
and/or its sublicensees and/or their respective customers will inure to the
benefit of XxXxxx.
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(D) EQUITABLE RELIEF. Each of the parties hereby (and any sublicensee of
Xxxxx hereunder, by its acceptance of such sublicense) acknowledges that any
breach by it of its obligations under this Section 5 would cause substantial and
irreparable damage to the other party, and that money damages would be an
inadequate remedy therefor, and accordingly, acknowledges and agrees that the
other party will be entitled to an injunction, specific performance, and/or
other equitable relief to prevent the breach of such obligations.
6. INFORMATION; CONSULTING. Promptly following execution of this
Agreement, and from time to time thereafter for so long as this Agreement
continues in effect, XxXxxx will provide to Xxxxx copies of all readily
available information in LeCroy's possession or control that may be helpful to
Xxxxx to support Xxxxx'x design program or to use Licensed Products in Xxxxx'x
Field of Use, including block diagrams, schematics, test procedures and results,
parts lists, physical dimensions, pinouts, timing diagrams, heat dissipation
information, cooling requirements, and salient electrical characteristics, and
upon Xxxxx'x request, will provide supplemental performance data reasonably
necessary for Xxxxx'x applications.
In addition, for the remainder of 1997, XxXxxx at Xxxxx'x request will
provide Xxxxx with up to eight hours per week of engineering consulting services
to assist Xxxxx in using the Licensed Products in Xxxxx'x Field of Use. Xxxxx
will promptly reimburse XxXxxx for reasonable out-of-pocket expenses (including
travel and lodging, if applicable) incurred in connection with such services,
against appropriate documentation, but will not be obligated to pay any further
compensation for such consulting services. All information so provided to Xxxxx
(including in connection with such consulting services) will be covered by and
subject to the Confidentiality Agreement, and XxXxxx will incur no liability to
Xxxxx or any other person by reason of its providing any such information and/or
consulting services.
7. INTELLECTUAL PROPERTIES. XxXxxx will own all rights, titles, and
interests in and to the XxXxxx Technology and any Improvements, and except as
specifically provided in Section 2 ("Xxxxx Manufacturing Rights") hereof,
neither Xxxxx nor any of its sublicensees will have any rights or license in
respect of the XxXxxx Technology or the Improvements. Xxxxx will cooperate and
cause its sublicensees to cooperate with XxXxxx and will execute and deliver and
cause its sublicensees to execute and deliver such documents (including patent
applications) and/or take such other actions as XxXxxx may reasonably request in
order to confirm or perfect such rights, titles, and interests, all at LeCroy's
expense. The parties may decide to pursue joint development activities, and if
so, will first negotiate in good faith to determine their respective
intellectual property rights in respect of any resulting joint developments.
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8. REPRESENTATIONS. Each of XxXxxx and Xxxxx represents and warrants to
the other as follow:
(a) It is a corporation duly organized and validly existing under the laws
of the State of Delaware, in the case of XxXxxx, or California, in the case of
Xxxxx, and has full power to execute, deliver, and perform its obligations under
this Agreement. It has duly taken all corporate action necessary on its part to
enable it to execute and deliver this Agreement and perform its obligations
hereunder.
(b) No governmental or other third-party consent or approval not already
obtained and in effect is required in connection with its execution, delivery,
and performance of its obligations under this Agreement.
(c) This Agreement is its binding obligation, enforceable in accordance
with its terms. It has the unencumbered right to enter into this Agreement and
to fulfill its duties hereunder. It is not, and will not become, bound by any
agreement in conflict herewith.
(d) It will comply with all applicable laws and other legal requirements
(including export control laws) in connection with the transactions contemplated
by this Agreement.
9. XXXXXX WARRANTIES. XxXxxx warrants that Licensed Products sold by
XxXxxx to Xxxxx hereunder will be free from defects in material and workmanship
and will conform to the Specifications for a period of 18 months from the date
of shipment by XxXxxx. XxXxxx will honor this warranty by, at its option,
either repairing or replacing defective or nonconforming Licensed Products or
refunding the price paid by Xxxxx to XxXxxx for such products. This warranty is
contingent upon proper use of Licensed Products and does not apply to Licensed
Products that have been modified without LeCroy's approval or which have been
subjected to unusual and extreme physical or electrical stress, accident,
neglect, or misuse.
10. NO IMPLIED WARRANTIES; LIMITATIONS OF LIABILITY. EXCEPT FOR THE
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EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTIONS 8 AND 9 HEREOF,
EACH OF XXXXXX AND XXXXX DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES,
EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER XXXXXX NOR XXXXX
WILL BE LIABLE FOR LOSS OF PROFITS OR OTHER INCIDENTAL, CONSEQUENTIAL, INDIRECT,
SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER SIMILAR DAMAGES ARISING UNDER OR IN
CONNECTION WITH THIS AGREEMENT, WHETHER GROUNDED IN CONTRACT OR TORT (INCLUDING
NEGLIGENCE AND STRICT
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LIABILITY) OR OTHERWISE. IN NO EVENT WILL LECROY'S
LIABILITY (OTHER THAN PURSUANT TO SECTION 11(B) HEREOF) EXCEED THE AMOUNT PAID
TO XXXXXX FOR THE LICENSED PRODUCT GIVING RISE TO SUCH LIABILITY.
11. INDEMNIFICATION.
(a) Subject to the limitations set forth herein, each of the parties will
indemnify the other party from and against any and all claims, suits, damages,
liabilities, costs, and expenses, including court costs and reasonable
attorneys' fees, arising out of any breach of this Agreement by the indemnifying
party.
(b) At its expense, XxXxxx will settle or defend and pay all damages
(including incidental and consequential damages) and costs finally awarded in
any action brought against Xxxxx, to the extent that (i) the action is based on
a claim that the XxXxxx Technology infringes any patent, mask work, copyright,
trade secret, or other intellectual property or similar proprietary rights of
any third party, and (ii) such infringement or alleged infringement does not
arise out of a combination of the XxXxxx Technology or any Improvements with, or
the addition of the XxXxxx Technology or any Improvements to, technologies,
components, or products not supplied by XxXxxx, or from any modification of the
XxXxxx Technology or any Improvements.
(c) At its expense, Xxxxx will settle or defend and pay all damages
(including incidental and consequential damages) and costs finally awarded in
any action brought against XxXxxx based on a claim of infringement of any
patent, mask work, copyright, trade secret, or other intellectual property or
similar proprietary rights of any third party, but only to the extent that:
(i) such infringement or alleged infringement is caused by a
combination of the XxXxxx Technology or any Improvements with, or the addition
by Xxxxx or any of its sublicensees of the XxXxxx Technology or any Improvements
to, technologies, components, or products not supplied by XxXxxx, or from any
modification by Xxxxx or any of its sublicensees of the XxXxxx Technology or any
Improvements; provided, that such infringement or alleged infringement would not
have occurred but for such combination, addition, or modification by Xxxxx of
such sublicensee, and further provided, that XxXxxx will have no right to
indemnification by Xxxxx, and will remain responsible to indemnify Xxxxx under
Section 11(b) hereof, to the extent that such infringement or alleged
infringement is caused by the XxXxxx Technology or any Improvements standing
alone; and/or
(ii) such claim is that by entering into and/or performing its
obligations under this Agreement (including by granting the license under
Section 2 hereof and/or rendering consulting services to Xxxxx), XxXxxx has
induced, aided,
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abetted, or contributed to such infringement or alleged
infringement, provided, that XxXxxx will have no right to indemnification by
Xxxxx, and will remain responsible to indemnify Xxxxx under Section 11(b)
hereof, to the extent that such infringement or alleged infringement is caused
by the XxXxxx Technology or any Improvements standing alone.
(d) In the event that a party entitled to indemnification hereunder (an
"Indemnified Party") desires to make a claim for indemnification against the
other party (the "Indemnifying Party") in connection with any third-party
litigation, arbitration, action, suit, proceeding, claim or demand at any time
instituted or made upon it for which it may seek indemnification hereunder (a
"Third-Party Claim"), the Indemnified Party will notify the Indemnifying Party
of such Third-Party Claim and of its claims for indemnification with respect
thereto, provided, that failure to give such notice will not relieve the
Indemnifying Party of its indemnification obligations under this Section 11
except to the extent, if at all, that the Indemnifying Party is actually
prejudiced thereby. Upon receipt of such notice, the Indemnifying Party will be
entitled to assume the defense of such Third-Party Claim, and in the case of
such an assumption, the Indemnifying Party will have the authority to negotiate,
compromise, and settle such Third-Party Claim, provided, that the Indemnifying
Party will not agree to any settlement of such Third-Party Claim that does not
include an unconditional release of all liability of the Indemnified Party with
respect to such Third-Party Claim. The Indemnified Party will retain the right
to employ its own counsel and to participate in the defense of any Third-Party
Claim, the defense of which has been assumed by the Indemnifying Party
hereunder, but the Indemnified Party will bear and be solely responsible for its
own costs and expenses in connection with such participation unless the
representation of the Indemnifying Party and the Indemnified Party by the same
counsel would be inappropriate because of an actual and substantial conflict of
interest between such persons.
12. CERTAIN DEFINITIONS. For purposes of this Agreement:
"Confidentiality Agreement" means the confidentiality letter agreement
between XxXxxx and Xxxxx dated as of October 9, 1996.
"Xxxxx'x Field of Use" means use of Licensed Products only in dedicated
instruments for mass storage devices and their components, including disk drive
certification, optical and magnetic media certification, testing of optical and
magnetic heads, servo-track writing, and certification of tape drives (i.e.,
instruments designed and sold solely for such purposes, and which are not
readily usable for other purposes).
"Improvements,, means any inventions, modifications, improvements, or
developments with respect to Licensed Products, regardless of whether
patentable,
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relating to or based on the XxXxxx Technology, whether developed by
XxXxxx and/or Xxxxx or otherwise.
"XxXxxx Technology,, means all intellectual properties (regardless of
whether patented, patentable, subject to legal protection as mask works, or
otherwise), technologies, trade secrets, know-how, and other proprietary
information of XxXxxx that is incorporated or embodied in, and/or used in
producing, any Licensed Product.
"Licensed Product" means any of the following components (including, if
Xxxxx so requests, "depopulated" versions of such components) and/or improved or
substituted versions of such components (other than "new generation"
improvements resulting in substantially increased functionality) that may be
available from XxXxxx from time to time, and "Licensed Products" means any two
or more of such components. A "Chip Set" means items 1 through 4 below.
1. HFE428 front end multi-chip module incorporating MFE437 custom
integrated circuit in combination with discrete components.
2. MSY435 and HSY425 "switch yard" multi-chip module incorporating
four MSY435 integrated circuits.
3. HAM421 multi-chip module containing four MAD422 500-
megasamples/second analog-to-digital converters and two MSH432 dual sample-
and-hold integrated circuits plus various discrete components.
4. HMM434 acquisition memory multi-chip module including four MAM424
memory modules.
"Person" (regardless of whether capitalized) means any natural person,
entity, or association, including without limitation any corporation,
partnership, limited liability company, government (or agency or subdivision
thereof), trust, joint venture, or proprietorship.
"Sell," "sold," "sale," and "sales" (regardless of whether capitalized),
when used with reference to sales of Licensed Products by XxXxxx or Xxxxx to
other persons, refer also to selling, licensing as licensor, leasing as lessor,
or otherwise transferring or disposing of Licensed Products.
"Specifications" means the specifications for Licensed Products set forth
in the documentation delivered by XxXxxx to Xxxxx and captioned as follows. From
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time to time XxXxxx will update the Specifications as better or more recent
information becomes available.
XxXxxx MFE415 user doc (January 20, 1997).
XxXxxx MFE437 Rev A (January 21, 1997).
Philips OM5180X Device Specification (October 1995).
Philips OM5180X - MAD 422, 2nd redesign (January 15, 1997).
XxXxxx MSH432 Preliminary (November 22, 1996).
XxXxxx MSY435 Preliminary rev A characterization (February 3, 1997, last
modification).
XxXxxx MSY Preliminary Data (November 6, 1996, last modification).
13. NOTICES. All notices, requests, payments, instructions, or other
documents to be given hereunder will be in writing or by written
telecommunication, and will be deemed to have been duly given if (i) delivered
personally (effective upon delivery), (ii) mailed by registered or certified
mail, return receipt requested, postage prepaid (effective five business days
after dispatch), (iii) sent by a reputable, established courier service that
guarantees next business day delivery (effective the next business day), or (iv)
sent by telecopier followed within 24 hours by confirmation by one of the
foregoing methods (effective upon receipt of the telecopy in complete, readable
form), addressed to the receiving party at its address set forth in the first
paragraph of this Agreement (or to such other address as the receiving party may
have furnished to the sending party for this purpose).
14. CAPTIONS. The caption of this Agreement and those of the sections and
subsections hereof are for reference only and will not affect the interpretation
or construction of this Agreement.
15. CONSTRUCTION. The language used in this Agreement is the language
chosen by the parties to express their mutual intent, and no rule of strict
construction will be applied against either party.
16. WAIVERS; AMENDMENTS; TERMINATION. No waiver of any breach or default
hereunder will be valid unless in a writing signed by the waiving party. No
failure or other delay by any party exercising any right, power, or privilege
hereunder will be or operate as a waiver thereof, nor will any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power, or privilege. This Agreement may be amended and/or
terminated only by a writing signed (in counterparts or otherwise) by both
parties. The provisions of Sections 5 ("Exclusivity; Xxxxx'x Field of Use"), 7
("Intellectual Properties"), 8 ("Representations"), 9 ("XxXxxx Warranties"), 10
("No Implied Warranties; Limitations of Liability"), 11 ("Indemnification"), and
12-23 (various "boilerplate" provisions) will survive any termination of this
Agreement, as will the
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parties' respective rights and obligations in respect of any breach of this
Agreement occurring before such termination.
17. NON-SOLICITATION. The parties agree for so long as this Agreement is
in effect, and for a period of one year thereafter, neither party will solicit
or hire engineering or technical personnel (or former personnel) of the other
party.
18. ENTIRE AGREEMENT. This Agreement, together with the Confidentiality
Agreement (which will survive both the execution and any termination of this
Agreement and will continue to cover all information exchanged by the parties in
connection with the transactions contemplated by this Agreement), constitutes
the entire Agreement between the parties with respect to the subject matter
hereof and supersedes and terminates all prior agreements, arrangements,
understandings and communications, whether oral or written, between them,
including without limitation their Memorandum of Understanding dated as of
February 10, 1997.
19. RELATIONSHIP OF PARTIES. Nothing contained in this Agreement will
create a joint venture, partnership, agency, or similar endeavor or relationship
between the parties. Each party will act solely as an independent contractor
and neither party will have or hold itself out as having any right, power, or
authority to bind or act on behalf of the other.
20. COUNTERPARTS. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered will be an
original, but all of which together will constitute one and the same instrument.
In pleading or proving this Agreement, it will not be necessary to produce or
account for more than one such counterpart.
21. NO ASSIGNMENT OR THIRD-PARTY BENEFICIARIES, ETC. This Agreement will
bind and inure to the benefit of the parties and their respective successors and
permitted assigns, and will not confer any rights or remedies on any other
person. Neither party may assign its rights or delegate its obligations
hereunder without the written consent of the other party, and any attempt to do
so will be void and will be a material breach of this Agreement entitling the
other party, in addition to any other remedies to which it may be entitled, to
terminate this Agreement. A merger or consolidation involving either party
hereto (other than a merger or consolidation of a party solely with one or more
of its wholly owned subsidiaries) will be deemed to be an assignment for
purposes of this section.
22. GOVERNING LAW. This Agreement will be governed by and interpreted and
construed in accordance with the internal laws of the State of Delaware (without
reference to principles of conflicts or choice of laws).
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23. PRESS RELEASE. Promptly following the execution of this Agreement,
XxXxxx and Xxxxx will cooperate to create and issue one or more mutually
acceptable press releases with respect to this Agreement and the transactions
contemplated hereby.
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IN WITNESS WHEREOF, each of XxXxxx and Xxxxx has executed and delivered
this Agreement as of the date first above written.
XXXXXX CORPORATION XXXXX TECHNICAL
ENTERPRISES
By /s/ Xxxx P. Henckels By /s/ Xxxxx Xxxxx
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Xxxx P. Henckels Xxxxx Xxxxx
President and President and
Chief Executive Officer Chief Executive Officer
