COMMERCIAL SUPPLY AGREEMENT
THIS
COMMERCIAL SUPPLY AGREEMENT (this “Agreement”) is made and entered into as of
the 23nd day of May, 2007 (the “Effective Date”), by and between
XX.Xxxxxxx LCD Co., Ltd. (“LPL”), a corporation organized under
the laws of the Republic of Korea with a place of business at 533, Hogae-dong,
Dongan-gu, Anyang-shi, Gyongki-do 431-080, Republic of Korea.; and
Universal Display Corporation (“Universal Display”), a
Pennsylvania corporation, with its principal place of business at 000 Xxxxxxxx
Xxxx., Xxxxx, Xxx Xxxxxx 00000, X.X.X.
BACKGROUND
WHEREAS,
Universal Display makes and sells certain materials for use in organic light
emitting devices; and
WHEREAS,
LPL desires to purchase these materials from Universal Display on the terms
and
conditions set forth herein.
NOW,
THEREFORE, intending to be legally bound, LPL and Universal Display agree as
follows:
Article
1 Terms
of Sale; Orders and Forecasts
1.1 General. Universal
Display will sell to LPL, and LPL will purchase from Universal Display, such
of
the OLED materials currently offered for commercial sale by Universal Display
and specified on Exhibit A hereto (the “Product(s)”) as LPL may order from time
to time. Exhibit A shall be updated by the parties from time to time
as LPL desires other OLED materials that Universal Display is offering for
commercial sale, or as Universal Display ceases offering to sell certain of
the
OLED materials currently being sold to LPL hereunder. Universal
Display shall provide LPL with at least six (6) months’ prior written notice of
its intention to discontinue offering for commercial sale any OLED material
currently being sold to LPL hereunder.
1.2 No
Additional Terms. Unless otherwise expressly agreed to in writing,
Universal Display’s sale and LPL’s purchase of all Products hereunder shall be
solely on the terms and conditions set forth herein. Each party
accepts these terms and conditions and no inconsistent or additional terms
or
conditions of any purchase order, acceptance, shipping instructions or other
document submitted by either party shall apply other than those specified in
Section 1.3 below. All such other terms and conditions are hereby
rejected and no separate notice of such rejection need be given by either
party.
1.3 Purchase
Orders. LPL shall place written orders with Universal Display for the
Products (“Orders”) at least four (4) months in advance of the requested
shipment date. All Orders shall include (a) the date of the Order,
(b) the identity and quantity of each Product ordered, (c) the requested date
of
shipment and (d) the shipping destination. Promptly following the
Effective Date, the parties shall agree upon LPL’s Order for the four (4) month
period immediately thereafter.
1.4 Forecasts. LPL
shall provide Universal Display, in writing, with rolling forecasts, on a
calendar quarterly basis by the end of each quarter, of its expected
requirements for each Product during the next twelve (12)
months. These forecasts shall be non-binding, except that Universal
Display shall not be obligated to fill (though it shall use commercially
reasonable efforts to fill) that portion of any Order for a Product which
exceeds LPL’s twelve (12) month advance forecasted requirement for such Product
by more than 25%.
1.5 Title
and
Risk of Loss. All Products shall be sold [The confidential material
contained herein has been omitted and has been separately filed with the
Commission.], Universal Display’s Product shipment facility in New Jersey,
U.S.A. LPL shall be responsible for all associated shipping and
insurance charges, brokers’ fees and the like, and LPL will designate its
preferred freight forwarder in the United States to handle all Product
shipments. In the absence of such designation, Universal Display will
arrange for a freight forwarder to handle the shipment on LPL’s behalf and at
LPL’s expense.
1.6 Shipping
Dates. Universal Display will use commercially reasonable efforts to
meet LPL’s requests for specific shipment dates. Partial deliveries
shall be accepted and paid for by LPL on the terms set forth
herein.
Article
2 Inspection
and Acceptance
2.1 Qualification
Testing by Universal Display. Universal Display will conduct
qualification testing of each production lot of Product before shipping any
Product from such lot to LPL. Such qualification testing shall be
designed to ensure that the Product conforms to its corresponding specifications
as attached hereto or otherwise agreed to by the parties in writing (the
“Product Specifications”). Universal Display will not ship Product to
LPL from any lot that does not meet the applicable Product
Specifications. With each Product shipment, Universal Display will
submit to LPL a Certificate of Analysis indicating that such lot conforms to
the
applicable Product Specifications.
2.2 Acceptance
Testing of Samples by LPL.
2.2.1 Universal
Display will provide LPL with a [The confidential material contained herein
has
been omitted and has been separately filed with the Commission.] test sample
from the production lot(s) from which the Product will be supplied; provided,
however, that no such sample shall be sent from production lot(s) for which
LPL
has already received a test sample. This test sample shall be sent to
LPL as far in advance of the requested shipping date as is reasonably
practicable, up to one (1) month in advance. The test sample shall be
in addition to the ordered quantity of Product [The confidential material
contained herein has been omitted and has been separately filed with the
Commission.].
2.2.2 Within
two (2) weeks following its receipt of a test sample as specified above, LPL
will conduct an acceptance test to confirm that the sample conforms to its
corresponding Product Specifications. At the conclusion of such two
(2) week period, LPL will inform Universal Display in writing as to whether
or
not the test sample passed this acceptance test. Unless otherwise
expressly agreed to by the parties, Universal Display shall endeavor to fill
all
Orders using only Product from production lots for which LPL has informed
Universal Display in writing that the test sample has passed the acceptance
test, such written notice not to be unreasonably withheld or
delayed. LPL understands and acknowledges that any delay in so
informing Universal Display may result in a corresponding delay in the shipping
date, since shipments may not be initiated until up to one (1) week after
Universal Display receives LPL’s written notice of acceptance. LPL
also understands and acknowledges that Orders may be filled in advance of
receiving such written notice of acceptance if Universal Display deems it
reasonably necessary to initiate shipments in order to meet LPL’s requested
shipping dates.
2.2.3 If
the
test sample does not pass LPL’s acceptance test, the parties shall promptly and
in good faith discuss and attempt to determine why this has occurred and to
implement procedures to prevent its recurrence. At the same time,
Universal Display will in good faith endeavor to fill the Order in a timely
manner by shipping to LPL Product from one or more production lots for which
the
test samples have already passed LPL’s acceptance test. Should there
be insufficient material from such production lots for Universal Display to
fill
the Order, Universal Display will promptly provide LPL with a test sample from
one or more other production lots for which no test samples have previously
been
sent and the process above shall be repeated until sufficient material to fill
the Order has been identified. Should this prevent Universal Display
from filling the Order by the requested shipping date or within a reasonable
period of time thereafter (said period not to exceed sixty (60) days), LPL
shall
have the right to cancel the Order and exercise such other rights or remedies
as
may be available to it, subject to the express limitations set forth in this
Agreement.
2.3 Shipping
Inspection by Universal Display. Universal Display will conduct a
final visual inspection of all Products before shipping such Products to
LPL. Universal Display will not ship to LPL any Product that does not
pass such visual inspection.
2.4 Receiving
Inspection by LPL. Upon receipt of each Product shipment, LPL will
inspect such shipment for any shortage or other defects. LPL will
provide Universal Display with written notice of any shortage or defect promptly
following LPL’s receipt of the shipment, which notice shall specify in
reasonable detail the manner in which the shipment is short or
defective. In the absence of Universal Display receiving written
notification to the contrary within thirty (30) days following LPL’s receipt of
the shipment, LPL shall be deemed to have accepted the shipment without
reservation on the date of receipt. LPL’s sole remedy and Universal
Display’s entire responsibility with respect to any Product shipment that is
identified by LPL and confirmed by Universal Display to be short or otherwise
defective shall be limited to Universal Display promptly making up the shortage
or replacing the defective Product, all at no additional cost to LPL except
where the shortage or defect arises through no fault of Universal Display after
risk of loss for the Product shipment has passed to LPL. In the event
that the shortage or defect is determined to have arisen after risk of loss
has
passed to LPL, Universal Display will use commercially reasonable efforts to
assist LPL in making any claims against the carrier with respect
thereto.
2.5 Other
Procedures. The parties may agree on more detailed inspection,
certification and testing procedures in order to supplement the foregoing
provisions of this Article 2. The parties may also agree to eliminate
or curtail the procedure regarding the shipment and acceptance testing of test
samples, in which event acceptance testing will occur in connection with the
receiving inspection of each Product shipment outlined above. All
modifications to the procedures in this Article 2 must be agreed to in writing
(including confirmed email correspondence) by an authorized representative
of
each party.
Article
3 Health
and the Environment
3.1 Health
and Safety. Universal Display will furnish LPL with a Material Safety
Data Sheet (an “MSDS”) for each Product where required by applicable
law. LPL shall use these MSDS’s to familiarize itself with any known
hazards associated with the Products, their storage, handling and use, and
the
containers in which they are shipped. LPL shall make available the
MSDS for each Product to all those required by law to receive access to
them. In addition, LPL shall appropriately inform and train its
employees and other personnel as to the hazards identified in the MSDS for
each
Product and any other hazards discovered by LPL through its use of such
Product.
3.2 Waste
Management. LPL shall properly manage and dispose of all wastes
and/or residues resulting from its use of the Product in accordance with its
corresponding MSDS and all applicable laws and regulations.
Article
4 Intellectual
Property Matters
4.1 Permitted
Uses of the Product. LPL acknowledges that Universal Display is
selling the Product to LPL solely for use by LPL to manufacture (but not have
manufactured) by vacuum thermal evaporation deposition processes only, sell,
offer for sale and import active matrix flat panel OLED displays on rigid glass
substrates (“Permitted Displays”). Accordingly, LPL may not sell or
otherwise distribute the Product to any person or entity, or use the Product,
or
permit or assist others to use the Product, for any other
purposes. Subject to LPL’s right to make and sell Permitted Displays,
no rights are granted to LPL under any patents or other intellectual property
owned or controlled by Universal Display. For clarification, LPL is
not licensed under any of Universal Display’s top emission or other OLED
patents, except those phosphorescence patents specifically implied in use of
the
Product purchased hereunder to make and sell Permitted
Displays. Moreover, LPL is not licensed to make or sell Permitted
Displays incorporating third-party phosphorescent emitters, as this would
require a separate license from Universal Display under its phosphorescence
patents. LPL acknowledges that the pricing charged by Universal
Display for Product sold under this Agreement is based on LPL’s agreement to use
such Product only for the manufacture of Permitted Displays, and that such
pricing would not otherwise have been offered to LPL.
4.2 Third-Party
Patents. LPL acknowledges that it may be required to obtain rights
under one or more third-party patents in order to make and sell Permitted
Displays, or to use chemicals other than the Product in such displays, and
that
LPL shall be solely responsible for determining the rights it is required to
obtain and for obtaining all such rights. LPL may request reasonable
assistance from Universal Display in ascertaining and obtaining rights to the
same.
4.3 Analysis
and Evaluation of the Product. LPL shall not reverse engineer the
Product, or analyze the Product to determine their chemical compositions,
structures or methods of manufacture, or for any other purposes not expressly
approved in writing by Universal Display, nor shall LPL permit or assist others
to perform the foregoing activities. In addition, LPL shall not
publish or otherwise disclose to third parties any test results or other
information or data regarding LPL’s evaluation of the Product without Universal
Display’s prior written consent. The foregoing shall not restrict LPL
from conducting its standard performance testing of Permitted
Displays.
4.4 Technical
Advice. LPL is responsible for making its own inquiry and
investigation into, and based thereon forming an independent judgment
concerning, the Products and their suitability for the uses intended by
LPL. LPL shall not assert any claim against Universal Display or hold
Universal Display liable in any manner with respect to any information or
designs furnished (or failed to be furnished) by Universal Display including,
without limitation, technical advice or recommendations. However, the
foregoing shall not apply to technical advice or recommendations made by
Universal Display that are, to the best of Universal Display’s knowledge at the
time made or given, substantially false, misleading or inaccurate.
4.5 Export
Control. Each party shall comply with all obligations under
applicable law to control access to technical data under the U.S. Export Laws
and Regulations, or any foreign counterparts thereof, and shall adhere to such
laws and regulations in handling and disclosing any technical information
provided or received by it under this Agreement in relation to any
Product.
Article
5 Pricing
and Payments
5.1 Product
Pricing. Pricing for the Product during the term of this Agreement
shall be as set forth on in Exhibit A hereto. Every six (6) months
during the term of this Agreement, Universal Display and LPL shall in good
faith
review and discuss such pricing based on LPL’s volume of purchases and
usage. Any price change will not be effective unless confirmed by
both parties in writing. Orders issued prior to any confirmed price
change shall remain at the original price unless agreed in writing by the
parties.
5.2 Invoicing. Universal
Display shall invoice LPL for all Products at the time of
shipment. All invoices are due and payable within [The confidential
material contained herein has been omitted and has been separately filed with
the Commission.] following the date of invoice and shipment to
LPL. If LPL fails or refuses to timely pay any amounts not then being
disputed by LPL in good faith, Universal Display may (a) require that LPL pay
for future shipments in advance or by letter of credit or other similar means,
and/or (b) suspend delivery of further shipments of Product until LPL pays
such
undisputed amounts in full. The foregoing shall not limit any other
rights or remedies available to Universal Display for non-payment or late
payment of amounts due hereunder.
5.3 Sales
and
Other Similar Taxes. Any sales, use or value-added taxes, customs or
import duties or other governmental charges, transfer fees or assessments based
on the sale, shipment, import, export and/or use of the Product sold hereunder
(other than taxes based upon Universal Display’s net income), whether imposed by
any local, state, Federal or foreign government or taxing authority, [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.]. To the extent Universal Display is
responsible by law for the collection of such amounts, they shall be separately
stated on Universal Display’s invoices for such Product and, upon collection,
remitted by Universal Display to the appropriate taxing authority.
5.4 Payments. All
amounts due to Universal Display hereunder shall be paid in U.S. Dollars by
wire
transfer to a bank designated by Universal Display in writing, or by such other
means as the parties may agree in writing. Universal Display’s
current wire instructions are as follows:
[The
confidential material contained herein has been omitted and has been separately
filed with the Commission.]
Each
payment shall be fully earned when due and nonrefundable once
made. All payments due hereunder shall be made without set-off,
deduction or credit for any amount owed (or alleged to be owed) by Universal
Display to LPL or any of its affiliates. Universal Display may
require LPL to pay interest on any amounts not paid when due at a per annum
rate
equal to the Prime Rate as published in The Wall Street Journal on the
date of payment plus [The confidential material contained herein has been
omitted and has been separately filed with the Commission.].
5.5 Payment
Authorization and Withholding Taxes. LPL shall secure all
authorizations required for payment of all amounts due to Universal Display
hereunder and shall bear all transfer fees, taxes and other charges associated
therewith. If necessary, the parties shall in good faith endeavor to
file for and obtain an exemption from the withholding of any taxes on amounts
payable to Universal Display hereunder.
Article
6 Confidentiality
6.1 Obligations
of Confidentiality and Non-Use. Each party (the “Recipient”) shall
handle and maintain all Confidential Information of the other party in
accordance with the following terms and conditions:
6.1.1 Recipient
shall not publish, disclose or otherwise disseminate any Confidential
Information of the other party, except to such of Recipient’s employees and
agents who have a “need to know” it to accomplish the purposes of this
Agreement, and then only if such persons previously have agreed in writing
to
handle and maintain such Confidential Information in accordance with the
provisions of this Agreement or provisions substantially similar
thereto. Disclosure or dissemination of Confidential Information of
the other party to additional persons or entities requires the prior written
approval of such other party.
6.1.2 Recipient
shall maintain all Confidential Information of the other party in a safe and
secure place with reasonable safeguards to prevent any unauthorized access
to or
disclosure of such Confidential Information. As used herein,
“reasonable safeguards” means all safeguards that a reasonable person would take
to protect the Confidential Information in question, which safeguards shall
be
no less than the safeguards Recipient takes to protect its own confidential
or
proprietary items of a similar nature.
6.1.3 Recipient
shall not utilize, reproduce or otherwise exploit any Confidential Information
of the other party, or permit or assist others to utilize, reproduce or
otherwise exploit such Confidential Information, except as is reasonably
necessary to accomplish the purposes of this Agreement.
6.1.4 Promptly
upon learning of any unauthorized use or disclosure of any Confidential
Information of the other party, Recipient shall provide the other party with
written notice thereof and take such other steps as are reasonably requested
by
the other party in order to limit the effects of such use or disclosure and/or
prevent any further unauthorized use or disclosure of such Confidential
Information.
6.1.5 Promptly
upon the expiration or sooner termination of this Agreement, Recipient shall
return to the other party, destroy and/or delete from Recipient’s records and
computer systems all Confidential Information of the other party according
to
the other party’s instruction, including any copies or portions thereof, in
Recipient’s possession or control; provided, however, that Recipient may retain
one copy of documents incorporating Confidential Information for archival
purposes only. Within thirty (30) days following the other party’s
written request, Recipient shall provide the other party with a certificate
of
Recipient’s compliance with the foregoing requirements.
6.2 Survival
of Obligations. The obligations of confidentiality contained in this Agreement
shall survive the expiration or termination of this Agreement, whether due
to
expiry of the term or for any other reason, for a period of five (5) years
from
the date of expiration or termination.
6.3 Definition
of Confidential Information. As used herein, “Confidential
Information” of a party means information pertaining to this Agreement, which
information relates to such party’s or its licensors’ or suppliers’
technologies, materials, research programs, operations and/or financial or
business condition (including, without limitation, know-how, data, drawings,
designs, specifications, formulations, processes, methods, equipment, software
and pricing information), and which information is (a) disclosed in writing
and
marked as “Confidential”, “Proprietary” or with similar words at the time of
disclosure; or (b) orally disclosed and identified as confidential or
proprietary at the time of disclosure and confirmed as such in writing within
thirty (30) days thereafter. Notwithstanding the foregoing,
“Confidential Information” of a party shall not include any information
that:
6.3.1 is
approved by such party in writing for release by Recipient without
restriction;
6.3.2 Recipient
can demonstrate by written records was previously known to Recipient other
than
through a prior disclosure by such party or any third party with an obligation
of confidentiality to such party;
6.3.3 is
publicly known as of the date of this Agreement, or becomes public knowledge
subsequent thereto, through no act or omission of Recipient or any third party
receiving such information from or through Recipient;
6.3.4 is
obtained by Recipient in good faith from a third party without the violation
of
any obligation of confidentiality to such party by either Recipient or the
third
party; or
6.3.5 is
independently developed by or on behalf of Recipient without the benefit of
such
party’s Confidential Information, as shown by competent written
records.
6.4 Disclosure
Required by Law. This Agreement shall not restrict Recipient from
disclosing any Confidential Information of the other party to the extent
required by applicable law, or by the order of any court or government agency;
provided, however, that Recipient shall afford the other party prompt notice
of
such law or order, so that the other party may interpose an objection to such
disclosure or take whatever other actions the other party deems appropriate
to
protect such Confidential Information, and provided further that Recipient
shall
use all reasonable efforts to limit such disclosure to only that Confidential
Information which is required to be disclosed and to ensure that the person
or
entity to whom such Confidential Information is disclosed agrees to keep it
confidential.
6.5 Responsibility
for Personnel. Recipient shall be responsible for the acts or
omissions of any persons or entities receiving Confidential Information of
the
other party from or through Recipient to the extent such acts or omissions,
if
performed or not performed by Recipient, would constitute violations of this
Agreement by Recipient.
6.6 Confidentiality
of this Agreement. The terms of this Agreement and its existence
shall be deemed Confidential Information of each party and treated as such
by
both parties. Notwithstanding the foregoing sentence, either party
may disclose in its public filings such of the terms of this Agreement as are
reasonably required for such party to comply with applicable securities laws
and
regulations, including, without limitation, by filing an appropriately redacted
copy of this Agreement in connection therewith. In addition, either
party may issue a press release or other public announcement describing the
general nature of this Agreement, or the parties may agree to issue such a
release or announcement jointly, it being understood that Universal Display
will
need to issue a press release within four (4) business days following the
Effective Date so as to coincide with its filing with the U.S. Securities and
Exchange Commission of a Current Report on Form 8-K. However, it is
expressly understood and agreed that no such release or public disclosure shall
disclose any information about LPL’s expected or intended OLED product launch
strategy, or whether any such OLED product will utilize any Product sold to
LPL
hereunder, without LPL’s prior written consent. Subject to the
foregoing provisions of this paragraph, any such public disclosure of the
specific financial terms or other provisions of this Agreement, or any other
information regarding the relationship between the parties hereunder, shall
require the other party’s prior written consent.
Article
7 Representations
and Warranties; Disclaimers and Limitations of Liability
7.1 Warranties
by Both Parties. Each party represents and warrants to the other that
such party has the right, power and authority to enter into this Agreement
and
to perform its obligations hereunder, and that such performance will not violate
any other agreement or understanding by which such party is bound.
7.2 Further
Product Warranty by Universal Display. Universal Display additionally
represents and warrants to LPL that all Products will comply with their
corresponding Product Specifications for a period of [The confidential material
contained herein has been omitted and has been separately filed with the
Commission.], provided that LPL maintains the Product consistent with good
general handling and storage practices and any supplemental instructions
provided by Universal Display. All claims of any breach of the
foregoing warranty must be provided to Universal Display in writing during
the
warranty period or they shall be deemed waived by LPL. In the event
of a breach of the foregoing warranty, Universal Display shall, at LPL’s option,
(a) promptly replace any Product that are not in compliance with the warranty
at
Universal Display’s sole expense; or (b) accept return of such Product and
reimburse all the fees that LPL paid Universal Display on account
thereof.
7.3 Further
Infringement Warranty by Universal Display. Universal Display
warrants to LPL that, to the best of Universal Display’s knowledge, the Products
do not infringe the valid patent rights of any third party. If LPL is
unable to use any Product because the Product itself is held by a court of
competent jurisdiction to infringe the patent or other intellectual property
rights of any unaffiliated third party, Universal Display shall accept return
of
any quantities of such Product no longer reasonably useful to LPL on account
thereof and reimburse all fees that LPL paid Universal Display on account
thereof. The foregoing shall be in addition to any indemnification
obligation of Universal Display under Article 8 below.
7.4 Disclaimer
of Additional Warranties. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT,
VALIDITY, QUALITY, PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, ARE HEREBY DISCLAIMED BY EACH PARTY. In particular,
Universal Display makes no representations or warranties that LPL will be able
to make any specific use of the Product without obtaining additional license
rights from third parties. IN NO EVENT SHALL UNIVERSAL DISPLAY’S LIABILITY FOR
ANY BREACH OR ALLEGED BREACH OF REPRESENTATION OR WARRANTY UNDER THIS AGREEMENT
EXCEED [The confidential material contained herein has been omitted and has
been
separately filed with the Commission.].
7.5 Limitation
on Certain Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER, WHETHER AS A RESULT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE)
OR
OTHERWISE, FOR ANY SPECIAL OR PUNITIVE DAMAGES ARISING UNDER OR IN CONNECTION
WITH A BREACH OR ALLEGED BREACH OF THIS AGREEMENT. The foregoing
limitation shall not limit either party’s liability to the other party for: (a)
any claims of bodily injury or damage to tangible property resulting from such
party’s negligence or willful misconduct, (b) any unauthorized practice under
the other party’s patents or use of the other party’s proprietary materials or
information; or (c) any breach of the provisions of Article 6 respecting
Confidential Information.
7.6 Essential
Part of the Bargain. The parties acknowledge that the disclaimers and
limitations of liability set forth in this Article 7 reflect a deliberate and
bargained for allocation of risks between the parties and are intended to be
independent of any exclusive remedies available under this Agreement, including
any failure of such remedies to achieve their essential purpose.
Article
8 Indemnification
8.1 Indemnification
by Universal Display. In accordance with Section 8.2 below, Universal
Display shall, at its responsibilities and expenses, defend any claim or action
including but not limited to suits, complains and any disputes brought against
LPL and/or its officers, directors, suppliers, employees, agents and
representatives (each, a “LPL Indemnified Person”), to the extent such claim or
action concerns[The confidential material contained herein has been omitted
and
has been separately filed with the Commission.]. In addition,
Universal Display shall indemnify and hold harmless the LPL Indemnified Persons
from and against any damages, fees and expenses (including reasonable attorneys’
fees) payable by any of them to third parties in connection with such claim
or
action. The foregoing indemnity shall not apply to any third-party
infringement claims relating to LPL’s specific usage of the Product in an OLED
device, which claims shall be the responsibility of LPL.
8.2 Indemnification
Procedures. With respect to any claim or action for which
indemnification may be sought from a party under this Article 8, the person
or
entity seeking indemnification (the “Claimant”) shall promptly notify the
indemnifying party in writing, specifying the nature of the claim or action
and,
to the extent known, the total monetary amount sought or other such relief
as is
sought therein. The Claimant shall reasonably cooperate with the
indemnifying party, at the indemnifying party’s expense, in connection with the
indemnifying party’s defense and/or settlement of the claim or
action. The indemnifying party shall keep the Claimant reasonably
informed of the progress of its defense and settlement of the claim or
action. The indemnifying party shall not settle the claim or action
on the Claimant’s behalf without first obtaining the Claimant’s written
approval, which approval shall not be unreasonably withheld or
delayed. In the event that the indemnifying party fails to notify the
Claimant of the indemnifying party’s intention to take any action within 20
calendar days after receipt of a notice of any claim or action, or fails to
proceed in good faith with the resolution of such claim or action, the Claimant
may, at its option, send written notice to the indemnifying party indicating
the
Claimant’s intention to (i) defend the claim or action itself and/or (ii) enter
into any good faith settlement negotiations with the third party. If
the indemnifying party does not respond within 20 calendar days thereafter,
then, with a prior notice to the indemnifying party and subject to the remainder
of this paragraph, the Claimant may proceed to defend and/or attempt to settle
the claim or action, and the indemnifying party will reimburse the Claimant
on
demand all reasonable costs and expenses incurred by the Claimant in defending
and/or settling the claim or action, including the settlement amount, and any
reasonable attorneys’ and consultants’ fees and costs. Also, the indemnifying
party shall provide the Claimant, at the indemnifying party’s expense, with
reasonable assistance necessary for the defense or settlement of such claim
or
action. The Claimant may not settle any claim or action for which
indemnification is sought hereunder without the indemnifying party’s written
approval, which approval shall not be unreasonably withheld or
delayed. Except as may be required by law, each party agrees not to
publicize any settlement without first obtaining the other party’s written
permission.
Article
9 Term
and Termination
9.1 Term. Unless
otherwise extended by mutual written agreement of the parties, the term of
this
Agreement shall commence on the Effective Date and shall continue until the
sooner of June 30, 2008, or the date on which this Agreement is terminated
as
permitted hereunder.
9.2 Termination
for Breach. Either party may terminate this Agreement on written
notice to the other party if the other party materially breaches any of its
obligations under this Agreement and fails to cure such breach within sixty
(60)
days following written notice thereof by the terminating party.
9.3 Other
Termination. Either party may terminate this Agreement on written
notice to the other party if the other party permanently ceases conducting
business in the normal course, becomes insolvent or is adjudicated bankrupt,
makes a general assignment for the benefit of its creditors, admits in writing
its inability to pay its debts as they become due, permits the appointment
of a
receiver for its business or assets, or initiates or becomes the subject of
any
bankruptcy or insolvency proceedings which proceedings, if initiated
involuntarily, are not dismissed with sixty (60) days thereafter. In
addition, either party may terminate this Agreement on written notice to the
other party in the event of a change in control of such other party, whether
by
merger, acquisition or otherwise; provided, however, that such notice of
termination must be given within sixty (60) days following such party’s receipt
of notice of such merger or acquisition.
9.4 Survival. The
following provisions of this Agreement shall survive the expiration or earlier
termination of this Agreement: any confidentiality obligations of
each party; any warranty and indemnification obligations of each party; any
payment obligations of LPL with respect to Product received or for which Orders
have been placed prior to the date of such expiration or earlier termination;
any intellectual property rights obligations and restrictions imposed on either
party; any obligations of either party respecting taxes or tax withholding;
the
provisions respecting non-assignment, equitable relief and choice of law; and
any other provisions necessary to interpret the respective rights and
obligations of the parties hereunder.
Article
10 Miscellaneous
10.1 Independent
Contractors. This Agreement is not intended by the parties to
constitute, create, give effect to, or otherwise recognize a joint venture,
partnership, or formal business organization of any kind. Each party
hereto shall act as an independent contractor, and neither shall act as an
agent
of the other for any purpose. Neither party has the authority to
assume or create any obligation, express or implied, on behalf of the
other.
10.2 Force
Majeure. Neither party shall be in breach of this Agreement for any
failure of performance caused by an event beyond its reasonable control and
not
due to its fault or negligence. In the event that such a force
majeure event occurs, the party unable to perform shall promptly notify the
other party of such non-performance and its expected duration. In
addition, such party shall in good faith maintain such partial performance
of
this Agreement as is reasonably possible, shall use all reasonable efforts
to
overcome the cause of nonperformance and shall resume full performance as soon
as is reasonably possible. If the non-performance caused by the force majeure
conditions are not cured within sixty (60) days of the force majeure event,
then
either party may immediately terminate this Agreement.
10.3 Non-Assignment. This
Agreement and the rights and obligations of the parties hereunder shall not
be
assigned or transferred by either party without the prior written consent of
the
other party, except that either party may assign or transfer this Agreement,
in
its entirety and on written notice to the other, to a successor in interest
to
all or substantially all of such party’s business to which this Agreement
relates, whether by merger, acquisition or otherwise, subject in any such case
to the other party’s right of termination under Section 9.3
above. Notwithstanding the foregoing, LPL may not assign or transfer
this Agreement to a third party with whom Universal Display is then-engaged
in
litigation or other formal adversarial or dispute resolution proceedings
respecting any Universal Display products or technologies. Should LPL
assign or transfer this Agreement, whether by merger, acquisition or otherwise,
to a third party with an existing OLED business, or should LPL acquire the
existing OLED business of any third party, this Agreement shall not be utilized
for the benefit of such third party’s OLED business unless expressly agreed to
by Universal Display in writing. Moreover, should Universal Display
have already entered into a similar agreement with the third party at the time
of such assignment, transfer or acquisition, there shall be no reduction of
the
payment or other obligations of LPL under this Agreement as they pertain to
LPL’s OLED business, or of such third party under its similar agreement as they
pertain to such third party’s OLED business, unless expressly agreed to by
Universal Display in writing. Nothing herein shall confer any rights
upon any person other than the parties hereto and their respective successors
and permitted assigns.
10.4 Equitable
Relief. In the event of a party’s actual or reasonably anticipated
use of the other party’s proprietary materials (including, in the case of
Universal Display, the Product) in an unauthorized manner, infringement of
the
other party’s patents, or breach of the provisions of Article 7 respecting
Confidential Information of the other party, such other party shall be entitled
to injunctive or other equitable relief restraining such activity, without
the
necessity of proving actual damages or posting any bond or other
security. Such relief shall be in addition to, and not in lieu of,
any other remedies that may be available, at law or equity, including, without
limitation, an action for the recovery of damages.
10.5 Choice
of
Law; Dispute Resolution. This Agreement shall be governed and
construed by the laws of the State of New York, U.S.A., without reference to
conflict of law principles. Prior to terminating this agreement or
initiating any action or request for arbitration, the parties shall make good
faith efforts to attempt to amicably settle all disputes, controversies, or
differences which may arise between parties hereto, out of or in relation to
or
in connection with this Agreement or breach thereof. In the event
that the amicable settlement is not reached within 30 days after the disputes
first arise, such disputes may, at the request of either party, be submitted
to
the International Chamber of Commerce (“ICC”) and shall be finally settled
through binding arbitration under the Rules of Arbitration of the
ICC. The seat of the arbitration shall be in Seoul, Republic of Korea
if LPL requests arbitration, and New York, New York, U.S.A. if Universal Display
requests arbitration, and the language of arbitral proceedings shall be in
the
English language, and the award rendered by arbitrators shall be final and
binding upon the parties hereto. Unless agreed to by both parties in
writing, the foregoing shall not apply to disputes pertaining to breaches of
confidentiality, the infringement of patents or other intellectual property
rights, or unauthorized uses of the Products. Moreover, nothing
herein shall prevent either party from seeking or obtaining temporary or
permanent injunctive relief of any nature at any time.
10.6 Notices. All
notices and other communications under this Agreement shall be in writing and
hand delivered or sent by facsimile or e-mail transmission with confirmation
of
receipt, commercial overnight courier with written verification of receipt,
or
certified or registered mail, postage prepaid and return receipt requested;
provided, however, that all notices concerning any dispute or any alleged breach
or termination of this Agreement, in whole or in part, must be sent by overnight
courier or certified or registered mail. Such notices and other
communications shall be effective when received if hand delivered, when sent
if
sent by confirmed facsimile or e-mail transmission, on the next business day
of
the recipient when sent by overnight courier, or five (5) business days after
deposit in the mail when sent by certified or registered mail. All
notices and other communications shall be directed to the parties at their
respective addresses as set forth below, or to such other address(es) as either
party shall provide to the other in a notice given in accordance
herewith.
All
Orders and any other notices respecting the Product, to:
Universal
Display
Corporation LG.
Philips LCD Co., Ltd.
000
Xxxxxxxx
Xxxxxxxxx 000-0,
Xxxxxxxxx-xxxx, Xxxx-xxxx
Ewing,
New
Jersey 08618 Gyungsangbuk-do,
Korea
Attn:
Xxxxxx
Xxxxx Attn:
Xxxxxxxx Xxx
Fax
No.:
(000)
000-0000 Fax
No.: (000) 000-0000
Tel
No.:
(000) 000-0000
x000 Tel
No.: (000) 000-0000
E-mail:
xxxxxxx@xxxxxxxxxxxxxxxx.xxx E-mail:
xxxxxxxx@xxxxxxxxx-xxx.xxx
All
other
notices and communications:
[same
as
above] [same
as above]
Attn:
Xxxxxx X.
Xxxxxxxx Attn:
Xxxxxxxx Xxx
Fax
No.:
(000)
000-0000 Fax
No.: (000) 000-0000
Tel
No.:
(000) 000-0000
x000 Tel
No.: (000) 000-0000
E-mail:
xxxxxxxx@xxxxxxxxxxxxxxxx.xxx E-mail:
xxxxxxxx@xxxxxxxxx-xxx.xxx
10.7 Amendments;
No Waivers. No modification of or addition to this Agreement shall be
effective unless it is in writing and signed by an authorized representative
of
each of the parties hereto. The failure of either party to assert any
right hereunder, or to insist upon compliance with any term or condition herein,
will not constitute a waiver of that right or excuse any subsequent
nonperformance of any such term or condition, or of any other term or condition,
by the other party.
10.8 Severability. In
view of the possibility that one or more of the provisions of this Agreement
may
subsequently be declared invalid or unenforceable by court or administrative
decision, the parties hereto agree that invalidity or unenforceability of any
of
the provisions shall not in any way affect the validity or enforceability of
any
other provisions of this Agreement, except where the invalidated or
unenforceable provisions comprise an integral part of, or are otherwise clearly
inseparable from, such other provisions.
10.9 Entire
Agreement. This Agreement contains the entire agreement between the
parties with respect to the subject matter hereof, and neither party shall
have
any obligation with respect thereto, express or implied by law, except as set
forth herein or therein.
10.10 Counterparts. This
Agreement may be executed in one or more counterparts, each of which shall
be
deemed to be an original, but all of which taken together shall constitute
one
and the same instrument.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by
their duly authorized representatives:
XX.Xxxxxxx
LCD Co.,
Ltd. Universal
Display Corporation
By: /s/
In Xxx
Xxxxx By: /s/
Xxxxxx X. Xxxxxxxx
Name: In
Jae ChungName:Xxxxxx X. Xxxxxxxx
Title: Executive
Vice
President Title:President
Date: May
23,
2007 Date: May
23, 2007
Exhibit
A
Products
and Product Pricing
[The
confidential material contained herein has been omitted and has been separately
filed with the Commission.]
