EXHIBIT 4.(h)
CONFORMED COPY
JOINT RESEARCH AND DEVELOPMENT AND COST SHARING AGREEMENT
This JOINT RESEARCH AND DEVELOPMENT AND COST SHARING AGREEMENT (this
"Agreement") is made as of March 10, 2003 (the "Effective Date") by and between
Fujitsu Display Technologies Corporation, a Japanese corporation ("FDTC"), and
AU Optronics Corporation, a Republic of China corporation ("AUO"). FDTC and AUO
are hereinafter also referred to collectively as the "Parties" and individually
as a "Party."
RECITALS
A FDTC is in the business of, among other things, designing,
manufacturing and marketing liquid crystal display modules and panels, and
possesses expertise and owns proprietary rights relating to its products,
including, without limitation, copyrights, know-how, inventions, trade secrets,
patents, patent applications and the like; and
B. As part of a strategic alliance to be entered into with FDTC
and Fujitsu Limited, a Japanese corporation ("Fujitsu"), the Parties desire to
conduct joint development of products that will incorporate new technology to
be developed principally by FDTC, which new technology will be jointly owned by
the Parties.
NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Parties hereby agree as follows:
AGREEMENT
1. Definitions
The following terms when used in this Agreement shall have the
following definitions:
1.1 "Additional Shares" is as defined in the Stock Purchase
Agreement (as hereinafter defined).
1.2 "Affiliate" means any Person: (a) that is controlled by,
controls, or is under common control with a Party (collectively, a "Controlled
Person"); or (b) that is controlled by, controls, or is under common control
with any such Controlled Person, in each case for so long as such control
continues. For purposes of this definition, "control" shall mean the
possession, directly or indirectly, of the power to direct or cause the
direction of management or policies (whether through ownership of securities or
other ownership interests, by contract or otherwise).
1.3 "Annual Budget" is defined in Section 5.1.
1.4 "Applicable Law" means, as to any Person, any statute, law,
rule, regulation, directive, treaty, judgment, order, decree or injunction of
any Governmental Authority that is applicable to or binding upon such Person or
any of its properties.
1.5 "Chairman" is defined in Section 3.3.
1.6 "Claims" is defined in Section 11.4.
1.7 "Committee Member" is defined in Section 3.2.
1.8 "Confidential Information" is defined in Section 9.1.
1.9 "Developed Technology" means any Technology relating to LCD
Products which is developed by either Party in the course of activities
expressly undertaken as part of a Joint Project (as hereinafter defined).
1.10 "Disclosing Party" is defined in Section 9.1.
1.11 "Filing" means the submission of any documentation,
application, filing, registration or the like required to perfect or enforce
the Parties' interest in any Developed Technology under statutory Intellectual
Property Right protection mechanisms, including, without limitation, any
correspondence or other communication with any patent or copyright office or
other Governmental Authority with respect thereto.
1.12 "Force Majeure" is defined in Section 14.14.
1.13 "Governmental Authority" means any domestic or foreign
government, governmental authority, court, tribunal, agency or other
regulatory, administrative or judicial agency, commission or organization, and
any subdivision, branch or department of any of the foregoing.
1.14 "Indemnified Parties" is defined in Section 11.4.
1.15 "Indemnifying Party" is defined in Section 11.4.
1.16 "Initial Closing" is as defined in the Stock Purchase
Agreement.
1.17 "Intellectual Property Rights" means, collectively, Patents,
Trade Secrets, Copyrights and all other intellectual property rights and
proprietary rights except for Trademarks, trade names, rights in trade dress
and similar indicia or origin, whether arising under the laws of Japan,
Republic of China or any other state, country or jurisdiction, including all
rights or causes of action for infringement or misappropriation of any of the
foregoing, in each case now existing or hereafter developed during the term of
this Agreement. For purposes
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of this Agreement: (a) "Patents" shall mean all patent rights and all right,
title and interest in all letters patent or equivalent rights and applications,
including any reissue, extension, division, continuation, or
continuation-in-part applications throughout the world; (b) "Trade Secrets"
shall mean all right, title and interest in all trade secrets and trade secret
rights arising under the laws of any jurisdiction; (c) "Copyrights" shall mean
all copyrights, and all right, title and interest in all copyrights, copyright
registrations and applications for copyright registration, certificates of
copyright and copyrighted interests throughout the world, and all right, title
and interest in related applications and registrations throughout the world;
and (d) "Trademarks" shall mean all trademarks and service marks, and all
right, title and interest in all trademarks and service marks arising under the
laws of any jurisdiction, trademark and service xxxx registrations and
applications therefor, and all right, title and interest in related
applications and registrations throughout the world.
1.18 "Joint Projects" is defined in Section 4.2.
1.19 "LCD" means liquid crystal display.
1.20 "LCD Products" means (a) LCD panels and (b) LCD modules
consisting of a LCD panel assembled with a back light, driver circuit and
interface circuit (and not including (i) electronic circuits not commonly
included in an LCD module, such as the following Micro Control Units (MCU),
scaling circuits, On Screen Display (OSD) circuits, Analog to Digital converter
circuits, AC-DC power circuits, inverter circuits, and audio circuits; and (ii)
cabling, connectors, and other mechanical parts not commonly included in an LCD
module).
1.21 "Licensed Patents" is as defined in the Patent and Technology
License Agreement.
1.22 "Licensed Technical Information" is as defined in the Patent
and Technology License Agreement.
1.23 "Manufacturing Capacity and Foundry Agreement" means that
certain Manufacturing Capacity and Foundry Agreement to be entered into by and
between the Parties within a reasonable period after the Effective Date.
1.24 "Patent and Technology License Agreement" means that certain
Patent and Technology License Agreement by and between the Parties to be
effective on the date on which the Initial Purchase Price (as defined in the
Stock Purchase Agreement) paid by AUO is received in the subscription account
(betsudan yokin xxxx) designated by FDTC pursuant to Section 1.3 of the Stock
Purchase Agreement.
1.25 "Person" means a natural individual, Governmental Authority,
partnership, firm, corporation, or other business association or entity.
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1.26 "Prior License Agreement" means that certain License Agreement
entered into by and between Fujitsu and Acer Display Technology Inc. as of June
16, 2000.
1.27 "R&D Committee" is defined in Section 3.1.
1.28 "Receiving Party" is defined in Section 9.1.
1.29 "Stock Purchase Agreement" means that certain Stock Purchase
Agreement to be entered into by and among Fujitsu, FDTC and AUO within a
reasonable period after the Effective Date.
1.30 "Technology" means technical information, know-how, designs,
drawings, specifications, schematics, software (in source and object code
form), manuals and other documentation, data, databases, processes, techniques,
methods, applications and other technology, information and materials, whether
tangible or intangible.
1.31 "Technology Transfer Agreement" means that certain Technology
Transfer Agreement entered into by and between FDTC and AUO as of October 16,
2002.
1.32 "Transaction Documents" means this Agreement, the Stock
Purchase Agreement, the Patent and Technology License Agreement, and the
Manufacturing Capacity and Foundry Agreement.
1.33 "Use" with respect to Technology, means make, have made, use,
sell, reproduce, distribute, perform or display (publicly or otherwise),
prepare derivative works based on or otherwise exploit such Technology.
1.34 "Yen" or "(Y)" means Japanese Yen, the legal currency of
Japan.
2. Scope of Agreement
2.1 Scope. This Agreement sets forth, among other things, the
terms and conditions under which (a) the Parties shall conduct research and
development activities relating to LCD Products as Joint Projects in accordance
with decisions of the R&D Committee as provided herein, (b) the Parties shall
share in the costs of the Joint Projects and (c) the Parties shall jointly own
the Developed Technology.
2.2 Limited Rights and Obligations. Each Party hereby
acknowledges and agrees that the scope of the relationship between the Parties
hereunder shall be limited to the purposes and activities expressly set forth
herein, and that the rights and obligations of the Parties with respect to each
other shall be limited to those expressly prescribed in this Agreement and in
the other Transaction Documents. Neither Party has any right, obligation or
responsibility with respect to the other Party except as expressly provided
herein or in the other Transaction
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Documents, or authorized after the Effective Date by the mutual written
agreement off the Parties, and no such right, obligation or responsibility
shall be implied by the terms and conditions of this Agreement or the conduct
of the Parties hereunder.
2.3 Independent Development. Except as otherwise specifically
provided herein, this Agreement shall in, no way preclude either Party from
independently developing, having developed or acquiring any Technology (whether
relating to LCD Products or otherwise), irrespective of any similarity to the
Developed Technology, nor shall this Agreement preclude or restrict either
Party from selling, licensing, sublicensing or otherwise disposing of products
not based on the Developed Technology.
3. R&D Committee
3.1 Formation; General Function. FDTC and AUO shall form a
research and development committee ("R&D Committee") immediately after the
Effective Date. The R&D Committee will generally be responsible for deciding
which research and development activities of FDTC and/or AUO will be deemed
Joint Projects, and for setting the annual budget for the Joint Projects. The
specific responsibilities of the R&D Committee are set forth in Sections 4 and
5.
3.2 Appointment. The R&D Committee shall consist of ten (10)
individuals, five (5) appointed by each Party (each individual appointed to the
R&D Committee, a "Committee Member" and collectively, the "Committee Members").
Each Committee Member shall serve until removed and replaced by a Party in
accordance with Section 3.4.
3.3 Chairman. FDTC shall have the sole right to designate one of
the Committee Members it appoints to serve as the chairman (the "Chairman") of
the R&D Committee following consultation with AUO. FDTC shall have the right,
in its sole discretion, to change its designation and select a new Chairman
from among its appointees to the R&D Committee following consultation with AUO,
effective upon the delivery of written notice to AUO and the Chairman to be
removed.
3.4 Removal and Reappointment. Each Party having the right to
appoint a Committee Member pursuant to Section 3.2 shall also have the right,
in its sole discretion, to remove and replace such Committee Member at any
time, effective upon delivery of written notice to the other Party and the
Committee Member to be removed. In the case of a vacancy in the office of a
Committee Member for any reason (including, without limitation, removal
pursuant to the preceding sentence), the vacancy shall be filled by the Party
that appointed the Committee Member in question.
3.5 Committee Meetings. Meetings of the R&D Committee shall be
conducted in accordance with written rules and procedures prepared by the
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Chairman. The Chairman shall have the sole authority to convene R&D Committee
meetings, including the authority to specify the time and place of such
meetings; provided, however, that (a) the R&D Committee shall meet at least
once during each FDTC fiscal quarter and (b) written notice of all R&D
Committee meetings shall be given to each Committee Member not less than ten
(10) business days in advance (which period may be shortened with the consent
of all Committee Members). At its meetings, the R&D Committee will review and
discuss, among other things, the progress of Joint Projects, the status of
expenditures under the applicable Annual Budget and the discontinuance or
addition of Joint Projects. Committee Members may attend R&D Committee meetings
in person, by telephone or via videoconference. The costs and expenses incurred
by each Committee Member in attending meetings shall be borne by the Party that
appointed such Committee Member.
3.6 Actions. Any action or determination of the R&D Committee
shall require the majority vote of all Committee Members. The AUO-appointed and
FDTC-appointed Committee Members will discuss in reasonable detail any matters
requiring any action or determination of the R&D Committee, including without
limitation the designation or rejection of any project as a Joint Project
subject to Section 4.2 or Section 4.3. Following such discussions, any tie vote
with respect to any matter shall be resolved in accordance with the Chairman's
vote, and any decision of the Chairman pursuant to Section 4.3 shall be final.
4. Joint Projects
4.1 Development Plans. To enable the R&D Committee to nominate
certain projects to be Joint Projects, FDTC will, at least once per each FDTC
fiscal year, disclose to the Committee Members, on a strictly confidential
basis, all of its development plans for the immediately following fiscal year
relating to LCD Products as potential Joint Projects; provided, however, that
FDTC will be under any obligation to disclose any plans to the extent (a) the
disclosure of such plans is prohibited due to confidentiality obligations owed
by FDTC to a third party or (b) FDTC has not expected such plans to be
performed by the engineering resources allocated by FDTC pursuant to Section
6.1. In case that AUO discloses any of its development plan as a potential
Joint Project, the R&D Committee Members will discuss if such proposed
development plan is appropriate as the Joint Projects in view of maximizing
both Parties' interest.
4.2 Joint-Projects. On an annual basis, the R&D Committee will
determine the target products, manufacturing processes and technologies
relating to LCD Products that will be the subject of the projects undertaken by
either FDTC or AUO pursuant to this Agreement and accordingly designated "Joint
Projects" during the immediately following FDTC fiscal year. The R&D Committee
will also determine which Party will have primary responsibility for, and
undertake the research and development activities in connection with, each
Joint Project. The Parties currently anticipate that FDTC will have primary
responsibility for, and will undertake the research and development activities
for,
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the majority of the Joint Projects, including, without limitation, all of
the Joint Projects undertaken during the first year of this Agreement. The
Party undertaking any Joint Project will use commercially reasonable efforts to
perform research and development activities in accordance with such Joint
Project. With respect to each Joint Project, the R&D Committee will determine a
plan including a target schedule and budget, an allocation of engineering
resources by the Party undertaking the Joint Project, and any applicable
deliverables, development milestones, quality requirements, acceptance testing
criteria and other relevant requirements. At any time after the commencement of
any Joint Project, the plan for such Joint Project may be modified as
determined by the R&D Committee.
4.3 Project Rejection. In the event that the AUO-appointed
Committee Members request that a certain FDTC development plan disclosed to the
R&D Committee be designated a Joint Project, and the Chairman rejects such
designation, FDTC shall not actively pursue such development plan during the
twelve (12)-month period immediately following such request (unless the R&D
Committee later agrees to designate such plan as a Joint Project during such
period); provided, however, that the foregoing restriction shall not apply to
any development plan to the extent that FDTC has a contractual obligation to a
third party to pursue such development plan.
4.4 Commencement of R&D Activities. FDTC and AUO intend for work
on the Joint Projects for the first year of this Agreement to begin on or
before April 1, 2003
5. Annual Budget
5.1 Budget Process. On an annual basis, the R&D Committee will
determine the total research and development budget for the Joint Projects
approved by the R&D Committee for the immediately following FDTC fiscal year
(the "Annual Budget"). The Annual Budget will include (a) the budgeted amount
for each Joint Project to be undertaken during the year, (b) the expenses
relating to field application engineering assistance FDTC agrees to provide
during the applicable annual period, and (c) all costs of patent applications,
maintenance and prosecution for Licensed Patents under the Patent and
Technology License Agreement and for maintaining any legal protections
applicable to any Licensed Technical Information under the Patent and
Technology License Agreement, including reasonable attorneys' fees in
connection with any of the foregoing. The Annual Budget will also include any
other costs and expenses that the R&D Committee reasonably determines are
necessary in connection with the Joint Projects and the Developed Technology;
provided, however, that the Annual Budget will not include any expenses
relating to prototyping of products (including, without limitation, AUO
products and FDTC products) by either Party, which expenses will be treated
separately as set forth in Section 7.2.
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5.2 First Budget. The amount of the first Annual Budget will be
* , all of which will be allocated to the Joint Projects undertaken
during the first year of this Agreement by FDTC.
5.3 Budget Overruns. In the event that the actual costs to a
Party undertaking a Joint Project exceed the amount allocated to such Joint
Project in the applicable Annual Budget, the R&D Committee shall determine, on
a case-by-case basis, how to address the deviation from the budgeted amount.
Measures that the R&D Committee may consider include, without limitation,
allowing offset between the costs of such over-budget Joint Project and any
under-budget Joint Project, and increases in the applicable Annual Budget and
the amount allocated therein to such over-budget Joint Project.
6. Engineering Support; R&D Sites; Other Agreements
6.1 Allocation of Engineering Resources.
(a) The type and amount of engineering resources to be allocated
to any joint Project will be determined by the R&D Committee and set forth in
the applicable Joint Project plan. In the event that a Party requires any
engineering support not initially contemplated by any Joint Project plan, the
other Party shall provide such support, on terms and conditions to be agreed
separately by the Parties.
(b) The Parties currently anticipate that the allocation of
engineering resources agreed upon by the R&D Committee with respect to Joint
Projects during the first year of this Agreement will equal approximately *
of FDTC's design engineering resources (on a headcount basis), including
several personnel to be assigned by FDTC, to the extent reasonably necessary,
to deliver to AUO, and in order to assist AUO in implementing, all Developed
Technology resulting from all such first year Joint Projects.
6.2 Research and Development Sites. All Joint Projects will be
undertaken at FDTC's facilities in Japan and at such other facilities as may be
agreed upon by the R&D Committee. If either Party dispatches its engineers to
facilities of the other Party in accordance with a Joint Project plan, all
costs and expenses relating to the dispatchment of such engineers will be borne
by the dispatching Party, unless the non-dispatching Party has expressly agreed
in advance to bear dispatchment costs and expenses for a dispatchment performed
solely due to the request of the non-dispatching Party.
6.3 Background Technology. Each Party hereby grants to the Party
performing any research or development activities for a Joint Project
(expressly
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* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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pursuant to the Joint Project plan approved by the R&D Committee), a
non-exclusive, royalty-free, non-transferable license under the Intellectual
Property Rights owned or controlled by the granting Party, and under which the
granting Party is able to grant the other Party a license of the scope set
forth in this Section 6.3 without incurring any obligation to provide any
consideration to any third party, to Use the Technology of the granting Party
solely to the extent necessary to permit the other Party to perform such
research and development activities. For the avoidance of doubt, such license
does not include any rights to conduct any commercial activity (including,
without limitation, with respect to the results of any such research and
development activities) or any other activity other than the performance of
such research and development activities.
7. Cost Sharing; Payment
7.1 Annual Budget Cost-Sharing. In partial consideration of the
research and development services to be performed by FDTC and the rights granted
to AUO hereunder, AUO shall pay to FDTC * .
7.2 Prototyping Cost-Sharing. In addition to the amounts for
which AUO is responsible pursuant to Section 7.1, AUO shall pay to FDTC
* . Costs off any prototyping not expressly designated
as part of a Joint Project by the R&D Committee will be borne solely by the
Party for whom such prototyping is performed.
7.3 Payments. AUO will make all payments for which it is liable
hereunder on a calendar quarterly basis. AUO shall pay to FDTC the amounts due
with respect to a given quarter on or before the twenty-fifth (25th) day of the
first month of such quarter. All amounts due hereunder shall be paid by wire
transfer of Yen in immediately available funds to such financial institution
and account number as FDTC may designate in writing to AUO from time to time.
7.4 Late Payments. If AUO fails to make any payment on or before
the required payment date and fails to cure its non-payment within fifteen (15)
days after receiving notice from FDTC, AUO shall be liable for interest on such
payment at the rate of ten percent (10%) per annum or the maximum amount
allowed by Applicable Law, whichever is less.
7.5 Taxes. Any payments made by AUO to FDTC hereunder are net and
exclusive of all taxes imposed by the taxation authorities of the Republic of
China. AUO shall pay or reimburse FDTC for all sales, use, value added,
withholding or other taxes (excluding only taxes based on FDTC's net income)
imposed by the taxation authorities of the Republic of China. If AUO is
required by Applicable Law to deduct or withhold any taxes, levies, imposts,
fees,
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* Certain information on this page has been omitted and filed
separately with the Commission. Confidential treatment has been requested with
respect to the omitted portions.
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assessments, deductions or charges from or in respect of any amounts
payable hereunder to FDTC, (a) AUO shall make such payment prior to the date on
which interest or penalty is attached thereto and (b) the amounts, payable
hereunder shall be increased as may be necessary so that after AUO makes all
required deductions or withholdings, FDTC shall receive amounts equal to the
amounts it would have received had no such deductions or withholdings been
required. Alternatively, if FDTC is able to claim a tax credit in Japan for any
amount of tax withheld or paid by AUO to the relevant tax authority of the
Republic of China, FDTC shall, at its option, (i) pay or reimburse for arty
amount so withheld or paid or (ii) allow AUO to set off such amount against the
payment of its portion of the Annual Budget.
7.6 Additional Assistance. In the event that AUO requests, and
FDTC agrees to provide, assistance beyond that set forth in any Annual Budget,
the engineering service fees to be paid by AUO for such assistance will be
separately agreed by the Parties as a condition to FDTC's providing such
additional assistance. For the avoidance of doubt, in no event shall FDTC be
required to provide any assistance beyond that set forth in any Annual Budget.
8. Rights in Developed Technology
8.1 Joint Ownership. FDTC and AUO shall jointly own, in equal,
undivided shares (and each Party hereby assigns and agrees to assign to the
other Party an equal, undivided interest in), all right, title and interest in
the Developed Technology (whether developed in whole or in part by the Party
undertaking the relevant Joint Project) and all Intellectual Property Rights in
or to the Developed Technology, and title to all Patents, Copyrights, mask work
rights and other applicable statutory Intellectual Property Rights issued
thereon shall be joint. Except as expressly set forth in this Agreement, each
Party shall have the unrestricted right to Use the Developed Technology and to
license any third party to Use the Developed Technology without the consent of
the other Party, and without any duty to account to or to share proceeds with
the other Party on account of such Use or licensing of the Developed
Technology; provided, however, that, if the subject of such license is jointly
owned Patents issued on the Developed Technology, the Parties will first meet
and discuss in good faith how to maximize the Parties' respective interests and
how to minimize adverse effects on the Parties with due consideration for the
other Party's interests.
8.2 Cooperation of the Parties in Filings. The Parties shall
cooperate in Filings, and share equally expenses with respect thereto. All
Filings shall be made at a time when, appropriate during the development or
after the completion of an item of Developed Technology under the names of both
Parties as joint owners. FDTC shall have the primary administrative
responsibility for Filings, and FDTC and AUO shall share equally all filing and
attorneys' fees incurred by FDTC in connection therewith (including allocated
in-house attorney expenses). As used herein, "administrative responsibility"
means the physical preparation of any documents required for a Filing, and the
submission thereof to the appropriate Governmental Authority. If FDTC submits a
proposed Filing to AUO
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for review, and if AUO does not believe a Filing should be made with respect
thereto, FDTC may proceed with the preparation and submission of the Filing at
FDTC's expense. If AUO has not yet received a proposed Filing from FDTC on an
item of Developed Technology, and AUO believes that a Filing should be made
with respect thereto, AUO may submit a written request to FDTC that FDTC
proceed with the preparation of such Filing; provided, however, that FDTC may,
at its sole discretion, proceed or decline to proceed with the preparation of
such Filing. If FDTC declines to prepare and submit a Filing, AUO may proceed
with the preparation and submission of such Filing at AUO's expense. In either
case, a Party preparing a Filing shall submit such Filing to the other Party
for its review and approval prior to any submission to any Governmental
Authority. A Filing shall be deemed approved by the receiving Party if the
receiving Party does not provide a written notice of rejection to the
submitting Party within fifteen (15) days after receipt of the submitting
Party's notice thereof. In the event that a Party rejects a Filing, it shall
include with its rejection notice a detailed description of its reason(s) for
rejection, and shall make specific suggestions as to any modifications which it
believes should be made to the form or content of such Filing prior to
submission. If the submitting Party believes that the modifications suggested
by the receiving Party are inappropriate, the submitting Party shall contact
the receiving Party, and the Parties shall arrange and hold a meeting or
discussion between appropriate representatives of the Parties, at a mutually
acceptable time and place, in order to determine a mutually acceptable form,
content and time for the proposed Filing. In the event that the Parties fail to
reach agreement as to the form, content and timing of the proposed Filing,
within thirty (30) days of such meeting or discussion, the submitting Party
will be free to proceed with the Filing, incorporating any modifications of the
receiving Party that the submitting Party deems appropriate in its reasonable
discretion. Each Party shall promptly provide the other Party with copies of
any correspondence, materials or other communications submitted to or received
from a Governmental Authority or third party relating to any Filing.
8.3 Further Cooperation. Each Party shall take all steps
necessary to convey to the other Party joint ownership rights in the Developed
Technology and, subject to Section 10, to establish, evidence, maintain, defend
and enforce the Intellectual Property Rights therein. Each Party shall give the
other Party all reasonable assistance in obtaining such proprietary rights
protection and in preparing and prosecuting any Patent, Copyright, mask work or
other Filing or relevant application made by the other Party, and shall cause
to be executed assignments and all other instruments and documents as the other
Party may consider necessary or appropriate to carry out the intent of this
Section 8.
8.4 Pre-Existing IP.
(a) As between FDTC and AUO, FDTC is and shall remain the sole
owner of all right, title and interest in and to all Intellectual Property
Rights (i) owned by FDTC as of the Effective Date and (ii) arising out of or
relating to research and development activities performed by FDTC separate and
apart from
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any Joint Project, and nothing contained herein shall be construed to grant to
AUO any right, title or interest in and to such pre-existing or separate
Intellectual Property Rights. For the avoidance of doubt, the provisions of
this Section 8.4(a) do not alter the Parties' respective rights and obligations
pursuant to the Patent and Technology License Agreement, including, without
limitation, AUO's rights and obligations pursuant to Section 2 of the Patent
and Technology License Agreement.
(b) As between FDTC and AUO, AUO is and shall remain the sole
owner of all right, title and interest in and to all Intellectual Property
Rights (i) owned by AUO as of the Effective Date and (ii) arising out of or
relating to research and development activities performed by AUO separate and
apart from any Joint Project, and nothing contained herein shall be construed
to grant to FDTC any right, title or interest in and to such pre-existing or
separate Intellectual Property Rights.
8.5 No Other Rights. Except as otherwise expressly provided
herein, nothing in this Agreement shall be deemed to grant to either Party,
directly or by implication, estoppel or otherwise, any right or license with
respect to any Technology or other Intellectual Property Rights.
9. Confidential Information
9.1 Obligations. The Parties acknowledge and agree that all
proprietary or nonpublic information disclosed by one Party (the "Disclosing
Party") to the other party (the "Receiving Party") in connection with this
Agreement, directly or indirectly, which information is (a) marked as
"proprietary" or "confidential" or, if disclosed orally, is designated as
confidential or proprietary at the time of disclosure and reduced in writing or
other tangible (including electronic) form that includes a prominent
confidentiality notice and delivered to the Receiving Party within thirty (30)
days of disclosure, or (b) provided under circumstances reasonably indicating
that it constitutes confidential and proprietary information, constitutes the
confidential and proprietary information of the Disclosing Party ("Confidential
Information"). For the avoidance of doubt, any development plans of a Party
submitted to the R&D Committee pursuant to Section 4.1 will constitute
Confidential Information of the submitting Party. The Receiving Party may
disclose Confidential Information only to those employees who have a need to
know such Confidential Information and who are bound to retain the
confidentiality thereof under provisions (including, without limitation,
provisions relating to nonuse and nondisclosure) no less restrictive than those
required by the Receiving Party for its own confidential information. The
Receiving Party shall, and shall cause its employees to, retain in confidence
and not disclose to any third party (including any of its sub-contractors) any
Confidential Information without the Disclosing Party's express prior written
consent, and the Receiving Party shall not use such Confidential Information
except to exercise the rights and perform its obligations under this Agreement.
Without limiting the foregoing, the Receiving Party shall use at least
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the same procedures and degree of care which it uses to protect its own
confidential information of like importance, and in no event less than
reasonable care. The Receiving Party shall be fully responsible for compliance
by its employees with the foregoing, and any act or omission of an employee of
the Receiving Party shall constitute an act or omission of the Receiving Party.
The confidentiality obligations set forth in this Section 9.1 shall apply and
continue, with regard to all Confidential Information disclosed hereunder,
during the term of this Agreement and for a period of five (5) years from the
date of termination of this Agreement.
9.2 Exceptions. Notwithstanding the foregoing, Confidential
Information will not include information that: (a) was already known by the
Receiving Party, other than under any obligation of confidentiality to the
Disclosing Party, at the time of disclosure hereunder, as evidenced by the
Receiving Party's tangible (including written or electronic records in
existence at such time; (b) was generally available to the public or otherwise
part of the public domain at the time of its disclosure to the Receiving Party
hereunder; (c) became generally available to the public or otherwise part of
the public domain after its disclosure other than through any act or omission
of the Receiving Party in breach of this Agreement; (d) was subsequently
lawfully disclosed to the Receiving Party by a Person other than the Disclosing
Party not subject to any duty of confidentiality with respect thereto; or (e)
was developed by the Receiving Party without reference to any Confidential
Information disclosed by the Disclosing Party, as evidenced by the Receiving
Party's tangible (including written or electronic) records in existence at such
time.
9.3 Confidentiality of Developed Technology. Each Party agrees,
except as otherwise provided in this Agreement, to (a) retain in confidence the
Developed Technology, (b) restrict the use of and access to Developed
Technology to employees of such Party and its Affiliates to whom disclosure is
necessary in connection with the Use thereof permitted under this Agreement,
(c) cause each employee to whom any such disclosure is made to hold Developed
Technology in confidence, and (d) not sell, lease, assign, transfer or
otherwise disclose Developed Technology to any third party, except Affiliates
in accordance with this Section 9.3 or except in accordance with Section 8.
Notwithstanding the foregoing, either Party may disclose Developed Technology
(i) to agents or consultants of such Party and its Affiliates and (ii) to
distributors, licensees, customers, clients, business partners and other third
parties to the extent necessary to Use, license, or exercise rights with
respect to Developed Technology as permitted hereunder, in the case of each of
clauses (i) and (ii), under the terms and conditions of a written, signed
confidential disclosure agreement with terms and conditions that prohibit
disclosure to third parties and that are otherwise at least as restrictive as
the terms of sub sections (a) - (d) of this Section 9.3; provided, however,
that such confidential disclosure agreements shall not be required from
customers of a Party solely due to the purchase, lease or access by such
customers of or to products embodying Developed Technology. Without limiting
the
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foregoing, each Party agrees that it shall treat the Developed Technology
with at the least the same degree of care as it would as other highly
proprietary information, and in no event less than reasonable care.
9.4 Confidentiality of Agreement; Publicity. Each Party agrees
that the terms and conditions of this Agreement shall be treated as
Confidential Information and that no reference shall be made thereto without
the prior written consent of the other Party (which consent shall not be
unreasonably withheld) except (a) as required by Applicable Law including,
without limitation, by the U.S. Securities and Exchange Commission and the
Republic of China Securities and Futures Commission (collectively, the "SEC")
and Japanese or Republic of China Governmental Authorities, provided that in
the case of any filing with a Governmental Authority that would result in
public disclosure of the terms hereof, the Parties shall mutually cooperate to
limit the scope of public disclosure to the greatest extent possible (and in
connection therewith and without limitation of the foregoing, AUO shall give
due consideration to any request made by Fujitsu or FDTC regarding confidential
treatment of provisions of this Agreement or any related filing proposed to be
made by AUO with the SEC or other Governmental Authority), (b) to its
accountants, banks, financing sources, lawyers and other professional advisors,
provided that such parties undertake in writing (or are otherwise bound by
rules of professional conduct) to keep such information strictly confidential,
(c) in connection with the enforcement of this Agreement, (d) in connection
with a merger, acquisition or proposed merger or acquisition involving such
Party, provided that the potential merger partner or acquiror prior to receipt
thereof undertakes in writing to keep such information strictly confidential,
or (e) pursuant to agreed joint press releases prepared in good faith. The
Parties will consult with each other, in advance, with regard to the terms of
all proposed press releases, public announcements and other public statements
with respect to the transactions contemplated hereby.
10. Patent and Copyright Infringement Claims
10.1 Infringement of Developed Technology. AUO and FDTC shall
notify each other in writing of any potential or actual infringement or
misappropriation (of which it has or obtains knowledge) anywhere in the world
by any third party of any Intellectual Property Right in or to any Developed
Technology, and shall provide each other with any available evidence of such
infringement or misappropriation The Parties shall jointly take all reasonable
steps necessary to enjoin and prevent such infringement or misappropriation,
including, without limitation, the institution and maintenance of legal or
equitable proceedings, and shall promptly execute all papers and perform such
other acts as may be reasonably required to join in any such suit, action or
proceeding; provided, however, a Party may, at its option, be represented by
counsel of its choice in any such suit, action or proceeding. Upon joining any
such suit, action or proceeding, each Party shall pay the fees of its own
separate counsel (if any) and shall bear fifty percent (50%) of all other
reasonable costs incurred in connection with such suit, action or proceeding,
unless otherwise agreed. If a
14
Party, in its sole discretion, concludes that the steps necessary to enjoin
such infringement or misappropriation are not economically or strategically
justifiable under the circumstances, it may decline to join in any action
proposed or taken by the other Party; provided, however, that if the other
Party determines that it shall proceed in such action, the declining Party
shall provide all reasonable assistance and information, at the sole cost and
expense of the other Party, to the other Party in support of such action. With
respect to any amount recovered in any suit, action or proceeding brought by
the Parties jointly (whether recovered through judgment or settlement), such
amount shall be allocated to AUO and FDTC, pro-rata, based on the proportion of
the costs and expenses actually paid by each Party in connection with the
prosecution and/or settlement of such suit action or proceeding. With respect
to any amount recovered by a Party individually pursuing any suit, action or
proceeding (due to the other Party's declining to participate in such suit,
action or proceeding), such amount shall inure solely to the benefit of such
Party. Neither Party may settle any action, suit or proceeding brought and
prosecuted jointly under this Section 10.1 without the consent of the other
Party; provided, however, that no consent of the other Party shall be required
for a suit, action or proceeding brought or prosecuted individually by a Party
due to the other Party's declining to participate in such suit, action or
proceeding. If a suit, action or proceeding is brought and prosecuted by a
Party individually due to the other Party's declining to participate in such
suit, action or proceeding, the non-prosecuting Party shall not grant a license
to or for the benefit of a third party that is alleged in such suit, action or
proceeding to be infringing or misappropriating proprietary rights relating to
the Developed Technology if such license would have a material effect on such
suit, action or proceeding.
10.2 Third Party Claims of Infringement Relating to Developed
Technology. Each Party agrees to promptly notify the other Party in writing
upon becoming aware of any suit, action or proceeding brought against it by any
third party that is based on a claim that the Developed Technology infringes or
misappropriates any Intellectual Property Right of any third party. In addition
to the rights of FDTC under Section 11, the Parties may, upon mutual agreement,
cooperate in the defense against such action, suit or proceeding, and in such
case shall promptly execute all papers and perform such other acts as may be
reasonably required to join in such defense. In any event, each Party shall
provide all reasonable assistance and information to the other Party in support
thereof.
11. Representations and Warranties; Indemnification
11.1 Mutual Representations and Warranties. Each Party represents
and warrants to the other Party that it has the power and authority to enter
into this Agreement and to perform its obligations hereunder, that this
Agreement is binding on and enforceable against such Party in accordance with
its terms, subject to laws of general application relating to bankruptcy,
insolvency and the relief of debtors and other laws of general application
affecting enforcement of creditors' rights generally, and that compliance by
such Party with its obligations
15
hereunder shall not conflict with or result in a breach of any agreement to
which such Party is a party or is otherwise bound.
11.2 No Implied Warranties. EACH PARTY HEREBY EXPRESSLY DISCLAIMS
ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE DEVELOPED
TECHNOLOGY IT DEVELOPS AND ANY OTHER SUBJECT MATTER OF THIS AGREEMENT,
INCLUDING BUT NOT LIMITED TO THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, AND THE WARRANTY THAT THE DEVELOPED TECHNOLOGY IT DEVELOPS
DOES NOT AND WILL NOT INFRINGE ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD
PARTIES. FURTHERMORE, EACH PARTY PROVIDES THE OTHER PARTY WITH ITS CONFIDENTIAL
INFORMATION ON AN "AS IS" BASIS, AND DOES NOT MAKE ANY WARRANTIES, WHETHER
EXPRESS, IMPLIED OR OTHERWISE, CONCERNING SUCH CONFIDENTIAL INFORMATION,
INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, OR WARRANTIES OF FREEDOM FROM ERRORS OR DEFECTS.
11.3 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR (A) ANY INDIRECT, SPECIAL OR CONSEQUENTIAL
DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF
CONTRACT, IN TORT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF BUSINESS, LOSS
OF DATA AND/OR INTERRUPTION OF BUSINESS, OR (B) ANY CLAIM AGAINST THE OTHER
PARTY BY ANY THIRD PARTY, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DEVELOPED TECHNOLOGY, EVEN IF A
PARTY HAS BEEN ADVISED OF TIE POSSIBILITY OF ANY SUCH DAMAGES OR CLAIM. EXCEPT
WITH RESPECT TO (A) EACH PARTY'S RESPECTIVE CONFIDENTIALITY OBLIGATIONS
PURSUANT TO SECTION 9, (B) EACH PARTY'S RESPECTIVE INDEMNIFICATION OBLIGATIONS
PURSUANT TO SECTION 11.4 AND (C) ANY ACCRUED BUT UNPAID PAYMENT OBLIGATIONS
PURSUANT TO SECTION 7, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER
PARTY, ITS AFFILIATES, AND ANY OF ITS OR THEIR DIRECTORS, OFFICERS, EMPLOYEES
AND AGENTS FOR ANY CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS
AGREEMENT EXCEED FIFTY PERCENT (50%) OF THE ANNUAL BUDGET FOR THE YEAR IN WHICH
THE CAUSE OF SUCH CLAIM AROSE.
11.4 Indemnity. Each Party (in such capacity, the "Indemnifying
Party"), shall at its own expense defend any claim, action or allegation
brought against the other Party or its Affiliates, officers, directors,
employees,
16
shareholders, consultants and agents (collectively, "Indemnified Parties") to
the extent it relates to or results from (a) any material breach by the
Indemnifying Party of any obligation, representation or warranty set forth in
this Agreement, (b) any grossly negligent act or omission of or willful
misconduct by, the Indemnifying Party in connection with its Use of any
Developed Technology or use, practice or exploitation of the Indemnified
Party's Confidential Information, or (c) any gross negligence or willful
misconduct of the Indemnifying Party in the conduct of its business
(collectively, clauses (a), (b) and (c) constituting "Claims"). The
Indemnifying Party shall pay and shall indemnify and hold each Indemnified
Party harmless from any losses, liability, damages, costs or expenses
attributable to such Claim or, subject to the Indemnified Party's prior
approval, awarded, imposed or incurred in connection with a settlement or other
similar agreement entered into as a result of such Claim. The Indemnified Party
agrees to give prompt written notice to the Indemnifying Party of any Claim and
to provide the Indemnifying Party with such reasonable assistance and
information, at the Indemnifying Party's expense, as the Indemnifying Party may
reasonably require to defend against such Claim. The Indemnified Party shall
have the right, but not the obligation, to participate in the defense of any
Claim, at the Indemnified Party's expense, with counsel of the Indemnified
Party's choice.
12. Term; Termination
12.1 Term. This Agreement shall commence on the Effective Date,
and shall continue in full force and effect until terminated in accordance with
this Section 12.
12.2 Termination for Breach. In the event that either Party
materially defaults in the performance of a material obligation under this
Agreement, then the non defaulting Party may provide written notice to the
defaulting Party indicating: (i) the nature and basis of such default with
reference to the applicable provisions of this Agreement; and (ii) the
non-defaulting Party's intention to terminate this Agreement. In the event that
such material default is not cured within thirty (30) days after receipt of
such notice, the non-defaulting Party may terminate this Agreement upon written
notice to the breaching Party.
12.3 Termination for Delay Initial Closing. Either Party shall
have the right to terminate this Agreement immediately by giving written notice
of termination to the other Party in the event that the Initial Closing does
not occur on or prior to April 1, 2003.
12.4 Failure to Purchase Additional Shares. In the event that AUO
fails to purchase the Additional Shares in accordance with the Stock Purchase
Agreement within twenty-six (26) months after the first anniversary of the
Initial Closing, upon the written request of any Party, the Parties shall
promptly discuss in good faith amendments to the terms and conditions of this
Agreement.
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12.5 Cross-Termination. Unless otherwise expressly agreed in
writing by the Parties, this Agreement shall automatically terminate upon the
termination of any other Transaction Document.
12.6 Termination for Insolvency, Certain Actions. Each Party shall
have the right to terminate this Agreement immediately by giving written notice
of termination to the other Party at any time, upon or after: (a) the filing by
the other Party of a petition in bankruptcy or insolvency; (b) any adjudication
that the other Party is bankrupt or insolvent; (c) the filing by the other
Party of any legal action or document seeking reorganization, readjustment or
arrangement of the other Party's business under Applicable Law relating to
bankruptcy or insolvency; (d) the appointment of a receiver for all or
substantially all of the property of the other Party; (e) the making by the
other Party of any assignment for the benefit of creditors; (f) the institution
of any proceedings for the liquidation or winding up of the other Party's
business or for the termination of its corporate charter. In addition, FDTC
shall have the right to terminate this Agreement immediately by giving written
notice of termination to AUO at any time, upon or after any activity or
assistance by AUO challenging the validity of the Licensed Patents or
restricting the scope thereof.
12.7 Termination for Change of Control. FDTC shall also have the
right to terminate this Agreement immediately by giving written notice of
termination to AUO at any time, upon or after (a) AUO's consolidation with or
merger with or into another entity, provided that any Person and its Affiliates
hold in the aggregate more than one-third (1/3) of equity ownership interest in
AUO upon consummation of such transaction or series of transactions, or (b)
AUO's sale or other disposition of, or entering into an agreement or commitment
to sell or otherwise dispose of all or substantially all of its assets to a
third party.
12.8 Effect of Termination. The terms and conditions of the
following Sections will survive termination of this Agreement: 1, 2.2, 2.3, 7,
8 (excluding the Parties' obligation pursuant to Section 8:1 to meet and
discuss prior to licensing Developed Technology to a third party), 9 (in
accordance with its terns), 10, 11, 12.8, 13 and 14. In addition, the
expiration or termination of this Agreement shall not relieve either Party of
any liability that accrued prior to such termination. Except as expressly
provided in this Section 12.8, all other provisions of this Agreement shall
terminate upon the expiration or termination hereof. Upon any expiration or
termination of this Agreement by either Party, the Receiving Party will
immediately cease using and return, or at the Disclosing Party's written
request destroy (and promptly provide the Disclosing Party with written
confirmation of such destruction, signed by an officer of the Receiving Party
who has supervised such destruction), all representations of Confidential
Information in its possession custody or control in whichever form held
(including, without limitation, all documents or media (including, without
limitation, electronic media) containing any of the foregoing and all copies,
extracts or embodiments thereof).
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13. Export
Notwithstanding any rights, license or privileges specified in this
Agreement, each Party agrees that it shall not export any Technology provided
by the other Party hereunder or jointly developed hereunder, or any part
thereof, either directly or indirectly, without first obtaining any required
licenses, permits or approvals to so export from appropriate Governmental
Authorities, and further agrees that it shall comply with all laws, rules and
regulations applicable to the export or re-export of such Technology,
including, without limitation, the foreign Exchange and Foreign Trade Act and
Export Trade Control Order of Japan. In connection with the foregoing, the
Parties acknowledge that the Developed Technology may be subjected to
restrictions on export or re-export imposed by the Ministry of Economy, Trade
and Industry of Japan (METI).
14. General Provisions
14.1 Language. This Agreement is in the English language only,
which language shall be controlling in all respects, and all versions hereof in
any other language shall be for accommodation only and shall not be binding
upon the Parties. All communications and notices to be made or given pursuant
to this Agreement shall be in the English language
14.2 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of Japan, without regard to the
conflicts of law principles thereof.
14.3 Successors and Assigns. Except as expressly provided herein,
the rights and obligations hereunder may not be assigned or delegated by FDTC
or AUO without the prior written consent of the other Party. Any purported
assignment, sale, transfer, delegation or other disposition of such rights or
obligations by either Party, except as permitted herein, shall be null and
void. Subject to the foregoing, this Agreement shall be binding upon and shall
inure to the benefit of the Parties and their respective successors and
permitted assigns.
14.4 Entire Agreement; Amendment. This Agreement and the other
Transaction Documents constitute the full and entire understanding and
agreement between the Parties with regard to the subject matter hereof, and
supercede any prior agreements, written or oral, with respect to such subject
matter, including, without limitation the Non-Disclosure Agreement among among
Fujitsu, FDTC and AUO dated November 5, 2002, the Prior License Agreement and
the Technology Transfer Agreement. Any term of this Agreement may be amended
only upon the Parties' written agreement. No failure to exercise and no delay
in exercising any right, power or privilege granted under this Agreement shall
operate as a waiver of such right, power or privilege. No single or partial
exercise of any right, power or privilege granted under this Agreement shall
preclude any other or further exercise thereof or the exercise of any other
19
right, power or privilege. The rights and remedies provided in this Agreement
are cumulative and are not exclusive of any rights or remedies provided by law.
14.5 Notices and Other Communications. Any and all notices,
requests, demands and other communications required or otherwise contemplated
to be made under this Agreement shall be in writing and shall be provided by
one or more of the following means and shall be deemed to have been duly given
(i) if delivered personally, when received, (ii) if transmitted by facsimile,
on the date of transmission with receipt of an error-free transmittal
confirmation, or (iii) if by international courier service, on the third (3rd)
business day following the date of deposit with such courier service, or such
earlier delivery date as may be confirmed in writing to the sender by such
courier service. All such notices, requests, demands and other communications
shall be addressed as follows:
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If to AUO:
Au Optronics Corporation
Xx. 0, Xx-Xxxx Xxxx
Science-Based Industrial Park
Hsinchu 300, Taiwan
Attention: Chief Executive Officer
Telephone: 000-0-000-0000
Facsimile: 886-3-577-2730
If to FDTC:
Fujitsu Display Technologies Corporation
0-0-0 Xxxxxxxxxxxx, Xxxxxxxx-xx
Xxxxxxxx, Xxxxxxxx, Xxxxx
Attention: Chief Executive Officer
Telephone: 00-00-000-0000
Facsimile: 00-00-000-0000
or to such other address or facsimile number as a Party may have specified to
the other Party in writing delivered in accordance with this Section 14.5.
14.6 Severability. If any provision of this Agreement is found to
be invalid or unenforceable, then such provision shall be construed, to the
extent feasible, so as to render the provision enforceable and to provide for
the consummation of the transactions contemplated hereby on substantially the
same terms as originally set forth herein, and if no feasible interpretation
would save such provision, it shall be severed from the remainder of this
Agreement, which shall remain in full force and effect unless the severed
provision is essential to the rights or benefits intended by the Parties. In
such event, the Parties shall use best efforts to negotiate, in good faith, a
substitute, valid and enforceable provision or agreement which most nearly
effects the Parties' intent in entering into this Agreement.
14.7 Dispute Resolution. All disputes between the Parties arising
out of this Agreement will be settled by the Parties amicably through good
faith discussions within sixty (60) days, failing which the dispute will be
finally settled by confidential, binding arbitration using the English language
before a single native English-speaking arbitrator appointed by the Parties.
Any such arbitration will be conducted, if initiated by FDTC, in the Republic
of China by the Arbitration Association of the Republic of China in accordance
with the Arbitration Law of the Republic of China and the Rules for Arbitration
Procedures of the Arbitration Association of the Republic of China or, if
initiated by AUO, in Japan in accordance with the Commercial Arbitration Rules
of the Japan Commercial Arbitration Association. Notwithstanding the foregoing,
either Party shall have the right to institute a legal action in a court of
proper jurisdiction for preliminary injunctive relief and/or a decree for
specific performance pending
21
final settlement by arbitration. The Parties further agree that any arbitral
award rendered by the Arbitration Association of the Republic of China in
accordance with this Section 14.7 will not require that a court order be
entered to be enforceable and that either Party may enforce such an arbitral
award without obtaining a court order for the enforcement thereof.
14.8 Expenses. Except as otherwise expressly set forth in this
Agreement, each Party will bear its own costs and expenses, including without
limitation, fees and expenses of legal counsel and other representatives used
or hired in connection with the transactions described in this Agreement.
14.9 Attorneys' Fees. If any action or proceeding shall be
commenced to enforce this Agreement or any right arising in connection with
this Agreement, the prevailing Party in such action or proceeding shall be
entitled to recover reasonable attorneys' fees, costs and expenses incurred by
such prevailing Party in connection with such action or proceeding.
14.10 Section References; Titles and Subtitles. Unless otherwise
noted, all references to Sections and Exhibits herein are to Sections and
Exhibits of this Agreement. The titles of the sections and subsections of this
Agreement are for convenience of reference only and are not to be considered in
construing this Agreement.
14.11 Execution. This Agreement maybe executed in two (2)
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument. Execution and delivery of this Agreement by
exchange of facsimile copies bearing the facsimile signature of a Party shall
constitute a valid and binding execution and delivery of this Agreement by such
Party.
14.12 Rights and Remedies. No exercise or enforcement by either
Party of any right or remedy under this Agreement will preclude the enforcement
by such Party of any other right or remedy under this Agreement or that such
Party is entitled by law to enforce.
14.13 No Agency. The Parties are independent contractors. Nothing
contained herein or done pursuant to this Agreement shall constitute any Party
the agent of the other Party for any purpose whatsoever
14.14 Force Majeure. Neither Party will be liable to the other for
failure or delay in performing its obligations hereunder if such failure or
delay is due to circumstances beyond its reasonable control, including, without
limitation, acts of any governmental body, war, terrorism, insurrection,
sabotage, embargo, fire, flood, strike or other labor disturbance, interruption
of or delay in transportations, or unavailability of or interruption or delay
in telecommunications or third party services ("Force Majeure"); provided,
however, that (a) a lack of credit, funds or financing, or (b) strikes or other
labor disturbances that are limited to AUO's employees shall not constitute
Force Majeure.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed and delivered by their respective duly authorized representatives as
of the date-first above written.
Fujitsu Display Technologies Corporation AU Optronics Corporation
By: /s/ Xxxxxxxxx Xxxxxxx By: /s/ X. X. Xxx
--------------------- -------------
Chief Executive Officer Chief Executive Officer
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