EXHIBIT 10.10
[L/CDM/NA/001103/F]
AGREEMENT, dated as of July 1, 2000, between THOMSON MULTIMEDIA
LICENSING INC. (hereinafter called "TML"), a Delaware, U.S.A., corporation
having an office at Two Independence Way, Princeton, New Jersey, U.S.A.,
XXXXX-XXXXXXX ELECTRONICS CORPORATION (hereinafter called "Licensee"),
having an office at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000,
U.S.A.
W I T N E S S E T H:
In consideration of the premises and of the covenants herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For the purposes of this Agreement, the following terms are
defined:
SECTION 1. "Contract Apparatus" means "Color Display Monitors" and
shall include both complete Color Display Monitors as well as such monitors
which are complete except for cabinets or other permanent housings.
SECTION 2.
(a) "Chromatic Colors" means colors such as reds, oranges,
yellows, greens, and blues, as distinguished from the achromatic colors
of black, white and grays.
(b) "Color Cathode Ray Tube" means an Electron Tube in which
electrical impulses are converted into a visible representation thereof
and in which such visible representation may be produced in two or more
Chromatic Colors.
(c) "Color Display Monitor" means color display apparatus designed
or adapted to provide color display of alphanumeric and/or graphic
information from computers, character generators, word processors or
other similar types of equipment. However, the term "Color Display
Monitor" shall not include any apparatus capable of receiving and
processing standard broadcast television signals.
(d) "Electron Tube" means a device comprising two or more
electrodes and an envelope which is to any extent evacuated or contains
gas, vapor or liquid under any degree of pressure, and which operates
by the passage of an electric current through such vacuum, gas or vapor
to change the form of, control or modify energy supplied thereto.
SECTION 3.
(a) (i) "Patents" means letters patent, certificates of utility
and utility models, rights (by license or otherwise) with respect to or
under letters patent, certificates of utility and utility models,
applications for letters patent, certificates of utility and utility
models which have been opened for public inspection, and all reissues,
divisions, continuations and extensions thereof. The term "Patents"
does not include copyrights or trademarks.
(ii) "TML's Patents" means Patents (as hereinabove defined)
owned, controlled and/or acquired by TML at any time during the term of
this Agreement, with respect to which and to the extent to which, and
subject to the conditions under which, TML shall have the right to
grant or cause to be granted licenses to Licensee during the term of
this Agreement.
(b) "Subsidiary" of either party is any corporation (which term
includes any legal entity similar to a corporation), or other kind of
business organization, in which such party now or hereafter has a
"controlling interest". "Controlling interest" means, in the case of a
corporation, direct or indirect ownership or control by such party, at
any time during the term of this Agreement, of that number of the
shares thereof representing the right to elect a majority of the
directors of the corporation or persons performing similar functions;
and, in the case of any other kind of business organization, it means
that direct or indirect ownership or control, at any time during the
term of this Agreement, of the capital thereof, or other interest
therein, by or through which such party exercises, or has the power to
exercise, in any manner, directly or indirectly, control or direction
thereof. Any such corporation or other kind of business organization
shall constitute a Subsidiary only for a period during the term of this
Agreement that such controlling interest exists.
ARTICLE II
LICENSES
SECTION 1. TML hereby grants to Licensee a non-exclusive, non-
transferable, non-assignable, indivisible license, right and privilege under
all of TML's Patents of Canada, Mexico and the United States to make
Contract Apparatus, and a non-exclusive, non-transferable, non-assignable,
and indivisible license, right and privilege under all of TML's Patents of
all countries of the world to use, offer for sale, import, lease or
otherwise dispose of such Contract Apparatus.
SECTION 2. Anything in this Agreement to the contrary notwithstanding,
no license is herein granted, and no act or acts hereunder shall be
construed as or result in conveying any license, to Licensee or to any third
party, expressly or by implication, estoppel or otherwise:
(a) with respect to Color Cathode Ray Tubes; and
(b) other than the licenses herein expressly granted to Licensee
pursuant to Section 1 of this Article II.
SECTION 3. At any time during the term of this Agreement, upon written
request of Licensee, TML agrees to grant or cause to be granted to Licensee,
in a standard form or forms in which TML then grants or causes to be granted
such license or licenses, a non-exclusive license or licenses for the
manufacture of Contract Apparatus under TML's Patents of other countries of
the world.
ARTICLE III
COMPENSATION
SECTION 1. Licensee agrees to pay compensation to TML as follows:
(a) the sum of U.S. $500.00 within thirty (30) days after this
Agreement becomes effective; and
(b) the sum of U.S. $1.25 with respect to each unit of Contract
Apparatus licensed under Article II, Section 1 of this Agreement.
SECTION 2.
(a) Within thirty (30) days after March 31, June 30, September 30
and December 31 of each year during the term of this Agreement,
Licensee shall furnish TML with a written statement specifying the
number of units of Contract Apparatus licensed hereunder and used,
sold, leased or otherwise disposed of by Licensee during the preceding
calendar quarter, and the total net compensation payable with respect
thereto. The first such statement furnished by Licensee to TML shall
include such information for all Contract Apparatus licensed hereunder
and used, sold, leased or otherwise disposed of by Licensee from the
effective date of this Agreement to the last day of the calendar
quarter covered by such statement. At the time of furnishing such
statements, Licensee shall also make the payments prescribed therefor
in Section 1 of this Article III in the manner set forth in Section 5
of this Article III.
(b) A similar statement shall be rendered and payment made to TML
within thirty (30) days after, and as of, the date of any termination
of this Agreement covering the period from the end of that covered by
the last preceding statement to the date of such termination and
including all Contract Apparatus manufactured during the term of this
Agreement, or actually in manufacture upon the date of termination of
this Agreement, and not used, sold, leased or otherwise disposed of
prior to such termination, which Contract Apparatus, for the purpose of
computing the payments to be made under Section 1 of this Article III,
shall be considered as having been used, sold, leased or otherwise
disposed of by Licensee prior to termination of this Agreement.
(c) Contract Apparatus shall be considered as used, sold, leased
or otherwise disposed of, as the case may be, when billed out,
delivered, shipped or mailed to a customer, or when used or set aside
for future use by Licensee, whichever shall first occur.
SECTION 3. Licensee shall keep true and accurate records, files and
books of account containing all the data reasonably required for the full
computation and verification of the amounts to be paid and the information
to be given in the statements provided for herein. Licensee shall, during
usual business hours, permit TML or its duly authorized representatives
adequately to inspect the same for the sole purpose of determining the
amounts payable by Licensee pursuant to Section 1 of this Article III. The
inspections should be limited to one per year and upon 30 days advanced
written notice and inspection by outside auditors or accountants. The
results of these inspections should be held in strict confidence by Licensor
and not be used for any purpose other than to enforce the terms of this
license agreement. In lieu of such inspections by TML or its duly
authorized representatives, Licensee shall have the option to have such
inspections made at Licensee's expense by independent chartered or certified
public accountants mutually acceptable to TML and Licensee (which acceptance
shall not be unreasonably withheld). Such inspections shall be made under
TML's instructions and the results thereof shall be made available to TML
and Licensee when completed. Such option may be exercised at any time
during the term of this Agreement in respect of any period for which an
inspection has not been made to verify the amounts so payable. Exercise of
such option by Licensee shall be in writing.
SECTION 4. Licensee shall pay interest to TML from the date due to the
date of payment upon any and all amounts overdue and payable hereunder at a
rate equal to four percent (4.0%) over the published prime rate of the Chase
Manhattan Bank, New York, New York, as in effect from time to time during
the period that any such amount is overdue.
SECTION 5. All payments hereunder by Licensee to TML shall be made at
such places as TML may direct in writing from time to time without any
deductions for taxes or charges of any kind, which taxes and charges, if
any, are assumed by Licensee. Notwithstanding the foregoing, in the event
such payment is made from, and with respect to Contract Apparatus
manufactured in, a country other than the United States, any tax which may
be imposed on TML by the Government of the country from which payment is
made (or any political subdivision thereof), and required by such Government
or political subdivision to be withheld by Licensee, with respect to the
compensation payable to TML pursuant to Section 1 of this Article III, may
be deducted by Licensee before payment of such compensation; provided,
however, that if any such tax shall be imposed at a rate in excess of the
United States corporation income tax applicable to TML on such compensation
for the taxable period for which such compensation is payable, then Licensee
shall assume the excess of such tax over and above such United States
corporation income tax on such compensation, and shall pay such excess to or
for the account of TML; and provided, further, that Licensee shall furnish
TML with certified statements and receipts and with such other supporting
data as may be required by the United States Tax Authorities to establish
that any such tax has been withheld.
ARTICLE IV
TERM AND TERMINATION
SECTION 1. This Agreement shall be effective from the date first above
written and shall continue in effect, unless sooner terminated as elsewhere
provided in this Agreement, until June 30, 2005.
SECTION 2.
(a) If Licensee shall at any time default in rendering any of the
statements which may be required hereunder, or in the payment of any
monies which may be due hereunder, or in fulfilling any of the other
obligations or conditions hereof, and such default shall not be cured
within thirty (30) days after written notice from TML to Licensee
specifying the nature of the default, TML shall have the right to
terminate this Agreement by giving written notice of termination to
Licensee, and this Agreement shall terminate upon the giving of such
notice.
(b) TML shall also have the right, to the full extent permitted by
law, to terminate this Agreement by giving written notice of
termination to Licensee at any time upon or after the filing by
Licensee of a petition in bankruptcy or insolvency, or upon or after
any adjudication that Licensee is bankrupt or insolvent, or upon or
after the filing by Licensee of any petition or answer seeking
reorganization, readjustment or arrangementof the business of Licensee
under any law relating to bankruptcy or insolvency, or upon or after
the appointment of a receiver for all or substantially all of the
property of Licensee, or upon or after the making by Licensee of any
assignment or attempted assignment for the benefit of creditors, or
upon or after the institution of any proceedings for the liquidation or
winding up of Licensee's business or for the termination of its
corporate charter, and this Agreement shall terminate upon the giving
of such notice.
(c) In the event of the direct or indirect taking over, or
assumption of control, of Licensee by any superior authority, TML shall
have the right to terminate this Agreement at any time thereafter upon
giving written notice thereof to Licensee, and upon the giving of such
notice of termination this Agreement shall terminate forthwith.
SECTION 3. Upon termination of this Agreement, by expiration or
otherwise, all licenses, rights and obligations hereunder shall cease and
determine except that the licenses granted under Section 1 of Article II
hereof shall continue as to all specific units of Contract Apparatus
manufactured by Licensee during the term of this Agreement, or actually in
manufacture on the date of termination of this Agreement, for the full terms
of the Patents under which such Contract Apparatus is licensed hereunder to
be made and used, sold, leased or otherwise disposed of, and except that no
termination of this Agreement, by expiration or otherwise, shall release
Licensee from any of its obligations accrued hereunder (including its
obligations to furnish statements, to pay compensation, and permit
inspection of its records, files, and books of account, with respect to
Contract Apparatus manufactured during the term of this Agreement by
Licensee), or rescind anything done or any payment made or other
consideration given to either party hereunder, prior to the time such
termination becomes effective.
SECTION 4. No failure or delay on the part of TML in exercising its
right of termination hereunder for any one or more defaults shall be
construed to prejudice its right of termination for such or for any other or
subsequent default.
ARTICLE V
FORCE MAJEURE
Anything contained in this Agreement to the contrary notwithstanding,
if a party is prevented from performing any of its obligations hereunder by
laws, orders, regulations and directions of any Government having
jurisdiction over the parties hereto, or any department, agency, corporation
or court thereof, or by war, acts of public enemies, strikes or other labor
disturbances, fires, floods, acts of God, or any causes of like or different
kind beyond the control of either party, then, except as hereinafter
provided in this Article V, such party shall be excused from any failure to
perform any such obligation to the extent such failure is caused by any such
law, order, regulation, direction or contingency. If Licensee is prevented
by any such law, order, regulation, direction or contingency (each of which
is hereinafter referred to as a "mandatory restriction") from furnishing the
statements or making the payments provided for in Article III of this
Agreement at the times and in the manner prescribed by such Article III, all
such statements not furnished and payments not made during the continuance
of any such mandatory restriction shall be furnished and made immediately
upon the discontinuance of such mandatory restriction.
ARTICLE VI
FURTHER ASSURANCES, NOTICES
AND MISCELLANEOUS PROVISIONS
SECTION 1.
(a) This Agreement shall be binding upon and inure to the benefit
of the Subsidiaries and successors of Licensee and TML and the assigns
of TML. It shall not be assignable by Licensee, in whole or in part,
to any other party whatsoever, nor shall the rights herein of Licensee
otherwise be or become in any way, directly or indirectly, transferable
or available to, or divisible or capable of being shared with, or inure
to the benefit of, any other party without the prior written consent of
TML, which consent shall not be unreasonably withheld.
(b) Licensee shall be responsible for, and hereby assumes full
liability in respect of, all royalty reports and payments for all
Contract Apparatus made and used, sold, leased or otherwise disposed of
by its Subsidiaries and Licensee shall take all actions necessary to
cause its Subsidiaries to comply with their obligations under this
Agreement. Within thirty (30) days after written request therefor by
TML, Licensee shall supply TML with a complete list in writing of its
Subsidiaries engaged, as of the date of the request from TML, in the
manufacture and sale of Contract Apparatus and shall thereafter notify
TML in writing of any changes therein within thirty (30) days after
each such change.
SECTION 2. TML shall not be held responsible by Licensee for the
validity of any of TML's Patents or for the termination of any such Patents
should such Patents be terminated for any cause whatsoever, and TML shall
not be required to secure any Patent or Patent rights.
SECTION 3. Nothing contained in this Agreement shall be construed as
imposing on either party any obligation, or as conferring on Licensee any
right, to institute any suit or action for infringement of any of TML's
Patents, or to defend any suit or action brought by a third party which
challenges or concerns the validity of any of TML's Patents.
SECTION 4. It is expressly agreed by the parties that all matters
relating to the construction and interpretation of this Agreement shall be
construed, and that the legal relations hereunder between the parties shall
be determined, according to the laws of the State of New York, U.S.A.,
exclusive of the choice of law provisions.
SECTION 5. Any notice or request required or permitted to be given
under or in connection with this Agreement or the subject matter hereof
shall be deemed to have been sufficiently given when, if given to TML, it
shall be addressed to THOMSON multimedia Licensing Inc., at its postal
address: X.X. Xxx 0000, Xxxxxxxxx, Xxx Xxxxxx 00000-0000, X.X.X., or its
courier address: Two Xxxxxxxxxxxx Xxx, Xxxxxxxxx, Xxx Xxxxxx 00000, U.S.A.,
and when, if given to Licensee, it shall be addressed to Licensee at its
address set forth on the first page hereof, and in each case either
delivered at such address to an officer of the party to which given, or sent
by registered airmail. If mailed, the date of mailing shall be deemed to be
the date on which such notice or request has been given. Either party may
be given written notice of a change of address and, after notice of such
change has been received, any notice or request shall thereafter be given to
such party as above provided at such changed address.
SECTION 6. This Agreement sets forth the entire agreement and
understanding between the parties as to the subject matter hereof and merges
all prior discussions and negotiations between them, and neither of the
parties shall be bound by any conditions, definitions, warranties,
understandings or representations with respect to such subject matter other
than as expressly provided herein or as duly set forth on or subsequent to
the date hereof in writing and signed by a proper and duly authorized
officer or representative of the party to be bound thereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized officers or representatives as of the day
and year first above written.
THOMSON MULTIMEDIA XXXXX-XXXXXXX
LICENSING INC. ELECTRONICS CORPORATION
By: By:
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Date: Date:
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Witness: Witness:
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[L/CDM/NA/001103/F]
XXXXX-XXXXXXX
ELECTRONICS CORPORATION
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
U.S.A.
Gentlemen:
Reference is made to the agreement between THOMSON multimedia Licensing
Inc. ("TML") and your company ("Licensee") which relates to Color Display
Monitors, is effective July 1, 2000, and identified by the symbol
[L/CDM/NA/001103/F] ("Agreement").
Notwithstanding the provisions of Article III, Section 1 of the Agreement,
the compensation payable to TML with respect to each unit of Contract
Apparatus which is licensed under the Agreement and which is an "Analog
Color Display Monitor" shall be U.S. $0.50. For the purposes of this
letter, the term "Analog Color Display Monitor" shall mean a Color Display
Monitor which does not utilize a digitally controlled chassis employing a
microprocessor.
Except as otherwise provided herein, all of the provisions, terms and
conditions of the Agreement shall remain unchanged.
Very truly yours,
THOMSON MULTIMEDIA
LICENSING INC.
Agreed to and Accepted by:
By:
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XXXXX-XXXXXXX ELECTRONICS
CORPORATION
Date:
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By:
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Date:
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[L/CDM/NA/001103/F]
Xxxxx-Xxxxxxx Electronics Corporation
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
U.S.A.
Gentlemen:
Reference is made to the agreement between THOMSON multimedia Licensing
Inc. ("TML") and your company ("Licensee") which relates to Color Display
Monitors, is effective July 1, 2000, and identified by the symbol
[L/CDM/NA/001103/F] ("Agreement").
TML and Licensee hereby agree as follows:
1. Inspections performed under the provisions of Article III, Section
3 of the Agreement shall be performed by outside auditors engaged by TML;
shall be limited to one inspection per calendar year and shall be performed
only upon thirty days written notice to Licensee. TML agrees to hold the
results of such inspections in confidence, subject to legal and regulatory
requirements.
2. TML agrees that it will exercise its right to receive interest
from Licensee under the provisions of Article III, Section 4 of the
Agreement only in those instances where the amounts overdue and payable
with respect to any particular calendar quarter exceed 5% of the total
amount payable with respect to such calendar quarter.
3. Notwithstanding the provisions of Article IV, Section 1 of the
Agreement, the Agreement shall renew automatically for a one year term upon
its expiration, provided that Licensee is not then in material breach of
the Agreement; unless TML shall have provided written notice to Licensee of
its intent not to renew the Agreement at least six months prior to such
expiration.
Except as otherwise provided herein, all of the provisions, terms and
conditions of the Agreement shall remain unchanged.
Very truly yours,
THOMSON MULTIMEDIA
LICENSING INC.
Agreed to and Accepted by:
By:
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XXXXX-XXXXXXX ELECTRONICS
CORPORATION
Date:
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By:
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Date:
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