EXHIBIT 10.1
Manufacturing and Supply Agreement
This Manufacturing and Supply Agreement ("Agreement") is dated as of
March 28, 2001 and is between Amerigon Incorporated, a California corporation,
with offices located at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000
("Amerigon") and FerrotecCorporation, with offices located at Sumitomo Xxxx. #0,
0-00-0 Xxxxxxx Xxxx, Xxxxx-xx, Xxxxx 000, Xxxxx ("Ferrotec").
I. Recitals
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WHEREAS, Amerigon and Ferrotec desire to enter into this Agreement to set
forth certain binding obligations of Amerigon and Ferrotec with respect to, and
the general terms and conditions of, an exclusive supplier arrangement pursuant
to which Amerigon receives a fee of US$ 2,000,000 and enters into a Common Stock
Subscription Agreement with Ferrotec (the "Subscription Agreement"), as set
forth in Section 11.2 of this Agreement, and Ferrotec receives the exclusive
rights for the Term (as defined in Section 10.1 of this Agreement) to
manufacture in the countries and geographic territories described in Exhibit A
to this Agreement (the "Territory") Amerigon Climate Control Seat System units
("CCS Units") for distribution by Amerigon to automotive parts manufacturing
facilities located in the Territory with the understanding that the parties
shall negotiate to enter into a joint venture for the marketing, sales and
distribution of CCS Units in the Territory.
NOW THEREFORE, in consideration of the mutual promises contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, and intending to be legally bound,
Amerigon and Ferrotec agree as follows:
II. Statement of Work
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2.1 Manufacturing:
(a) Ferrotec shall manufacture in the Territory and shall supply to
Amerigon all of the CCS Units required to be distributed by Amerigon
to automotive parts manufacturing facilities located in the Territory,
as set forth in the Production Schedule defined in Article IV of this
Agreement (the "Production Schedule") or in purchase orders generated
from time to time by Amerigon.
(b) Ferrotec shall purchase any and all parts necessary to manufacture and
supply the CCS Units in accordance with the Production Schedule.
(c) Ferrotec shall provide to Amerigon CCS Units that are technologically
equal to or better than any competitive product that can be
substituted for the CCS Unit. Ferrotec shall manufacture and supply to
Amerigon CCS Units that meet, at all times, the acceptance
requirements and quality
standards specified by Amerigon from time to time with respect to CCS
Units. Amerigon may, at its sole discretion and without breaching this
Agreement, periodically conduct tests of CCS Units manufactured by
Ferrotec and perform other studies to ensure that the technology,
price and quality of the CCS Units manufactured by Ferrotec remain
competitive.
(d) Ferrotec shall deliver CCS Units in a timely manner at the time
specified in purchase orders generated from time to time by Amerigon
or at the time specified in the Production Schedule.
(e) Ferrotec shall establish and adhere to local production capability
requirements that are either required by law, regulation, or other
government action or are otherwise necessary to avoid adverse economic
impacts such as import or other tariffs.
(f) Ferrotec shall pay Amerigon the costs incurred by Amerigon associated
with the purchase, delivery and installation and break-in at
Ferrotec's facilities of the production equipment (the "Production
Equipment") and related engineering and training services necessary
for Ferrotec to commence production of CCS Units.
(g) Ferrotec shall obtain the prior written approval of Amerigon before
changing any processes or specifications used in connection with the
manufacture of CCS Units.
(h) Ferrotec shall not, under any circumstances or for any reason, sell,
or in any other manner dispose of, any of the CCS Units or other
machinery or equipment provided by Amerigon related to the manufacture
of the CCS Units, or any parts or components thereof, in any manner
other than to Amerigon, without Amerigon's written consent.
(i) If Ferrotec knows or has reason to believe that Ferrotec will not be
able to supply all of the CCS Units required to be distributed by
Amerigon in the Territory in any period, Ferrotec shall provide notice
to Amerigon as soon as possible and in any event sufficiently in
advance of such period to allow Amerigon to locate another source of
CCS Units for such period.
(j) Ferrotec shall pay Amerigon any costs incurred by Amerigon caused by
Ferrotec's inability to supply all of the CCS Units required to be
distributed by Amerigon in the Territory in any period. Specifically,
Ferrotec shall pay Amerigon:
(1) the difference between (i) the aggregate price paid by Amerigon
to third parties for the manufacture and supply to Amerigon of
(or the costs to Amerigon, including allocated overhead, to
produce) CCS Units manufactured by third parties to replace the
CCS Units not
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supplied by Ferrotec (the "Substitute Units") and (ii) the
aggregate price payable by Amerigon of the CCS Units not supplied
by Ferrotec;
(2) any additional shipping charges and applicable duties and tariffs
paid by Amerigon with respect to Substitute Units;
(3) all brokerage fees or agents' commissions paid by Amerigon with
respect to Substitute Units.
Notwithstanding any other provision of this Agreement to the contrary,
Ferrotec shall not delegate or attempt to delegate any of its obligations
pursuant to this Section 2.1 to a third party without Amerigon's prior written
consent. Amerigon's consent to such delegation may be conditioned on receipt by
Amerigon of evidence reasonably satisfactory to it that (i) such third party
shall abide by all of the restrictions imposed on Ferrotec by this Agreement,
and (ii) the ability of such third party to perform the delegated duties is at
least equivalent to the ability of Ferrotec to perform the delegated duties. To
the extent Ferrotec is unable to identify a third party acceptable to Amerigon,
Ferrotec shall be responsible for the manufacturing the CCS Units at its own
principal manufacturing facility.
2.2 Purchasing:
(a) Amerigon shall purchase from Ferrotec all of the CCS Units required to
be distributed by Amerigon to automotive parts manufacturing
facilities located in the Territory, provided such CCS Units are
delivered in a timely manner and meet Amerigon's acceptance
requirements and quality standards.
(b) Amerigon shall purchase the CCS Units for an initial price per CCS
Unit agreed upon by Amerigon and Ferrotec, with mutually agreed upon
price reductions to be determined during the Term. Ferrotec's prices
for CCS Units shall, during the Term, be competitive, in the good
faith determination of Amerigon, with any product offered by other
suppliers offering features similar to those of the CCS Units.
(c) Without limiting any other right or remedy available to Amerigon
pursuant to this Article II, if Ferrotec fails to supply sufficient
CCS Units of the quality set forth in this Agreement and in the manner
and at the time set forth in purchase orders or the Production
Schedule, Amerigon shall have the absolute right to purchase or
otherwise acquire from third parties or to manufacture for its own
account, alternative products to use by it in lieu of the CCS Units
that were to be supplied by Ferrotec.
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III. Cost
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Ferrotec shall pay Amerigon US$ 2,000,000 (the "Royalty") by wire transfer
in immediately available funds to an account designated by Amerigon. Ferrotec
shall also enter the Subscription Agreement.
IV. Production Schedule; Commencement of Manufacturing
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Every six months, Amerigon and Ferrotec shall prepare a mutually acceptable
detailed twelve month production schedule (the "Production Schedule") for the
manufacture of the CCS Units. Ferrotec shall not commence the manufacture of
any CCS Units until Ferrotec receives written authorization permitting Ferrotec
to manufacture such CCS Units from Amerigon and/or the automobile manufacturers
and/or automotive parts manufacturers that will be the ultimate purchasers of
such CCS Units.
V. Product Warranty
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Ferrotec warrants that CCS Units manufactured pursuant to Section 2.1 of
this Agreement shall, under reasonably anticipated use and conditions, meet all
of the specifications and other requirements developed and accepted by Amerigon
and Ferrotec and delivered to the other party pursuant to Article II of this
Agreement. Ferrotec further warrants that each CCS Unit shall be free from
defects in material and workmanship. With respect to parts and materials
manufactured by third parties and incorporated by Ferrotec in the CCS Units,
such parts and materials shall be covered only by the warranty of the
manufacturer thereof and Ferrotec shall assign to Amerigon any such warranty.
VI. Grant of Licenses
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6.1 Definitions. For purposes of this Agreement, the following definitions
shall apply:
"Amerigon's Technology" shall mean that portion of Amerigon's
Intellectual Property Rights, together with the tangible and intangible
property to which such Intellectual Property Rights relate, used in or in
connection with the manufacture of the CCS Units.
"Ferrotec's Technology" shall mean that portion of Ferrotec's
Intellectual Property Rights, together with the tangible and intangible
property to which such Intellectual Property Rights relate that is not
Amerigon's Technology and is used in or in connection with the
manufacturing of the CCS Units.
"Intellectual Property Rights" shall mean (a) those patents, design
patents and other industrial property rights (excluding trademarks)
relating to the manufacture of the CCS Units, which are owned by the
licensing party or under which the licensing party is entitled to grant
license to the other party; and (b) trade secrets, technical information,
know how, data, formula and knowledge relating to the manufacture of the
CCS Units
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(except as set forth in clause (a) of this definition), including but not
limited to designs, drawings, standards, specifications, technical records,
material lists, process manuals and direction maps, all solely to the
extent relating to the manufacture of the CCS Units, which are owned by the
licensing party or under which the licensing party is entitled to grant
license or permission to use to the other party.
6.2 The Amerigon License
Subject to the terms of this Agreement and only during the Term,
Amerigon grants to Ferrotec an indivisible, terminable, non-transferable
license, without the right to export or grant sublicenses (the "License")
to use, and under, that portion, and only that portion, of Amerigon's
Technology which is necessary to perform Ferrotec's obligations under this
Agreement, solely and exclusively for the purpose of manufacturing in the
Territory of the CCS Units required to be distributed by Amerigon to
automotive parts manufacturing facilities located in the Territory.
6.3 Limitations on Grant of the Amerigon License
All grants of rights by Amerigon to Ferrotec to use Amerigon's
Technology intended to be accomplished by this Agreement are specifically
stated in this Agreement and no additional rights are granted or may be
inferred or created by implication. Without limiting the generality of the
foregoing, Ferrotec acknowledges and agrees that it does not have any right
to, and that it shall not:
(a) sublicense, grant any other rights in or with respect to, or take
any actions which could result in the encumbrance of or damage to
Amerigon's Technology;
(b) use or disclose Amerigon's Technology for any use other than that
specified in Section 6.1 hereof;
(c) make any modifications to, or derivatives from, Amerigon's
Technology;
(d) make any copies of Amerigon's Technology; or
(e) attempt to reverse engineer, disassemble, reverse translate,
decompile or in any other manner decode Amerigon's Technology used
or contained in the CCS Units in order to derive the source code
or object code thereof or for any other reason.
6.4 The Ferrotec License.
(a) Subject to the terms of this Agreement and only during the Term,
Ferrotec grants to Amerigon an indivisible, terminable, non-
transferable license, without the right to export or grant
sublicenses (the "Ferrotec License") to use, and under, that
portion, and only that portion, of Ferrotec's
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Technology which is necessary to perform Amerigon's obligations
under this Agreement.
(b) Ferrotec hereby grants to Amerigon a non-exclusive, fully paid,
right and license to use any General Manufacturing Technology (as
defined in Section 7) conceived or developed hereunder. The
license granted in this Section will survive the termination of
this Agreement for whatever reason.
VII. Proprietary Rights and Protection
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7.1 Amerigon's Ownership Rights
(a) Amerigon shall own all rights in and to Amerigon's Technology,
including, but not limited to, the Intellectual Property Rights
associated therewith.
(b) Amerigon shall also own all rights, including, but not limited to,
the Intellectual Property Rights, in and to the CCS Units, all
components thereof and any parts of all such components including,
without limitation the form factor and all other components of the
CCS Units and parts of such components manufactured by Ferrotec in
connection with the performance of Ferrotec's obligations under
this Agreement.
(c) Amerigon shall own all rights to any technology developed
individually or jointly by the parties hereto relating to the
performance of the obligations hereunder which is (i) derived
from, derivative of, or based upon Amerigon's Technology or
Amerigon's Confidential Information, (ii) related to the CSS Unit
or the manufacture thereof, or (iii) developed by Amerigon or
jointly by Amerigon and Ferrotec under this Agreement (the
"Developed Technology"), and Ferrotec hereby assigns to Amerigon
Ferrotec's entire right, title and interest in and to Developed
Technology, including without limitation the right of priority to
file and prosecute corresponding applications in any and all
countries, the rights to any divisions, continuations, reissues
and extensions with respect thereto, and any right of Ferrotec to
xxx and recover damages for any infringement of any Developed
Technology. Ferrotec shall own all rights to any intellectual
property developed exclusively by Ferrotec that is not Developed
Technology and which is developed without the use or assistance of
Amerigon or Amerigon Technology ("General Manufacturing
Technology"). Ferrotec agrees to take such further action and to
execute such documents as Amerigon may reasonably request to
effect or confirm the conveyance to Amerigon of the Developed
Technology and any improvements thereunder.
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(d) No trademark license is granted by this Agreement, and Ferrotec
shall not use in any manner any of the trademarks or trade names
of Amerigon.
7.2 Ferrotec's Ownership Rights
Except as set forth in Section 7.1, Ferrotec shall solely own all
rights in and to Ferrotec's Technology, including, but not limited to, the
Intellectual Property Rights associated therewith.
VIII. Representations, Warranties, and Indemnification
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8.1 By Amerigon
Amerigon represents and warrants that Amerigon's Technology does not
infringe any patent, copyright, trademark or other Intellectual Property
Right of any third-party. Amerigon shall settle and/or defend at its own
expense and indemnify, and hold harmless Ferrotec, from and against any
cost, loss or damage arising out of any claim, demand, suit or action
against Ferrotec to the extent such claim, demand, suit or action alleges
that Amerigon's Technology infringes upon any Intellectual Property Right
of any third party, provided that (1) Ferrotec promptly informs Amerigon in
writing of any such claim, demand, suit or action and, where applicable,
provides Amerigon with a copy of any demand or complaint with respect
thereto, (2) Amerigon is given control over the defense or settlement
thereof and Ferrotec cooperates, at Amerigon's expense, in such defense or
settlement, and (3) Ferrotec does not agree to the settlement of any such
claim, demand, suit or action prior to a final judgment thereon without the
prior written consent of Amerigon, which consent shall not be unreasonably
withheld. Ferrotec shall have the right to select its own counsel to
participate in any such defense at Ferrotec's expense.
8.2 By Ferrotec
Ferrotec represents and warrants that (a) Ferrotec's Technology does
not infringe by patent, copyright, trademark or other Intellectual Property
Rights of any third party, (b) the performance of its obligations hereunder
does not, and the performance of its obligations in connection with the
Production Schedule shall not, in each case, including without limitation,
its manufacture and supply of the CCS Units to Amerigon, whether with or
without notice and/or the passage of time, violate Intellectual Property
Rights of any third party, (c) the CCS Units shall be manufactured in a
good and workmanlike manner, (d) Ferrotec shall comply with local
production capability requirements as set forth in Section 2.1(e), and (e)
the CCS Units shall, under reasonably anticipated conditions and use,
conform to and operate in accordance with the specifications and other
requirements identified in Section 2.1 hereof. Ferrotec shall settle
and/or defend at its own expense and indemnify, and hold harmless Amerigon,
from and against any cost, loss or damage arising out of any claim, demand,
suit or action of any kind made by a third party against Amerigon and
arising out of or in connection with the use of the CCS Units (except with
respect to defects in the design or functionality of Amerigon's
Technology), provided that (1) Amerigon promptly informs Ferrotec in
writing of any
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such claim, demand, suit or action and, where applicable, provides Ferrotec
with a copy of any demand or complaint with respect thereto, (2) Ferrotec
is given control over the defense or settlement thereof and Amerigon
cooperates, at Ferrotec's expense, in such defense or settlement, and (3)
Amerigon does not agree to the settlement of any such claim, demand, suit
or action prior to a final judgment thereon without the prior written
consent of Ferrotec, which consent shall not be unreasonably withheld.
Amerigon shall have the right to select its own counsel to participate in
any such defense at Amerigon's expense. Notwithstanding the foregoing,
Ferrotec shall have no liability pursuant to this Section 8.2 if, and to
the extent that, Ferrotec can demonstrate that its action or inaction was
done at the direction of Amerigon.
IX. Confidentiality
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9.1 Confidential and Proprietary Information
"Confidential and Proprietary Information" of any party means all
trade secrets, Intellectual Property Rights, Developed Technology and other
confidential and/or proprietary information, reports, investigations,
research, work in progress, source codes, object codes, marketing and sales
programs, financial projections, cost summaries, pricing formula, contracts
analyses, financial information, projections, confidential filings with any
international, federal or state agency, and all other confidential
concepts, methods of doing business, ideas, materials or information
prepared or performed by or on behalf of such party by its employees,
officers, directors, agents, representatives, or consultants, unless such
information is not a trade secret and (a) was in the possession of the
party receiving such information (the "Receiving Party") prior to
disclosure hereunder; (b) was disclosed by a third party without breach of
any obligation of confidentiality owed to the party disclosing such
information ( the "Disclosing Party"); (c) was independently developed by
personnel of the Receiving Party having no access to Confidential and
Proprietary Information; or (d) became known or available to the public
generally through no wrongful act of either party. Ferrotec acknowledges
that the term Confidential and Proprietary Information when applied to
Amerigon shall include any of the foregoing types of information developed
by Ferrotec while performing services pursuant to this Agreement.
9.2 Disclosure
Each Receiving Party shall not disclose to third parties nor use for
any purpose other than for the proper fulfillment of the purposes of this
Agreement any Confidential and Proprietary Information received from the
Disclosing Party in whatever form under or in connection with this
Agreement without the prior written permission of the Disclosing Party save
for Confidential and Proprietary Information which is required by any
international, federal or state statute, rule or regulation or the order of
any court of competent jurisdiction or governmental entity, in each case
applicable to the Disclosing Party, provided, that prior to disclosing any
Confidential and Proprietary Information pursuant to such international,
federal or state statute, rule, regulation or order, the Disclosing Party
shall give prior written notice thereof to the Receiving Party, together
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with a copy of any request or subpoena seeking disclosure of such
information received and provided the Receiving Party with the opportunity
to contest such disclosure.
9.3 Affiliates
Affiliates of a Party hereto engaged in the performance of this
Agreement shall not be deemed to be third parties for the purposes of this
Article IX so long as the respective Party ensures full compliance by such
affiliates with all of the provisions of this Article IX. Notwithstanding
the foregoing, each Party shall be liable for the failure of any affiliate
to whom such Party discloses such Confidential and Proprietary Information
to comply with the provisions of this Article IX to the same extent as if
such Party had itself failed to comply with the provisions of this Article
IX.
9.4 Personnel
Each party shall limit access to Confidential and Proprietary
Information to those of its personnel and the personnel of its affiliates
for whom such access is reasonably necessary for the proper performance of
this Agreement and obtain written undertakings of confidentiality from
them.
9.5 Duration
The obligation to treat information as Confidential and Proprietary
Information shall, with respect to each piece of information, continue so
long as such piece of information continues to meet the definition of
Confidential and Proprietary Information as set forth in this Article IX.
9.6 Consent to Disclosure of the Terms of this Agreement
Neither party shall provide a copy of, or disclose any of the terms or
conditions of, this Agreement without the prior written permission of the
other party, except as otherwise required by any international, federal or
state statute, including the United States federal securities laws, rule or
regulation or the order of any court of competent jurisdiction or
governmental entity.
X. Term and Termination
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10.1 Term
The period of effectiveness of this Agreement (the "Term") shall
commence at 12:00 am (Los Angeles time) on April 1, 2001 and shall extend
until 12:00 am (Los Angeles time) on April 1, 2011 (the "Initial Term")
and, thereafter, the Term shall automatically extend for successive one-
year periods, unless this Agreement is sooner terminated as provided in
this Agreement.
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10.2 Termination for Breach
Subject to Section 10.6, each party shall have the right to terminate
this Agreement if the other Party fails to remedy any breach of a warranty,
representation or covenant contained in this Agreement within 30 days of
receipt of written notice of the breach.
10.3 Termination for Competitive Reasons
If during the Term, (a) the quality of the CCS Units manufactured by
Ferrotec deteriorates below the acceptance requirements and quality
standards specified by Amerigon with respect to the CSS Units, or (b) the
technology, price or quality of the CCS Units manufactured by Ferrotec does
not remain competitive, in each case as determined by Amerigon in good
faith, Amerigon may immediately terminate this Agreement in whole or in
part without further liability. Amerigon shall provide written notice to
Ferrotec which outlines its causes for termination and specifies a
termination date at least three months after the date of the notice. If
Ferrotec demonstrates to Amerigon, at least one month prior to the
specified date of termination, that Ferrotec shall correct the causes by
the termination date or a subsequent date acceptable to Amerigon,
termination shall be suspended and this Agreement shall continue in
accordance with the terms hereof. Termination of this Agreement pursuant
to the termination rights set forth in this Section 10.3 does not negate,
vitiate, or otherwise affect Ferrotec's obligations with respect to CCS
Units previously supplied, including without limitation all warranty
obligations.
10.4 Termination after Initial Term.
Either party may terminate this Agreement for any reason, if the other
party receives written notice of termination at least one year prior to the
date of termination; provided, however, that the earliest date of
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termination permitted pursuant to this Section 10.4 shall be the day after
expiration of the Initial Term.
10.5 Bankruptcy
Either party shall have the right to terminate this Agreement if a
decree or order by a court having jurisdiction over the other party shall
have been entered adjudging the other party bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
readjustment, arrangement, composition or similar relief for or in respect
of the other party under the federal bankruptcy laws, or any other similar
applicable federal or state law, and such decree or order shall have
continued undischarged and unstayed for a period of 60 days; or a decree or
order of a court having jurisdiction over the other party for the
appointment of a liquidator or trustee or assignee in bankruptcy or
insolvency of the other party, or for the winding up or liquidation of the
other party's affairs, shall have been entered, and such decree or order
shall have remained in force, undischarged and unstayed for a period of 60
days; or the other party shall institute proceedings to be adjudicated a
voluntary bankrupt, or insolvent or shall consent to the
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filing against it of a proceeding under the federal bankruptcy laws, or any
other similar applicable federal or state law, or shall file a petition or
answer or consent seeking reorganization, readjustment, arrangement,
composition or similar relief under the federal bankruptcy laws, or any
other similar applicable federal or state law, or admit its inability to
pay its debts as they become due or the making by it of an assignment for
the benefit of creditors.
XI. Joint Venture Agreement; Subscription Agreement.
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11.1 Joint Venture Agreement
It is the intention of Amerigon and Ferrotec to enter into a Joint
Venture Agreement (the "Joint Venture Agreement") for the purpose of
purchasing, marketing, selling and distributing the CCS Units in the
Territory. The terms of the Joint Venture Agreement shall be negotiated by
Amerigon and Ferrotec in good faith subsequent to the commencement of this
Agreement and shall contemplate that each party shall contribute capital to
the formation of the Joint Venture.
11.2 Common Stock Subscription Agreement.
As additional consideration for the rights exchanged in this
Agreement, Amerigon and Ferrotec have entered into the Subscription
Agreement, whereby Amerigon sold to Ferrotec, and Ferrotec purchased,
200,000 shares of Amerigon common stock, no par value per share, at a
purchase price of US$ 5.00 per share.
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XII. Miscellaneous Provisions
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12.1 No Obligations; License. Nothing contained in this Agreement shall be
construed as (a) requiring either party to purchase, manufacture or
develop any CCS Units not specifically identified in this Agreement
or a purchase order or Production Schedule delivered pursuant to this
Agreement; (b) requiring either party to discuss, negotiate or
consummate the terms of a subsequent supply agreement; or (c)
transferring the ownership of the Intellectual Property Rights now or
hereafter owned by one party to the other party except as set forth
in Section 7.1(c) of this Agreement.
12.2 Independent Advice. The parties have read this Agreement, have had
the benefit of their own legal counsel regarding this Agreement, or
an opportunity to so obtain said benefit, and hereby warrant,
represent, and agree that they understand all of the terms of this
Agreement and that they are voluntarily executing the same of their
own free will.
12.3 Parties Bear Own Expenses. Each party shall each bear its own
expenses incurred in negotiating, preparing and signing this
Agreement.
12.4 Further Assurances. The parties shall perform any further acts and
execute and deliver any documents that may be reasonably necessary to
carry out the intent of this Agreement.
12.5 Integration. This Agreement, and all appendices and exhibits attached
hereto, shall constitute the final, complete and exclusive agreement
and understanding by and between the parties, and supersedes all
prior or contemporaneous written or oral agreements. To the extent
there is a conflict between the terms of an appendix or exhibit
attached hereto and the terms of this Agreement, the terms of this
Agreement shall control. The parties each acknowledge that there are
no representations, warranties, agreements, arrangements or
understandings other than as expressly contained in this Agreement
and the appendices and exhibits attached hereto.
12.6 Assignment and Transfer:
(a) Amerigon shall have the right to assign its rights and interests
and delegate its obligations with respect to the purchase of the
CCS Units manufactured by Ferrotec hereunder to any third party
assignee whose financial condition and creditworthiness is at
least equivalent to Amerigon's financial condition and
creditworthiness at the time of execution of this Agreement.
(b) Ferrotec shall not have the right to assign its rights and
benefits or delegate its obligations under this Agreement without
the prior written consent of Amerigon.
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12.7 Partial Invalidity. If, at any time, any provision hereof is or
becomes illegal, invalid or unenforceable in any respect under the
law of any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions hereof, nor the legality,
validity or enforceability of such provision under the law of any
other jurisdiction shall in any way be affected or impaired thereby.
12.8 Counterparts. This Agreement may be executed in one or more
counterparts all of which together shall constitute one and the same
Agreement.
12.9 Interpretation. Parties have each agreed to the use of the particular
language of the provisions of this Agreement, and any question of
doubtful interpretation shall not be resolved by any rule of
interpretation providing for interpretation against a party who
causes an uncertainty to exist or against the draft herein.
12.10 Amendments and Modifications. This Agreement, any Exhibits,
Appendices or any other attachments to this Agreement, and any
purchase order or Production Schedule delivered pursuant to the terms
of this Agreement may be amended or modified in writing only, signed
by the parties to be charged or bound by such amendment or
modifications.
12.11 Remedies and Waivers. No failure to exercise, nor any delay in
exercising, on the part of either party, any right or remedy
hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any right or remedy prevent any further or other
exercise thereof or the exercise of any other right or remedy.
12.12 Notices. Any notice given by one party to the other shall be deemed
properly given if specifically acknowledged by the receiving party in
writing, upon receipt by the recipient by overnight delivery,
messenger delivery or registered mail to the following addresses (or
such other address as may be notified in writing from time to time by
either party) or if made by telex, telecopy or facsimile
transmission, at the time that receipt thereof has been acknowledged
by electronic confirmation or otherwise:
If to Amerigon:
Amerigon Incorporated
0000 Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
O'Melveny & Xxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Xxxx Xxxx, Esq.
Facsimile No.: (000) 000-0000
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If to Ferrotec:
Ferrotec Corporation
Sumitomo Xxxx. #0,
0-00-0 Xxxxxxx Xxxx Xxxxx-xx,
Xxxxx 000, Xxxxx
Facsimile No.:
with a copy to:
Attention:
Facsimile No.:
12.13 Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California without regards
to its choice of law provision.
12.14 Jurisdiction. Each party to this Agreement hereby irrevocably agrees
that any legal action or proceeding arising out of or relating to
this Agreement or any agreements or transactions contemplated hereby
may be brought in the courts of the State of California or of the
United States of America located in the Central District of
California and hereby expressly submits to the personal jurisdiction
and venue of such courts for the purposes thereof and expressly
waives any claim of improper venue and any claim that such courts are
an inconvenient forum. Each party hereby irrevocably consents to the
service of process of any of the aforementioned courts in any such
suit, action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to the address set
forth in Section 12.12 such service to become effective 10 days after
such mailing.
12.15 Waiver of Jury Trial. To the extent permitted by applicable law,
Ferrotec and Amerigon irrevocably waive their respective rights to a
jury trial with respect to any action, claim or other proceeding
arising out of any dispute in connection with this agreement, any
rights or obligations hereunder or thereunder, or the performance of
such rights and obligations.
14
IN WITNESS WHEREOF, the Parties have executed this Agreement on the
date first above mentioned.
Amerigon Incorporated Ferrotec Corporation
/s/ Xxxxxxx Xxxxxxxx /s/ Xxxxx Xxxxxxxx
-------------------------- ------------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxx Xxxxxxxx
Title: President and CEO Title: President and CEO
15
DRAFT
EXHIBIT A
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The countries included in the Territory are China, Japan, Taiwan, Korea,
India, Thailand, Vietnam, Malaysia, Indonesia, and the Philippines.
Exhibit A-1
