DEVELOPMENT AND LICENSE AGREEMENT
THIS DEVELOPMENT AND LICENSE AGREEMENT (this "Agreement") is entered
into and effective as of this 1st day of October, 2000 (the "Effective Date") by
and between PPG INDUSTRIES, INC., a corporation organized and existing under the
laws of the Commonwealth of Pennsylvania, U.S.A., having its principal place of
business at ▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ("PPG"), and UNIVERSAL
DISPLAY CORPORATION, a corporation organized and existing under the laws of the
Commonwealth of Pennsylvania, U.S.A., having a principal place of business at
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ("UDC").
WHEREAS:
1. PPG possesses technical, manufacturing, and business
know-how, as well as development resources and capabilities, relating to various
chemical products;
2. UDC is the owner and/or licensee of technology related to,
and has expertise in the development and use of, organic light-emitting devices
("OLEDs");
3. PPG and UDC mutually desire to utilize certain PPG research
and development capabilities, facilities and equipment, and the parties'
respective personnel and Know-How, to develop new and/or improved OLED Chemicals
under the terms and conditions of this Agreement;
4. UDC desires to establish an assured supply of certain OLED
Chemicals to UDC and UDC Licensees, and PPG possesses technical, manufacturing
and business know-how relating to the commercial production of OLED Chemicals,
and the parties have agreed to concurrently enter into a long-term business
relationship whereby PPG manufactures and is the exclusive supplier of certain
OLED Chemicals, and non-exclusive supplier of other OLED Chemicals, to UDC for
its own use and for resale to UDC Licensees pursuant to the Supply Agreement by
and between the parties as of the date hereof;
5. The parties desire to identify and pursue opportunities to
accelerate and enhance the commercial success of UDC's OLED business, and to
pursue other opportunities beyond OLED Chemicals, as may be mutually agreed by
the parties.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, the parties hereto, intending to be legally bound
hereby, covenant and agree as follows:
ARTICLE 1 - DEFINITIONS
Whenever used in this Agreement, unless otherwise clearly indicated in
the context, the following terms shall have the meanings as defined in this
Article. As used herein, the singular includes the plural and vice versa.
1.1 "1933 Act" means the Securities Act of 1933, as amended.
1.2 "1934 Act" means the Securities Exchange Act of 1934, as amended.
1.3 "Authorized OLED Applications" means the OLED applications
identified in Exhibit F attached hereto, together with any other OLED
applications that the parties mutually agree in writing shall be added to
Exhibit F.
1.4 "Average Price" means the lesser of
(a) the average closing price per share of UDC Common Stock
for the ninety (90) calendar days ending on the business day prior to
the execution of this Agreement or
(b) if, on any date that UDC is required to issue shares of
UDC Common Stock to PPG pursuant to this Agreement (the "Issuance
Date") the average closing price per share of UDC Common Stock for the
ninety (90) calendar days prior to such date, as listed in the NASDAQ
National Market listing of The Wall Street Journal, is less than
sixty-five percent (65%) of the price set forth in (a), such average
closing price, provided that in the event that such average closing
price is less than thirty percent (30%) of the amount set forth in the
preceding clause (a), then the average closing price for purposes of
this clause (b) shall be deemed to be thirty percent (30%) of the
amount set forth in the preceding clause (a);
provided further that such prices shall be appropriately adjusted in the event
of any dividend, stock split, combination of other similar recapitalization
affecting UDC Common Stock since the date of execution of this Agreement or
Issuance Date, as the case may be.
1.5 "Commission" means the Securities and Exchange Commission.
1.6 "Confidential Information" of a party shall include all trade
secret, confidential and/or proprietary information of such party, whether of a
technical, engineering, operational, financial or marketing nature (including,
without limitation, their respective proprietary materials), that is (i) in
writing and marked as "Trade Secret," "Confidential," "Proprietary" or with
words of a similar nature; or (ii) orally disclosed and clearly identified as
"Trade Secret," "Confidential" or "Proprietary" at the time of such disclosure
and confirmed in writing as such within thirty (30) days following such oral
disclosure.
1.7 "Developed Technology" means all inventions, discoveries,
information and materials, patentable or unpatentable, that (i) are conceived,
created, made or reduced to practice by the Development Team (alone or with UDC
personnel) (ii) pursuant to an agreed-upon Statement of Work or Work Plan. This
includes OLED Chemicals, their composition of matter, their synthetic pathways
(including purification) for developmental quantities, their uses in all fields
of application, and their associated analytical characterization techniques.
"Developed Technology" shall also encompass the technology developed pursuant to
the December 29, 1999 and February 21, 2000 agreements between the parties.
1.8 "Development Program" means the joint research and development
program undertaken by PPG and UDC pursuant to this Agreement, which program
shall be directed to (i) developing new and/or improved OLED Chemicals and
methods and practices for producing developmental quantities of such chemicals;
and (ii) such other items as are agreed upon by the parties in a Statement of
Work or Work Plan.
1.9 "Development Team" means the team of qualified research and process
development chemists, technicians, engineers and supervision assembled by PPG to
work on the Development Program under this Agreement, to the extent the salaries
of such persons are funded pursuant to subsection (a) of Exhibit A hereto.
1.10 "Know-How" means trade secrets, know-how and other unpatented
technical and/or proprietary information, data, specifications, plans, drawings,
designs, copyrights, blueprints, formulae, processes and other similar items and
materials.
1.11 "OLED Chemicals" means organic or organometallic molecules or
compounds positioned between the two electrodes in a device that radiates light
by applying electrical current or voltage to the electrodes.
1.12 "Patents" means United States and foreign patents and patent
applications, together with all divisions, continuations, continuations-in-part,
reissues, re-examinations, renewals and extensions of the same.
1.13 "Person" or "person" means any natural person, corporation,
partnership, limited liability company, proprietorship, association, trust or
other legal entity.
1.14 "PPG Actual Expenses" means, for the period of calculation, PPG's
calculation of the actual PPG Expenses incurred.
1.15 "PPG Estimated Expenses" means, as of the date of calculation,
PPG's good faith estimate of PPG Expenses.
1.16 "PPG Expenses" means, for the period of calculation, the amount
calculated pursuant to Exhibit A attached hereto.
1.17 "Princeton License Agreement" means that Amended License Agreement
by and among UDC, The Trustees of Princeton University ("Princeton University")
and the University of Southern California ("USC"), dated as of October 9, 1997,
as the same has been and may be amended from time to time provided that any
amendment does not materially alter the rights or obligations of the parties
under this Agreement.
1.18 "Rule 144" means Rule 144 promulgated by the Commission pursuant
to the ▇▇▇▇ ▇▇▇.
1.19 "Securities" means the shares of UDC Common Stock issuable to PPG
pursuant to this Agreement, the Warrants issuable to PPG pursuant to this
Agreement and the shares of UDC Common Stock issuable upon exercise of the
Warrants.
1.20 "Statement of Work" means an agreed-upon statement of work
describing the work to be performed by the Development Team, as amended from
time to time in writing by mutual agreement. The initial Statement of Work for
the period 2000-2001 is attached hereto as Exhibit B.
1.21 "Supply Agreement" means the related Supply Agreement entered into
by and between the parties as of the date hereof.
1.22 "UDC Common Stock" means the common stock of UDC, $0.01 par value
per share.
1.23 "UDC Chemical Know-How" means any and all Know-How relating to
OLED Chemicals or methods of producing OLED Chemicals, or that might reasonably
be useful in connection with producing OLED Chemicals, that UDC owns or
otherwise is authorized to disclose and license or sublicense to PPG hereunder,
including, without limitation, any such Know-How constituting Developed
Technology and any such Know-How acquired or licensed by UDC from Princeton
University or USC under the Princeton License Agreement or such other
agreements, whether prior to or after the Effective Date.
1.24 "UDC Chemical Patents" means the Patents listed in Exhibit D
attached hereto and any and all other Patents, whether or not currently
existing, that claim or cover any OLED Chemicals or methods of producing OLED
Chemicals, or any methods or processes that might reasonably be useful in
connection with producing OLED Chemicals, and that UDC is authorized to license
or sublicense to PPG hereunder, including, without limitation, any such Patents
claiming Developed Technology and any such Patents acquired or licensed by UDC
from Princeton University or USC under the Princeton License Agreement or such
other agreements, whether prior to or after the Effective Date.
1.25 "UDC Proprietary Materials for Chemicals" means all UDC Chemical
Patents, UDC Chemical Know-How, and Developed Technology, as well as the Product
Specifications as such term is defined under the Supply Agreement.
1.26 "Warrant Shares" means the shares of UDC Common Stock issuable
pursuant to the Warrants.
1.27 "Work Plan" means a written work plan provided by UDC that may be
updated monthly, or more frequently if mutually agreed to by the parties, which
work plan shall describe in greater detail the work to be performed as set forth
in the Statement of Work. The initial Work Plan is attached hereto as Exhibit C.
ARTICLE 2 - MANAGEMENT AND REPRESENTATION
2.1 The parties shall form a Management Committee (the "Committee")
consisting of equal numbers of representatives appointed by PPG and UDC
reporting to the President of UDC. The number of representatives appointed by
each party shall be not less than one and not more than three. Each party shall
designate one representative to be its spokesperson; UDC's spokesperson shall
chair the Committee (the "Chair"). The parties agree to cause their respective
representatives to comply with all terms and conditions set forth in this
Agreement and all applicable laws.
2.2 The Committee shall be a forum for discussing the strategic
direction of the Development Program. The Committee shall establish the
Statement of Work for the upcoming budget year as specified in Section 10.2
below.
2.3 Meetings of the Committee shall be convened on a regular basis and
whenever necessary but at least quarterly, and presided over by the Chair. Any
Committee member may, whenever it is deemed necessary, request the Chair to
convene a meeting of the Committee. Meetings of the Committee may be conducted
in person or by telephone or video conference.
2.4 [The confidential material contained herein has been omitted and
has been separately filed with the Commission.]
ARTICLE 3 - PARTY RESPONSIBILITIES
3.1 PPG shall assemble the Development Team to work on the tasks set
forth in the Statement of Work. [The confidential material contained herein has
been omitted and has been separately filed with the Commission.] By July 1 of
the year preceding the year to which the Statement of Work applies, UDC may
request that PPG add or reduce qualified individuals to or from the Development
Team to support the agreed-upon Statement of Work, provided that the
distribution of stock and warrants pursuant to Article 10 is adjusted
appropriately [The confidential material contained herein has been omitted and
has been separately filed with the Commission.]
PPG's responsibilities under the Development Program shall include,
without limitation, using commercially reasonable efforts to do the following:
3.1.1 PPG shall direct the Development Team to develop and
improve OLED Chemicals as described in the agreed-upon Statement of Work, and to
perform its obligations as specified in the Statement of Work and in the Work
Plan.
3.1.2 PPG shall direct the Development Team to [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.]
3.1.3 [The confidential material contained herein has been
omitted and has been separately filed with the Commission.]
3.1.4 [The confidential material contained herein has been
omitted and has been separately filed with the Commission.]
3.2 UDC's responsibilities under the Development Program shall include,
without limitation, using commercially reasonable efforts to do the following:
3.2.1 UDC shall prepare and provide PPG with written Work
Plans, consistent with the agreed-upon Statement of Work, and perform its
obligations as specified in the Statement of Work and the Work Plan.
3.2.2 UDC shall assemble a qualified team to [The confidential
material contained herein has been omitted and has been separately filed with
the Commission.]
3.2.3 [The confidential material contained herein has been
omitted and has been separately filed with the Commission.]
3.2.4 [The confidential material contained herein has been
omitted and has been separately filed with the Commission.]
3.3 Each party agrees to the following responsibilities under this
Agreement:
3.3.1 The parties' researchers will work together in a team
environment using their respective expertise and know-how to [The confidential
material contained herein has been omitted and has been separately filed with
the Commission.]
3.3.2 While working at the other party's facilities, each
party's chemists and other personnel shall: (i) at all times comply with all of
the other party's safety, security and mutually agreed confidentiality policies
and procedures; and (ii) limit their activities solely to assisting the other
party in the development of the OLED Chemicals.
3.3.3 Except for the stock options specified in Article 12,
each party shall be solely responsible for all salary and other compensation of
its employees and/or researchers (and all tax withholding with respect thereto),
including payment, if any, of employment-related taxes and workers' compensation
insurance premiums.
3.4 The parties agree to undertake the following marketing and/or
business collaboration activities:
3.4.1 The parties shall make every commercially reasonable
effort to identify and pursue opportunities to accelerate and enhance the
commercial success of UDC's OLED business.
3.4.2 The parties shall work together to identify and explore
opportunities to introduce UDC's OLED technology to PPG's businesses. UDC will
use commercially reasonable efforts to provide PPG with early product
development opportunities respecting OLED applications.
3.4.3 [The confidential material contained herein has been
omitted and has been separately filed with the Commission.]
3.5 [The confidential material contained herein has been omitted and
has been separately filed with the Commission.]
3.6 PPG acknowledges that UDC intends to continue working with
Princeton University and USC to explore and develop new and improved OLED
Chemicals, and that PPG's work under the Development Program may involve work on
such chemicals, to the extent set forth in an agreed-upon Statement of Work.
ARTICLE 4 - TECHNOLOGY LICENSES
4.1 UDC hereby grants to PPG, during the term of this Agreement and
subject to the terms and conditions set forth herein, a worldwide, royalty-free,
non-exclusive, non-transferable (except as permitted under Section 15.2 below)
license, with the right to sublicense under Section 4.4, to practice under any
and all UDC Chemical Patents, and to use, improve, enhance and modify any and
all unpatented UDC Proprietary Materials for Chemicals, for the sole and limited
purpose of performing PPG's obligations under Article 3 above, and as required
by the Development Program as contemplated hereunder. UDC shall disclose UDC
Chemical Know-How to PPG as is necessary in connection with PPG's performance
under the Development Program.
4.2 UDC hereby grants to PPG a worldwide, perpetual, royalty-free,
non-exclusive, non-transferable (except as permitted under Section 15.2 below)
license, with the right to sublicense as permitted under Section 4.4 below, to
practice under any and all Patents claiming Developed Technology, solely for
PPG's own use in its current and future business (including Authorized OLED
Applications), but not otherwise in competition with UDC with respect to OLEDs
or OLED Chemicals.
4.3 Upon PPG's written request, UDC shall grant to PPG a worldwide,
perpetual, non-exclusive license to all applicable UDC Patents and UDC Know-How
for the sole and limited purposes of [The confidential material contained herein
has been omitted and has been separately filed with the Commission.] The terms
of such license shall be as the parties may mutually agree in writing, subject
to the following:
4.3.1 For Authorized OLED Applications sold or otherwise
distributed by PPG or its permitted sublicensees, PPG shall pay to UDC [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.]
4.3.2 [The confidential material contained herein has been
omitted and has been separately filed with the Commission.]
4.3.3 UDC shall not grant rights to others that will adversely
affect PPG's license contemplated under this Section 4.3.
4.4 The licenses granted to PPG under this Agreement shall extend to
any division of or subsidiary controlled by PPG. Any sublicenses, in whole or in
part, to other persons shall be subject to UDC's prior written approval, such
approval not to be withheld unreasonably; provided, however, that UDC, in its
sole discretion, may withhold approval of sublicenses other than those for
purposes of permitting such third parties to practice under the applicable
Patents and/or Know-How on PPG's behalf and/or for PPG's benefit or account
(e.g., for purposes of exercising the equivalent of "have made" or "have sold"
rights as such rights are generally understood).
4.5 Notwithstanding anything to the contrary in this Agreement, PPG
acknowledges that some of its rights to certain UDC Chemical Patents derive from
the Princeton License Agreement. UDC agrees that PPG's rights to said UDC
Chemical Patents under this Agreement shall be a sublicense under the provisions
of the Princeton License Agreement.
4.6 Except as set forth in the Supply Agreement, nothing herein shall
restrict PPG, by implication or otherwise, from producing, using, offering to
sell and/or selling any OLED Chemicals that (i) are not claimed in or covered by
any UDC Chemical Patents respecting their compositions of matter, methods of
production or uses in OLEDs, and (ii) can be produced without the use of any UDC
Chemical Know-How or any Developed Technology.
4.7 Except for the license and other rights expressly granted or
promised to PPG under this Agreement, or as otherwise expressly stated in the
Supply Agreement, the parties retain their respective rights to their respective
Patents and Know-How.
ARTICLE 5 - DEVELOPED TECHNOLOGY
5.1 All Developed Technology shall be owned solely by UDC, and PPG
hereby assigns and transfers any and all right, title and interest it may have
in and to such Developed Technology to UDC. Upon UDC's request, PPG shall
execute and deliver to UDC all instruments and other documents, and shall take
such other actions as may be reasonably necessary so that UDC may protect and
defend its rights in and to the Developed Technology. Except as expressly stated
herein or in the Supply Agreement, UDC shall have no obligation of accounting to
PPG with respect to any Developed Technology. Except as stated elsewhere in this
Agreement, UDC shall bear all costs associated with patenting and protecting the
Developed Technology.
5.2 PPG shall direct the Development Team to disclose to UDC all
Developed Technology, by periodically providing copies of laboratory notebooks
at a reasonable frequency requested by UDC, or by such other means as the
parties may agree upon in writing.
ARTICLE 6 - PATENT PROCUREMENT, MAINTENANCE AND ENFORCEMENT
6.1 During the term of this Agreement, PPG shall direct the Development
Team to diligently maintain tangible records of work conducted under the
Development Program ("Records"). These Records shall be kept in bound laboratory
notebooks, each page of which shall be timely dated, signed and witnessed. PPG
will retain the Records for two (2) years beyond the term of this Agreement.
6.2 During the term of this Agreement and for at least two (2) years
thereafter, either party shall have the right to examine Records kept by the
other party hereunder. Each such examination shall take place during normal
business hours of the party whose Records are being examined and on at least ten
(10) business days' advance written notice to such party. Each such examination
shall be at a location selected by the party whose Records are being examined
and in accordance with procedures reasonably acceptable to such party,
including, without limitation, procedures designed to protect any Confidential
Information of the party whose Records are being examined. No party shall be
required to permit examination of its Records more often than once during any
calendar quarter.
6.3 The desirability of applying for, prosecuting and maintaining
Patents claiming the Developed Technology (and the countries in which Patents
should be applied for, prosecuted and maintained) shall be determined by UDC. If
UDC decides to obtain Patent protection for any Developed Technology, PPG shall
reasonably cooperate with UDC in preparing, filing and prosecuting applications
for such Patents and in maintaining any Patents issuing thereon. Except as
stated in Section 6.4 below, UDC shall bear all expenses incurred in preparing,
filing and prosecuting such Patent applications and in maintaining any resulting
Patents.
6.4 UDC shall file, prosecute and maintain all Patents and Patent
applications claiming any Developed Technology, at its sole expense, consistent
with UDC's reasonably established procedures governing the filing, prosecution
and maintenance of all of its Patents and Patent applications, as such
procedures may be modified from time to time but not so as to adversely impact
PPG or its rights under this Agreement. In the event that (i) UDC (or its
trustee or receiver) decides not to prepare, file, or prosecute a Patent
application claiming any Developed Technology in any country (i.e., a
non-elected country) or (ii) UDC (or its trustee or receiver) decides to
discontinue pursuit of or maintenance of any Patents claiming any Developed
Technology, UDC (or its trustee or receiver) shall promptly inform PPG of its
decision in writing, with reasonable effort being made to provide at least sixty
(60) days notice before the date on which any action is due, provided further
that in the case of a decision not to file a Patent application, UDC (or its
trustee or receiver) shall use all reasonable efforts to provide PPG with
sufficient advance notice to enable PPG to file an appropriate Patent
application prior to any public use, disclosure or offer for sale. In such
circumstances, or should UDC fail to provide such notice, PPG shall have the
right, but not the obligation, in its sole discretion and at its sole expense,
to prepare, file, and/or prosecute such Patent application, and/or to maintain
such Patent. [The confidential material contained herein has been omitted and
has been separately filed with the Commission.] In addition, UDC shall promptly
execute all necessary documents and give all reasonable assistance, including
providing PPG with all relevant files and documents, that may be necessary for
PPG to prepare, file, and prosecute such Patent application(s), and/or to
maintain such Patent(s).
6.4.1 In the event PPG becomes the owner of any Patents
claiming any Developed Technology pursuant to Section 6.4, PPG agrees to grant
UDC a license solely for its own use, pursuant to license terms to be agreed
upon by the parties.
6.5 UDC shall provide PPG with copies of all Patent applications
claiming any Developed Technology before they are filed, in order for PPG to
promptly review said applications to be certain that no PPG Confidential
Information is being disclosed without PPG's prior approval. If PPG claims that
its Confidential Information is disclosed in an application submitted for
review, UDC shall not file such application until the claim has been resolved to
the reasonable satisfaction of PPG. The parties shall in good faith attempt to
resolve any such claim as expeditiously as possible.
6.6 Each party shall promptly notify the other party of any known or
reasonably suspected infringement or misappropriation of UDC Proprietary
Materials for Chemicals.
6.7 UDC shall protect and enforce all Patents and Patent applications
claiming any Developed Technology, at its sole expense, consistent with the
manner in which it protects and enforces all of its Patents. Should PPG desire
UDC to take action in response to any infringement or misappropriation of any
Developed Technology or any Patents claiming Developed Technology (each, an
"Unauthorized Use"), PPG shall provide UDC with written notice thereof, which
notice shall describe the circumstances of the Unauthorized Use. Within a
reasonable time (not to exceed sixty (60) days) after PPG gives such written
notice to UDC, UDC shall provide PPG with written notice indicating whether or
not UDC intends to take responsibility for ending the Unauthorized Use. If UDC
(i) gives written notice to PPG that UDC does not intend to take responsibility
for ending the Unauthorized Use, or (ii) gives written notice to PPG that UDC
intends to take responsibility for ending the Unauthorized Use, but UDC, within
one hundred twenty (120) days after providing such notice, has not persuaded the
person engaged in or believed to be engaged in the Unauthorized Use (the
"Unauthorized User") to cease such Unauthorized Use and has not brought and is
not then diligently prosecuting an infringement action against the Unauthorized
User (or at any time thereafter UDC ceases to diligently prosecute such an
infringement action against the Unauthorized User), then PPG shall have the
right, but shall not be obligated, to take responsibility for ending the
Unauthorized Use at PPG's own expense. All damages and other recoveries shall be
retained by the party primarily responsible for ending the Unauthorized Use.
With respect to any action against an Unauthorized User initiated by either
party, the initiating party shall indemnify the other party against any order
for costs that may be made against such other party in such proceedings. Each
party shall reasonably assist the other in its efforts to protect and/or enforce
Patents under this section.
ARTICLE 7 - WARRANTIES AND LIMITATIONS OF LIABILITY
7.1 Each party represents and warrants to the other as follows:
7.1.1 It has the requisite corporate right, power and
authority to enter into and perform this Agreement.
7.1.2 The execution, delivery and performance of this
Agreement by it will not (i) result in the breach of, constitute a default under
or interfere with any contract or other instrument or obligation, whether
written or oral, to which it is currently bound, or (ii) violate any writ,
order, injunction, decree, or any law, statute, rule or regulation applicable to
it.
7.1.3 It shall, to its knowledge following reasonable inquiry,
comply in all material respects with all applicable laws, rules, regulations and
other governmental requirements relating to or affecting its performance under
this Agreement, and shall obtain and maintain all governmental permits, licenses
and consents required in connection therewith.
7.2 UDC represents and warrants as follows:
7.2.1 It owns or has, and shall retain, sufficient rights in
the UDC Proprietary Materials for Chemicals to grant the licenses, sublicenses,
and rights granted to PPG hereunder.
7.2.2 It is unaware of any alleged invalidity of the UDC
Chemical Patents licensed to PPG hereunder and it will immediately notify PPG in
writing of its receipt of any written notices to the contrary.
7.2.3 PPG represents and warrants that it has or will have
sufficient rights to assign to UDC the Developed Technology conceived, created,
made or reduced to practice by the Development Team, pursuant to Section 5.1 of
this Agreement.
7.3 EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT,
NEITHER PARTY MAKES ANY REPRESENTATIONS OR WARRANTIES TO THE OTHER, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF TITLE,
NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH
OTHER REPRESENTATIONS AND WARRANTIES ARE HEREBY DISCLAIMED.
7.4 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY
SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST
PROFITS, BUSINESS OR GOODWILL) IN CONNECTION WITH THIS AGREEMENT OR ANY MATTER
COVERED BY THIS AGREEMENT, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON
BREACH OF CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR ANY OTHER
THEORY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.5 PRINCETON UNIVERSITY AND USC MAKE NO REPRESENTATIONS AND WARRANTIES
AS TO THE PATENTABILITY AND/OR DISCOVERIES INVOLVED IN ANY OF THE UDC CHEMICAL
PATENTS. PRINCETON UNIVERSITY AND USC MAKE NO REPRESENTATION AS TO PATENTS NOW
HELD OR WHICH WILL BE HELD BY OTHERS IN ANY FIELD AND/OR FOR ANY PARTICULAR
PURPOSE. PRINCETON UNIVERSITY AND USC MAKE NO EXPRESS OR IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE 8 -INSURANCE
8.1 Each party shall maintain its standard general liability insurance
or its self-insurance practices to protect against covered damages, costs or
fees (including reasonable attorney's fees) arising out of or relating to any
property damage, bodily injury, sickness, disease or death, caused directly by
any negligent act or omission of either party's personnel while on premises at
the other party's facility, and will name the other party as an additional
insured under such insurance. The insured will provide the other party with a
certificate of such insurance, showing the other as an additional insured, and
notify the other of any material changes to the relevant insurance policies.
ARTICLE 9 - CONFIDENTIAL INFORMATION
9.1 Each party (in such capacity, the "Receiving Party") shall review
and maintain Confidential Information of the other party (in such capacity, the
"Disclosing Party") in accordance with the following terms and conditions:
9.1.1 The Receiving Party agrees to treat all Confidential
Information of the Disclosing Party as confidential and not to disclose such
Confidential Information to any other person, or use such Confidential
Information for any purpose, other than to perform its obligations or exercise
its rights hereunder, except as expressly permitted by the Disclosing Party in
writing.
9.1.2 The Receiving Party shall make only such copies of the
Confidential Information of the Disclosing Party as are reasonable for the
Receiving Party's performance of its obligations or exercise of its rights
hereunder.
9.1.3 At all times, the Receiving Party shall keep and
maintain all Confidential Information of the Disclosing Party in a safe and
secure place with reasonable safeguards to insure that unauthorized persons do
not have access to such Confidential Information. Upon discovery of any
unauthorized disclosure or use of Confidential Information of the Disclosing
Party, the Receiving Party shall immediately notify the Disclosing Party and
take all reasonable steps to prevent its further unauthorized disclosure or use.
9.1.4 The Receiving Party is prohibited from disclosing
Confidential Information of the Disclosing Party to third parties unless such
other person has a need-to-know such Confidential Information in connection with
the Receiving Party's performance of its obligations or exercise of its rights
under this Agreement. In addition, disclosure of such Confidential Information
to any third party shall be permitted only after such third party has agreed in
writing to abide by provisions of confidentiality and restrictive use no less
stringent than those set forth herein. The Receiving Party shall be responsible
for enforcing such provisions against such third party.
9.1.5 With respect to all Confidential Information of the
Disclosing Party in the Receiving Party's possession or control (including,
without limitation, all copies and summaries thereof and regardless of the
format in which such Confidential Information is stored), the Receiving Party,
promptly upon the Disclosing Party's request, shall either: (i) return all such
Confidential Information to the Disclosing Party, or (ii) destroy all such
Confidential Information and certify the same to the Disclosing Party in
writing. Notwithstanding the foregoing sentence, the Receiving Party may retain
one copy of each tangible item of Confidential Information of the Disclosing
Party in a secure location solely for purposes of enforcement of this Agreement;
provided, however, that all such Confidential Information shall continue to be
governed in all respects by the other provisions of this Article. The provisions
of this Section 9.1.5 shall not apply to any Developed Technology.
9.2 Notwithstanding anything to the contrary herein, the provisions of
this Article shall not apply with respect to any Confidential Information of the
Disclosing Party that:
9.2.1 is already in or subsequently enters the public domain
through no fault of the Receiving Party;
9.2.2 is supplied by the Disclosing Party to another person
without a duty of confidentiality;
9.2.3 is known to the Receiving Party or is in its possession
(as shown by tangible evidence) prior to receipt from the Disclosing Party;
9.2.4 is developed independently by the Receiving Party (as
shown by competent written records) without reliance on any Confidential
Information of the Disclosing Party;
9.2.5 is lawfully received by the Receiving Party from another
person without a duty of confidentiality to the Disclosing Party; or
9.2.6 is disclosed by the Receiving Party pursuant to judicial
order or governmental regulation or administrative process so long as the
Receiving Party notifies the Disclosing Party promptly before the disclosure and
cooperates with the Disclosing Party in the event that the Disclosing Party
decides to contest or limit the disclosure.
9.3 To the extent any person that is subject to the restrictions set
forth in this Article is not a party to this Agreement, the terms of this
Article shall apply to such person to the same extent as if he, she or it were a
party hereto.
9.4 Regarding Confidential Information concerning any Developed
Technology, UDC agrees to comply with the provisions of this Article 9 as a
Receiving Party with respect thereto.
9.5 In the event of any breach or threatened breach by any person of
any provision of this Article, the party harmed or likely to be harmed by such
breach or threatened breach shall be entitled to seek injunctive or other
equitable relief restraining such person from engaging in conduct that would
constitute a breach of the obligations of such person under this Article. Such
relief, if granted, shall be in addition to and not in lieu of any other
remedies that may be available, at law or equity, including an action for the
recovery of damages.
ARTICLE 10 - UDC COMMON STOCK AND WARRANTS
10.1 Initial Period Payments.
10.1.1 Attached hereto as Schedule 10.1 is the parties'
agreed-upon written calculation of PPG Estimated Expenses for the period from
the Effective Date through December 31, 2000 (the "Initial Period") based on
expenditures to be made by PPG during that period. On the date of execution of
this Agreement, UDC will deliver to PPG (i) such number of duly authorized,
validly issued, fully paid and non-assessable shares of UDC Common Stock as is
equal to the quotient of (a) the PPG Estimated Expenses for the Initial Period
divided by (b) the Average Price (the "Initial Period Shares"), and (ii) a [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.] term promissory note for the amount of the Initial
Period PPG Estimated Expenses, secured by an interest in all Developed
Technology, which promissory note shall (a) if upon its maturity, the
Registration Statement has not been declared and maintained effective, be
automatically payable in cash for the principal amount thereof plus interest
calculated at [The confidential material contained herein has been omitted and
has been separately filed with the Commission.] percent ([The confidential
material contained herein has been omitted and has been separately filed with
the Commission.]%) per annum (based on a year of 365 days), compounded daily,
and, upon receipt of such cash payment, the Initial Period Shares shall be
returned to UDC and cancelled, or (b) if upon or before its maturity, the
Registration Statement has been declared and maintained effective, be
automatically deemed to have been paid through the issuance of the Initial
Period Shares to PPG, on the date the Registration Statement has become so
effective and the promissory note shall thereupon be cancelled.
10.1.2 During the Initial Period, PPG will notify UDC of any
anticipated increase in the amounts set forth in the Initial Period PPG
Estimated Expenses. UDC will either approve or deny in writing such anticipated
increase and UDC will be deemed to accept any changes in the Statement of Work
and/or a Work Plan resulting from such approval or denial. PPG will not exceed
the amounts set forth in the Initial Period PPG Estimated Expenses without the
prior written consent of UDC.
10.1.3 On or before January 31, 2001, PPG will provide to UDC
PPG's written calculation of PPG Actual Expenses for the Initial Period. If PPG
Actual Expenses are greater than PPG Estimated Expenses for the Initial Period,
then, on or before February 15, 2001, UDC will (i) execute an amendment to the
secured promissory note described in Section 10.1 to increase the principal
amount thereof for the difference between PPG Actual Expenses and PPG Estimated
Expenses for such Initial Period, and (ii) deliver to PPG the number of shares
of UDC Common Stock as is equal to (a) the difference between PPG Actual
Expenses and PPG Estimated Expenses for such Initial Period divided by (b) the
Average Price, which shares shall be deemed to be added to the Initial Period
Shares. If PPG Actual Expenses are less than PPG Estimated Expenses for the
Initial Period, then, on or before February 15, 2001, PPG will deliver to UDC,
at its election, either (i) cash equal to the difference between PPG Actual
Expenses and PPG Estimated Expenses for such Initial Period or (ii) the number
of shares of UDC Common Stock as is equal to (A) the difference between PPG
Actual Expenses and PPG Estimated Expenses for such Initial Period divided by
(B) the Average Price.
10.1.4 On February 15, 2001, UDC will deliver to PPG a warrant
substantially in the form of Exhibit D hereto (a "Warrant") evidencing PPG's
right to purchase, for a seven (7) year period and on the terms and conditions
set forth in the Warrant, the number of shares of UDC Stock as is equal to, for
the Initial Period, PPG Actual Expenses divided by the Average Price.
10.2 Subsequent Annual Payments.
On October 1, 2001 and each October 1 thereafter during the Initial
Term, UDC will provide to PPG a proposed Statement of Work setting forth its
anticipated requirements for the period from January 1 of the subsequent
calendar year through December 31 of such calendar year (each a "Subsequent
Period"). For the purposes of this Agreement, the Initial Period and each
Subsequent Period are sometimes referred to as "Period."
10.2.1 Following receipt of each proposed Statement of Work,
on November 15, 2000 and each November 1 thereafter during the Initial Term, PPG
will provide to UDC PPG's written calculation of PPG Estimated Expense for the
Subsequent Period covered by the proposed Statement of Work. Within fifteen (15)
days of UDC's receipt from PPG of the calculation of PPG Estimated Expenses, UDC
shall either approve or reject such calculation of PPG Estimated Expenses by
written notice to PPG. If UDC rejects PPG's calculation of PPG Estimated
Expenses and provides its written reasons therefor, UDC and PPG, through their
President and Vice-President, Specialty Chemicals, respectively, shall work
together to establish a mutually acceptable estimate before December 31 of the
year prior to which such shares may be earned. Upon the parties' agreement of a
mutually acceptable Statement of Work and PPG Estimated Expenses therefor, the
Statement of Work shall constitute an agreed-upon Statement of Work for such
Subsequent Period. On the first business day immediately following [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.] of the calendar year to which an agreed-upon
Statement of Work relates, UDC will deliver to PPG such number of duly
authorized, validly issued fully paid and non-assessable shares of UDC Common
Stock as is equal to the quotient of (a) the PPG Estimated Expenses for the
period covered by an agreed-upon Statement of Work divided by (b) the Average
Price. Notwithstanding the foregoing sentence, for the first annual period
beginning on [The confidential material contained herein has been omitted and
has been separately filed with the Commission.] following the execution of this
Agreement, in addition to delivering the shares of UDC Common Stock provided in
the foregoing sentence, which shares shall be deemed to be added to the Initial
Period Shares, UDC will execute an amendment to the secured promissory note
described in Section 10.1, to increase the principal amount thereof for [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.] of such period PPG Estimated Expenses. In the event
that on such date as UDC will deliver to PPG shares of UDC Common Stock, the
average closing price per share of UDC Common Stock for the ninety (90) calendar
days prior to such date, as listed in the NASDAQ National Market listing of The
Wall Street Journal, is less than thirty percent (30%) of the price set forth in
clause (a) of the first sentence of Section 1.4, then, in addition to UDC
delivering to PPG shares of UDC Common Stock as set forth above, UDC shall
deliver to PPG cash in an amount equal to the difference between (i) the
aggregate value of UDC Common Stock deliverable to PPG if the Average Price had
been adjusted to the actual average closing price for the ninety (90) calendar
days prior to such date as listed in the NASDAQ National Market listing of The
Wall Street Journal and (ii) the aggregate value of UDC Common Stock actually
delivered to PPG pursuant to the terms of this Agreement.
10.2.2 During each Subsequent Period, PPG will notify UDC of
any anticipated increase in the amounts set forth in the relevant Subsequent
Period Estimated Expenses. UDC will either approve or deny such anticipated
increase and UDC will be deemed to accept any changes in the Statement of Work
resulting from such approval or denial. PPG will not exceed the amounts set
forth in the applicable Annual Estimate without the prior written consent of
UDC. PPG shall deliver to UDC, within thirty (30) days following the end of each
calendar quarter, a summary of actual expenses incurred for such quarter.
10.3 Reconciliation, Warrant.
10.3.1 On or before January 31, 2002 and each January 31
thereafter during the Initial Term, PPG will provide to UDC PPG's written
calculation of PPG Actual Expenses for the immediately preceding Period.
(a) If PPG Actual Expenses are greater than PPG
Estimated Expenses for such Period, then, on or before [The
confidential material contained herein has been omitted and
has been separately filed with the Commission.], UDC will
deliver to PPG the number of shares of UDC Common Stock as is
equal to (i) the difference between, for such Period, PPG
Actual Expenses and PPG Estimated Expenses divided by (ii) the
Average Price.
(b) If PPG Actual Expenses are less than PPG
Estimated Expenses, then on or before [The confidential
material contained herein has been omitted and has been
separately filed with the Commission.], PPG will deliver to
UDC, at its election (i) cash equal to the difference between,
for such Period, PPG Estimated Expenses and PPG Actual
Expenses or (ii) such number of shares of UDC Common Stock as
is equal to (A) the difference between PPG Estimated Expenses
and PPG Actual Expenses for such period divided by (ii) the
Average Price.
10.3.2 On [The confidential material contained herein has been
omitted and has been separately filed with the Commission.], 2002, and each [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.] thereafter during the Initial Term, UDC will also
deliver to PPG a Warrant in the form of Exhibit D evidencing PPG's right to
purchase, on the terms and conditions set forth in the warrant, such number of
shares as is equal to, for the immediately preceding Period, PPG Actual Expenses
divided by the Average Price.
10.4 Representations of PPG.
10.4.1 Purchase Entirely for Own Account. The Securities to be
received by PPG pursuant to this Agreement will be acquired for investment for
PPG's own account, not as a nominee or agent, and not with a view to the resale
or distribution of any part thereof that would violate any applicable federal
securities laws, and PPG has no immediate intention of selling, granting any
participation in, or otherwise distributing the same except to the extent the
same are included in the Registration Statement (as hereinafter defined). By
executing this Agreement, PPG further represents that PPG does not have any
contract, undertaking, agreement or arrangement with any person to sell,
transfer or grant participations to such person or to any third person, with
respect to any of the Securities. PPG represents that it has full power and
authority to enter into this Agreement.
10.4.2 Accredited Status. PPG is an "accredited investor"
within the meaning of Commission Rule 501 of Regulation D, as presently in
effect.
10.4.3 Restricted Securities. PPG understands that the
Securities it is receiving are characterized as "restricted securities" under
the federal securities laws inasmuch as they are being acquired from UDC in a
transaction not involving a public offering and that under such laws and
applicable regulations such Securities may be resold without registration under
the 1933 Act, only in certain limited circumstances. In this connection, PPG
represents that it is familiar with Commission Rule 144, as presently in effect,
and understands the resale limitations imposed thereby and by the 1933 Act.
10.4.4 Legends. It is understood that the certificates
evidencing the Securities of UDC which may be issued pursuant to this Agreement
may bear one or all of the following legends:
"These securities have not been registered under the
Securities Act of 1933, as amended. They may not be sold,
offered for sale, pledged or hypothecated in the absence of a
registration statement in effect with respect to the
securities under such Act or an opinion of counsel
satisfactory to the Corporation that such registration is not
required or unless sold pursuant to Rule 144 of such Act."
and any legend required by any applicable state securities laws. To the extent
that such legends are no longer applicable, UDC shall cause its transfer agent
to remove the legends upon request by PPG.
10.5 Certain Covenants of UDC.
10.5.1 Reservation of Shares. UDC shall at all times have
authorized, and reserved for the purpose of issuance, a sufficient number of
shares of UDC Common Stock to provide for the Warrant Shares. UDC shall not
reduce the number of shares of UDC Common Stock reserved for issuance of the
Warrant Shares without the consent of PPG. If at any time the number of shares
of Common Stock authorized and reserved for issuance is below the number of
Warrant Shares, UDC will promptly take all corporate action necessary to
authorize and reserve a sufficient number of shares, including, without
limitation, calling a special meeting of shareholders to authorize additional
shares to meet UDC's obligations under this Section 10.5.1, in the case of an
insufficient number of authorized shares, and using its commercially reasonable
efforts to obtain shareholder approval of an increase in such authorized number
of shares.
10.5.2 Listing. UDC shall promptly secure the listing of the
UDC Common Shares upon The Nasdaq SmallCap Market, The Nasdaq National Market or
such other national securities exchange or automated quotation system, if any,
upon which shares of Common Stock are then listed (subject to official notice of
issuance). So long as PPG owns any of the Securities, UDC shall maintain, so
long as any other shares of UDC Common Stock shall be so listed, such listing of
all Common Shares, and shall comply in all respects with UDC's reporting, filing
and other obligations under the bylaws or rules of the National Association of
Securities Dealers and such exchanges, as applicable.
10.5.3 Reports Under 1934 Act. With a view to making available
to PPG the benefits of Rule 144 and any successor or other rule or regulation of
the Commission that may at any time permit PPG to sell the shares of UDC Common
Stock issuable pursuant to this Agreement to the public without registration,
UDC agrees to: (a) make and keep public information available, as those terms
are understood and defined in Rule 144, at all times; (a) file with the
Commission in a timely manner all reports and other documents required of UDC
under the 1933 Act and the 1934 Act; and (c) furnish to PPG, so long as PPG owns
any Shares, forthwith upon request (i) a written statement by UDC that it has
complied with the reporting requirements of Rule 144, the 1933 Act and the 1934
Act, (ii) a copy of the most recent annual or quarterly report of UDC and such
other reports and documents so filed by UDC, and (iii) such other information as
may be reasonably requested in availing PPG of any rule or regulation of the
Commission which permits the selling of any Shares without registration.
10.6 Certain Sales.
10.6.1 Short Sales. During the term of this Agreement, PPG and
its affiliates agree not to engage in, or encourage any third party from
engaging in, "short sales" (as such term is defined in Rule 3b-3 of the ▇▇▇▇
▇▇▇) of UDC's securities.
10.6.2 Prohibited Sales During Certain Periods. During the
ninety (90) calendar day period prior to and including [The confidential
material contained herein has been omitted and has been separately filed with
the Commission.] of each calendar year during the Initial Term (each a "PPG
Restricted Period"), PPG shall not offer, sell or contract to sell shares of UDC
Common Stock received hereunder or any securities convertible into or
exchangeable or exercisable for any share of UDC Common Stock, to the extent
that such sale would exceed, on any one (1) day during such PPG Restricted
Period, twenty-five percent (25%) of the average daily trading volume of shares
of UDC Common Stock for the ninety (90) calendar day period immediately
preceding the PPG Restricted Period (the "PPG Volume Limit"); provided however
that the PPG Volume Limit shall not apply to any private placement of shares of
UDC Common Stock by PPG. During each PPG Restricted Period, PPG shall not enter
into any swap or hedge arrangement that transfers, in whole or in part, any of
the economic consequences of ownership of shares of UDC Common Stock in excess
of the PPG Volume Limit, or publicly disclose the intention to make any offer,
sale or contract to sell or to enter into any swap or hedge in excess of the PPG
Volume Limit.
10.7 PPG Representation on UDC Board. If, at any time during the term
of this Agreement, PPG's ownership of UDC Common Stock equals or exceeds five
percent (5%) of the total number of issued and outstanding shares of UDC Common
Stock, then PPG shall be entitled to designate one (1) individual for election
to UDC's Board of Directors and UDC shall use all commercially reasonable
efforts to cause such designee to be elected to UDC's Board of Directors within
thirty (30) days of PPG's designation, including but not limited to recommending
such designee for election, causing any shares for which UDC has or can control
voting rights with respect thereto to be voted in favor of such designee,
causing broker votes to be cast in favor of such designee and amending its
articles of incorporation and/or by-laws and/or adopting any resolutions for
increasing the number of directors on the UDC Board, if necessary to accommodate
the designee. If, at any time during the term of this Agreement, PPG's ownership
of UDC Common Stock equals or exceeds twenty-five percent (25%) of the total
number of issued and outstanding shared of UDC Common Stock, then PPG shall be
entitled to designate one quarter of the total members of UDC's Board of
Directors, with any fraction rounded up to the nearest whole number and UDC
shall use all commercially reasonable efforts to cause such designees to be
elected to UDC's Board of Directors within thirty (30) days of PPG's
designation, all as set forth in the preceding sentence. UDC will support PPG's
acquisition of up to twenty-five percent (25%) of UDC's Common Stock, either
through open market purchases or UDC treasury shares, at UDC's discretion.
10.8 Preemptive Rights.
10.8.1 Definition. For the purposes of this Section 10.8,
"Eligible Offering" means any future offering of (i) UDC Common Stock or (ii)
other equity securities of UDC or any security convertible into or exchangeable
for or carrying rights or options to purchase any UDC Common Stock (collectively
"UDC Equity Securities"). Notwithstanding the foregoing, an Eligible Offering
shall not include sales or issuances of:
(a) shares of UDC Common Stock (and/or options,
warrants or other UDC Common Stock purchase rights issued
pursuant to such options, warrants or other rights) issued or
to be issued to employees, officers or directors of, or
consultants or advisors to UDC or any subsidiary, pursuant to
compensation plans, agreements, or other arrangements that are
approved by UDC's Board of Directors to the extent that such
plans, agreements or other arrangements do not exceed, in the
aggregate, twenty percent (20%) of the number of shares of UDC
Common Stock outstanding, not including those warrants and
options (other than those issued under the UDC Stock Option
Plan) listed on Exhibit G hereto;
(b) stock issued pursuant to any rights or agreements
outstanding as of, and as the same exist on, the date of this
Agreement, options and warrants outstanding as of, and as the
same exist on, the Effective Date and stock issued pursuant to
such existing rights or agreements after the Effective Date
pursuant to their terms, as the same exist on, the Effective
Date all to the extent that such rights, agreements, options
and warrants are listed on Exhibit G hereto;
(c) shares of UDC Common Stock issued in connection
with any stock split, stock dividend or recapitalization by
UDC;
(d) shares of UDC Common Stock issued upon exercise
of the Warrants; and
(e) up to 100,000 of UDC Equity Securities issued by
UDC in each calendar year during the Initial Term.
10.8.2 Eligible Offering. Pursuant to the terms of this
Section 10.8, UDC hereby grants to PPG the options to purchase any UDC Common
Stock in an amount that bears the same ratio to the aggregate amount of
securities covered by such Eligible Offering as the number of shares owned by
PPG bears at such time to the total number of shares owned by all UDC Common
stockholders at the time.
10.8.3 Notice of Eligible Offering. Before issuing any
securities pursuant to an Eligible Offering, UDC shall give written notice
thereof to PPG and each other stockholder entitled to preemptive rights. Such
notice must specify the securities UDC proposes to issue, the price to be paid
for such securities (or if such price is to be determined at or prior to the
closing of such issuance, the method in which such price is calculated) and any
other consideration that UDC intends to receive for the securities being issued.
In the event such securities comprise of warrants to purchase UDC Common Stock,
such warrants shall be valued using the Black-Scholes method of valuation. For a
period of twenty (20) business days following the delivery of such notice, PPG
will be entitled to elect, by written notice to UDC, to purchase up to the
portion of the securities being sold in the Eligible Offering calculated in
accordance with Section 10.8.2; provided, however, that if two (2) or more
securities are proposed to be sold as a "unit" in an Eligible Offering, any such
PPG election must relate to such unit of securities. If any such offer is
accepted by PPG, UDC shall sell to PPG and PPG shall purchase from UDC, for the
price and on the terms set forth in UDC's notice of such Eligible Offering, the
number of securities that PPG has elected to purchase. UDC then may sell the
remainder of the securities to be sold in the Eligible Offering, if any,
pursuant to the provisions set forth in Section 10.8.4.
10.8.4 Sale to Third Parties. If PPG does not make an election
to exercise its rights pursuant to this Section 10.8 with respect to any
securities included in an Eligible Offering within the twenty (20) business day
period described in Section 10.8.3, or if there remain securities to be sold
after the sale of securities to PPG as set forth in Section 10.8.3, then UDC may
issue such securities to third parties, but only for the price and consideration
of the type and not less than the amount set forth in UDC's notice to PPG and
only within a period of sixty (60) business days thereafter.
10.9 Acquisition Transactions. If all or substantially all of the
assets of UDC, or any material portion of the OLED assets of UDC are acquired by
a third party during the Initial Term or any extension thereof, or if the
shareholders of UDC approve a merger, consolidation, share exchange, division or
other disposition as a result of which the shareholders of UDC immediately prior
to the transaction will not own a majority of the voting power of the surviving
or resulting corporation or any corporation which acquires the stock of UDC, or
if UDC assigns or transfers this Agreement to a third party, then either PPG or
UDC shall, within ninety (90) days following such event, have the right to
terminate this Agreement, in which case UDC will distribute to PPG the
Acquisition Amount of UDC Common Stock and a warrant evidencing PPG's right to
purchase the Acquisition Amount of UDC Common Stock on the terms and conditions
set forth in the Warrant attached hereto as Exhibit E. The "Acquisition Amount"
shall be calculated by multiplying the most recent PPG Estimated Expenses (as
calculated pursuant to Section 10.2.2), or the PPG Estimated Expenses for the
Initial Period (as calculated pursuant to Section 10.2.1) if it is the most
recent estimate provided pursuant to this Agreement, by the number of years (and
any fraction thereof) remaining in the Initial Term.
ARTICLE 11 - REGISTRATION RIGHTS
11.1 Definitions. For the purposes of this Article 11, "Registrable
Securities" means the parties good faith estimate of the number of shares of UDC
Common Stock issuable to PPG (including shares issuable upon exercise of the
Warrants) during the Initial Term.
11.2 Registration Rights With Respect to the Securities.
11.2.1 UDC agrees that it will prepare and file with the
Commission, within thirty (30) days after the execution of this Agreement, a
registration statement (on Form S-3, or other appropriate form of registration
statement) under the 1933 Act (the "Registration Statement"), together with such
state law qualifications and other compliances with applicable law, at the sole
expense of UDC, in respect of PPG, so as to permit a public offering and resale
of the Registrable Securities under the 1933 Act by PPG. UDC shall use its
commercially reasonable efforts to cause the Registration Statement to become
effective as promptly as possible after the filing thereof and within five (5)
days after Commission clearance. UDC will within such five (5) days request
acceleration of effectiveness.
11.2.2 UDC will maintain the Registration Statement or any
post-effective amendment filed under this Article 11 hereof effective under the
1933 Act until the earlier of (i) the date that none of the Registrable
Securities are or may become issued and outstanding, (ii) the date that all of
the Registrable Securities have been sold pursuant to the Registration
Statement, (iii) the date the holders thereof receive an opinion of counsel to
UDC, which counsel shall be reasonably acceptable to PPG, that the Registrable
Securities may be sold under the provisions of Rule 144 without limitation as to
volume or a requirement of "brokers transactions," (iv) all Registrable
Securities have been otherwise transferred to persons who may trade such shares
without restriction under the 1933 Act, and UDC has delivered a new certificate
or other evidence of ownership for such Registrable Securities not bearing a
restrictive legend, or (v) all Registrable Securities may be sold without any
time, volume or manner limitations pursuant to Rule 144(k) or any similar
provision then in effect under the 1933 Act in the opinion of counsel to UDC,
provided such counsel is reasonably acceptable to PPG. If, under Commission
rules or policies of the Commission staff, any of the Registrable Securities for
any reason cannot be included in the Registration Statement initially filed by
UDC and must be included in a separate registration statement, UDC shall file
all such additional registration statements as may be needed to permit PPG to
offer and resell to the public all of the Registrable Securities, and the term
"Registration Statement" shall for purposes of this Agreement be deemed to
include all such additional registration statements.
11.2.3 All fees, disbursements and out-of-pocket expenses and
costs incurred by UDC in connection with the preparation and filing of the
Registration Statement under this Article 11 and in complying with applicable
federal and state securities laws (including, without limitation, all attorneys'
and accountants' fees of UDC), shall be borne by UDC. PPG shall bear the cost of
underwriting and/or brokerage discounts, fees and commissions, if any,
applicable to its sale of the Securities being registered and the fees and
expenses of its counsel. PPG and its counsel shall have a reasonable period, of
not less than five (5) business days for the Registration Statement initially to
be filed hereunder and for each amendment or subsequently filed Registration
Statement, to review the proposed Registration Statement or any amendment
thereto, prior to filing with the Commission, and UDC shall provide PPG with
copies of any comment letters received from the Commission and each written
response thereto with respect thereto within two (2) business days of receipt or
sending thereof. UDC shall make reasonably available for inspection by PPG, any
underwriter participating in any disposition pursuant to the Registration
Statement, and any attorney, accountant or other agent retained by PPG or any
such underwriter all relevant financial and other records, pertinent corporate
documents and properties of UDC and its subsidiaries, and cause UDC's officers,
directors and employees to supply all information reasonably requested by such
PPG or any such underwriter, attorney, accountant or agent in connection with
the Registration Statement, in each case, as is customary for similar due
diligence examinations; provided, however, that all records, information and
documents that are designated in writing by UDC, in good faith, as confidential,
proprietary or containing any material non-public information shall be kept
confidential by PPG and any such underwriter, attorney, accountant or agent
(pursuant to an appropriate confidentiality agreement in the case of any such
PPG or agent), unless such disclosure is made pursuant to judicial process in a
court proceeding (after first giving UDC an opportunity promptly to seek a
protective order or otherwise limit the scope of the information sought to be
disclosed) or is required by law, or such records, information or documents
become available to the public generally or through a third party not in
violation of an accompanying obligation of confidentiality; and provided further
that, if the foregoing inspection and information gathering would otherwise
disrupt UDC's conduct of its business, such inspection and information gathering
shall, to the maximum extent possible, be coordinated on behalf of PPG and the
other parties entitled thereto by one firm of counsel designated by and on
behalf of the majority in interest of PPG and other parties. To the extent
necessary, UDC shall qualify any of the Registrable Securities for sale in such
states as such PPG reasonably designates except that UDC shall not be required
to qualify in any state which will require an escrow relating to UDC and/or the
sellers of Registrable Securities, or which will require UDC to qualify to do
business in such state or require UDC to file therein any general consent to
service of process. UDC at its expense will supply PPG with copies of the
Registration Statement and the prospectus included therein and other related
documents in such quantities as may be reasonably requested by PPG.
11.2.4 If UDC delivers to PPG a certificate signed by UDC's
President and Chief Operating Officer and Chief Financial Officer to the effect
that (i) UDC is aware of nonpublic information concerning UDC that has not been
disclosed in the Registration Statement either by incorporation of 1934 Act
filings by UDC or by information included directly in the Registration
Statement, and (ii) in the good faith judgment of UDC, the disclosure of such
information in the Registration Statement may have a material adverse effect on
the business, operations, properties, assets, prospects or condition (financial
or otherwise) of UDC, then, PPG agrees not to effect any sales of Registrable
Securities pursuant to the Registration Statement until such time as PPG (a) is
advised in writing by UDC that the use of the applicable prospectus contained in
such Registration Statement may be resumed, (b) has received copies of a
supplemental or amended prospectus, if applicable, and (c) has received copies
of any additional or supplemental filings, if any, which are incorporated or
deemed to be incorporated by reference in such prospectus. UDC agrees to, at the
request of PPG, prepare any supplement or amendment to the applicable prospectus
or to make any additional or supplemental filings so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus will
not contain any untrue statement of material fact or omit to state any fact
necessary to make the statements therein not misleading.
11.3 PPG's Obligations.
11.3.1 Cooperation with Company. PPG will cooperate with UDC
in all respects in connection with this Article 11, including timely supplying
all information reasonably requested by UDC (which shall include all information
regarding PPG and proposed manner of sale of the Registrable Securities required
to be disclosed in the Registration Statement) and executing and returning all
documents reasonably requested in connection with the registration and sale of
the Registrable Securities.
11.3.2 "Market Stand-Off" Agreement. Unless otherwise
consented to in writing by the managing underwriter, PPG shall not effect any
public sale or distribution of equity securities of UDC or any securities
convertible into or exchangeable or exercisable for such securities during the
seven days prior to and the 90 days after any underwritten registration (except
as part of such underwritten registration) if PPG participates in such
registration. UDC may impose stop-transfer instructions with respect to the
shares of Common Stock subject to the foregoing restriction until the end of any
such period.
11.4 Registration Procedures. In addition to the requirements of
Section 11.2, UDC shall (except as otherwise expressly provided in this
Agreement), as expeditiously as possible, subject to PPG's compliance with
Section 11.3.1:
(a) prepare and file with the Commission such
amendments and supplements to the Registration Statement and
the prospectus used in connection therewith as may be
necessary to keep such registration statement effective and to
comply with the provisions of the 1933 Act with respect to the
sale or other disposition of all securities covered by such
registration statement (including prospectus supplements with
respect to the sales of securities from time to time in
connection with a registration statement pursuant to Rule 415
promulgated under the ▇▇▇▇ ▇▇▇) and (ii) take all lawful
action such that each of (A) the Registration Statement and
any amendment thereto does not, when it becomes effective,
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein, not misleading and
(B) the Prospectus forming part of the Registration Statement,
and any amendment or supplement thereto, does not at any time
during the Registration Period include an untrue statement of
a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not
misleading.
(b) prior to the filing with the Commission of any
Registration Statement (including any amendments thereto) and
the distribution or delivery of any prospectus (including any
supplements thereto), provide draft copies thereof to PPG and
reflect in such documents all such comments as PPG (and its
counsel) reasonably may propose and (ii) furnish to PPG such
numbers of copies of a prospectus including a preliminary
prospectus or any amendment or supplement to any prospectus,
as applicable, in conformity with the requirements of the 1933
Act, and such other documents, as PPG may reasonably request
in order to facilitate the public sale or other disposition of
the securities owned by PPG.
(c) to the extent necessary, register and qualify the
Securities covered by the Registration Statement under
applicable state securities laws, and do any and all other
acts and things which may be reasonably necessary or advisable
to enable PPG to consummate the public sale or other
disposition in such jurisdictions within the United States of
America of the securities owned by such PPG, except that UDC
shall not be required to qualify in any state which will
require an escrow relating to UDC and/or the sellers of
Registrable Securities, or which will require UDC to qualify
to do business in such state or require UDC to file therein
any general consent to service of process.
(d) subject to the provisions of Section 11.2.4
hereof, notify PPG at any time when a prospectus relating
thereto covered by the Registration Statement is required to
be delivered under the 1933 Act, of the happening of any event
of which it has knowledge as a result of which the prospectus
included in the Registration Statement, as then in effect,
includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading in the
light of the circumstances then existing, and UDC shall
prepare and file a curative amendment or 1934 Act filing
deemed incorporated in the Registration Statement under
applicable provisions of this Article 11 as quickly as
commercially possible.
(e) as promptly as practicable after becoming aware
of such event, notify PPG who holds Securities being sold (or,
in the event of an underwritten offering, the managing
underwriters) of the issuance by the Commission or any state
authority of any stop order or other suspension of the
effectiveness of the Registration Statement at the earliest
possible time and take all lawful action to effect the
withdrawal, recission or removal of such stop order or other
suspension.
(f) cooperate with PPG to facilitate the timely
preparation and delivery of certificates for the Securities to
be offered pursuant to the Registration Statement and enable
such certificates for the Securities to be in such
denominations or amounts, as the case may be, as PPG
reasonably may request and registered in such names as PPG may
request; and, within three (3) business days after a
Registration Statement which includes Securities is declared
effective by the Commission, deliver and cause legal counsel
selected by UDC to deliver to the transfer agent for the
Securities (with copies to PPG whose Securities are included
in such Registration Statement) an appropriate instruction
and, to the extent necessary, an opinion of such counsel.
(g) take all such other lawful actions reasonably
necessary to expedite and facilitate the disposition by PPG of
the Securities in accordance with the intended methods
therefor provided in the prospectus which are customary for
issuers to perform under the circumstances.
(h) in the event of an underwritten offering elected
by PPG, promptly include or incorporate in a Prospectus
supplement or post-effective amendment to the Registration
Statement such information as the managers reasonably agree
should be included therein and to which UDC does not
reasonably object and make all required filings of such
Prospectus supplement or post-effective amendment as soon as
practicable after it is notified of the matters to be included
or incorporated in such Prospectus supplement or
post-effective amendment; and enter into and perform its
obligations as UDC under an underwriting agreement, in usual
and customary form, with the managing underwriter of such
offering.
(i) cause all Securities registered pursuant
hereunder to be listed timely on each securities exchange or
quotation system on which similar securities issued by UDC are
then listed.
(j) use its best efforts to furnish, at the request
of PPG, on the date that such Securities are delivered to the
underwriters for sale in connection with a registration
pursuant to this Article 11, if such securities are being sold
through underwriters (i) an opinion, dated such date, of the
counsel representing UDC for the purposes of such
registration, in form and substance as is customarily given to
underwriters in an underwritten public offering, addressed to
the underwriters, if any, and to PPG and (ii) a letter dated
such date, from the independent certified public accountants
of UDC, in form and substance as is customarily given by
independent certified public accountants to underwriters in an
underwritten public offering, addressed to the underwriters,
if any, and to PPG.
(k) maintain a transfer agent and CUSIP number for
its Common Stock.
11.5 Rank. UDC shall not be precluded from granting registration rights
to other persons, provided that no such grant shall interfere with or purport to
delay or subordinate any of PPG's rights under this Agreement.
11.6 Indemnification.
11.6.1 UDC agrees to indemnify, defend and hold harmless PPG,
and any underwriter (as defined in the ▇▇▇▇ ▇▇▇) for PPG, and each person, if
any, who controls PPG or underwriter within the meaning of the 1933 Act or 1934
Act ("Selling Person") against any losses, claims, damages or liabilities, joint
or several (which shall, for all purposes of this Agreement, include, but not be
limited to, all reasonable costs of defense and investigation and all reasonable
attorneys' fees), to which the Selling Person may become subject, under the 1933
Act, the 1934 Act, any state securities law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, or any related
preliminary prospectus, final prospectus or amendment or supplement thereto, or
arise out of or are based upon the omission or alleged omission to state therein
of a material fact required to be stated therein or necessary to make the
statements therein not misleading, or arise out of or are based upon any
violation or alleged violation by UDC of the 1933 Act, 1934 Act, or any state
securities law, or any rules or regulations of governmental agencies promulgated
thereunder; provided, however, that UDC will not be liable in any such case to
the extent that any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in the Registration Statement, preliminary prospectus,
final prospectus or amendment or supplement thereto in reliance upon, and in
conformity with, written information furnished to UDC by the Selling Person,
specifically for use in the preparation thereof. This Section shall not inure to
the benefit of any Selling Person with respect to any person asserting such
loss, claim, damage or liability who purchased the Securities which are the
subject thereof if, and to the extent such loss or other claim arises from the
fact or alleged fact that, the Selling Person failed to send or give (in
violation of the 1933 Act or the rules and regulations promulgated thereunder) a
copy of the prospectus contained in such Registration Statement to such person
at or prior to time required under the 1933 Act, where the Selling Person was
obligated to do so under the 1933 Act or the rules and regulations promulgated
thereunder. This indemnity agreement will be in addition to any liability which
UDC may otherwise have.
11.6.2 Each Selling Person, severally and not jointly, agrees
that it will indemnify and hold harmless UDC, and each officer, director of UDC
or person, if any, who controls UDC within the meaning of the 1933 Act, against
any losses, claims, damages or liabilities (which shall, for all purposes of
this Agreement, include, but not be limited to, all reasonable costs of defense
and investigation and all reasonable attorneys' fees) to which UDC or any such
officer, director or controlling person may become subject under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration Statement,
or any related preliminary prospectus, final prospectus or amendment or
supplement thereto, or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, but in each case
only to the extent that such untrue statement or alleged untrue statement or
omission or alleged omission was made in the Registration Statement, preliminary
prospectus, final prospectus or amendment or supplement thereto in reliance
upon, and in conformity with, written information furnished to UDC by such
Selling Person, specifically for use in the preparation thereof. This indemnity
agreement will be in addition to any liability which the Selling Person may
otherwise have. Notwithstanding anything to the contrary herein, the Selling
Person shall not be liable under this Section for any amount in excess of the
net proceeds to such Selling Person as a result of the sale of Securities
pursuant to the Registration Statement.
11.6.3 Promptly after receipt by an indemnified party under
this Article 11 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the indemnifying
party under this Article 11, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability which it may have to any indemnified
party except to the extent of actual prejudice demonstrated by the indemnifying
party. In case any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate in, and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, assume the defense
thereof, subject to the provisions herein stated and after notice from the
indemnifying party to such indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this Article 11 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation, unless the indemnifying party shall not
pursue the action to its final conclusion. The indemnified party shall have the
right to employ separate counsel in any such action and to participate in the
defense thereof, but the fees and expenses of such counsel shall not be at the
expense of the indemnifying party if the indemnifying party has assumed the
defense of the action with counsel reasonably satisfactory to the indemnified
party; provided that if the indemnified party is the Selling Person, the fees
and expenses of such counsel shall be at the expense of the indemnifying party
if (i) the employment of such counsel has been specifically authorized in
writing by the indemnifying party, or (ii) the named parties to any such action
(including any impleaded parties) include both the Selling Person and the
indemnifying party and the Selling Person shall have been advised by such
counsel that there may be one or more legal defenses available to the
indemnifying party different from or in conflict with any legal defenses which
may be available to the Selling Person (in which case the indemnifying party
shall not have the right to assume the defense of such action on behalf of the
Selling Person, it being understood, however, that the indemnifying party shall,
in connection with any one such action or separate but substantially similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances, be liable only for the reasonable fees and
expenses of one separate firm of attorneys for the Selling Person, which firm
shall be designated in writing by the Selling Person). No settlement of any
action against an indemnified party shall be made without the prior written
consent of the indemnified party, which consent shall not be unreasonably
withheld. All fees and expenses of the indemnified party (including reasonable
costs of defense and investigation in a manner not inconsistent with this
Section and all reasonable attorneys' fees and expenses) shall be paid to the
indemnified party, as incurred, within ten (10) business days of written notice
thereof to the indemnifying party (regardless of whether it is ultimately
determined that an indemnified party is not entitled to indemnification
hereunder; provided, that the indemnifying party may require such indemnified
party to undertake to reimburse all such fees and expenses to the extent it is
finally judicially determined that such indemnified party is not entitled to
indemnification hereunder).
11.6.4 In order to provide for just and equitable contribution
under the 1933 Act in any case in which (i) the indemnified party makes a claim
for indemnification pursuant to Section 11.6 hereof but is judicially determined
(by the entry of a final judgment or decree by a court of competent jurisdiction
and the expiration of time to appeal or the denial of the last right of appeal)
that such indemnification may not be enforced in such case notwithstanding the
fact that the express provisions of Section 11.6 hereof provide for
indemnification in such case, or (ii) contribution under the 1933 Act may be
required on the part of any indemnified party, then UDC and the applicable
Selling Person shall contribute to the aggregate losses, claims, damages or
liabilities to which they may be subject (which shall, for all purposes of this
Agreement, include, but not be limited to, all reasonable costs of defense and
investigation and all reasonable attorneys' fees), in either such case (after
contribution from others) on the basis of relative fault as well as any other
relevant equitable considerations. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by UDC on the one hand or the applicable Selling
Person on the other hand, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
UDC and the Selling Person agree that it would not be just and equitable if
contribution pursuant to this Section were determined by pro rata allocation or
by any other method of allocation which does not take account of the equitable
considerations referred to in this Article 11. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this Article 11 shall be deemed
to include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 11.6.4, in no case shall any
Selling Person be liable or responsible for any amount in excess of the net
proceeds received by such Selling Person from the offering of Registrable
Securities and UDC shall be liable and responsible for any amount in excess of
such proceeds. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
11.6.5 Notwithstanding any other provision of this Article 11,
in no event shall (i) PPG be required to undertake liability to any person under
this Article 11 for any amounts in excess of the dollar amount of the net
proceeds to be received by such PPG from the sale of such PPG's Securities
(after deducting any fees, discounts and commissions applicable thereto)
pursuant to any Registration Statement under which such Securities are to be
registered under the 1933 Act and (ii) any underwriter be required to undertake
liability to any person hereunder for any amounts in excess of the aggregate
discount, commission or other compensation payable to such underwriter with
respect to the Securities underwritten by it and distributed pursuant to the
Registration Statement.
11.7 Liquidated Damages. The parties hereto agree that PPG will suffer
damages if UDC fails to fulfill its obligations under Article 11, and that it
would not be feasible to ascertain the extent of such damages. Accordingly:
11.7.1 if the Registration Statement is not filed within
thirty (30) days of the date of execution of this Agreement, UDC will be
obligated to pay liquidated damages to PPG in the form of shares of UDC Common
Stock in an amount equal to the quotient of $25,000 divided by the Average Price
for each month or portion thereof during which the Registration Statement has
not been filed after such thirty (30) day period;
11.7.2 if the Registration Statement has not been declared
effective within the earlier of (a) one hundred twenty (120) days of the date of
its filing or (b) one hundred fifty (150) days of the execution of this
Agreement, then UDC will be obligated to pay liquidated damages to PPG in the
form of shares of UDC Common Stock in an amount equal to the quotient of $25,000
divided by the Average Price for each month or portion thereof during which the
Registration Statement has not been declared effective after such one hundred
twenty (120) day period; and
11.7.3 if the Registration Statement has not been declared
effective within the earlier of (a) one hundred eighty (180) days of the date of
its filing or (ii) two hundred ten (210) days of the execution of this
Agreement, provided such delay is not due solely to the fault of PPG to comply
with its obligations under Section 11.3, then PPG may unilaterally terminate
this Development Agreement, which Development Agreement shall be null and void
and, notwithstanding any other provision hereof, PPG shall have no liability
with respect to such termination or otherwise; provided further that UDC shall
not be required to pay liquidated damages to PPG pursuant to Section 11.7.2 if
PPG elects to terminate the Development Agreement pursuant to this Section
11.7.3 and receives full payment in cash of the promissory note, bearing
interest as described in Section 10.1 of this Agreement on the maturity date
thereof.
Notwithstanding anything to the contrary in this Section 11.7, UDC
shall not be required to pay liquidated damages to PPG if PPG failed to comply
with its obligations under Section 11.3.
ARTICLE 12 - STOCK OPTIONS
12.1 Option Grants. At the beginning of each Period beginning on
January 1, 2001, upon the approval of PPG, UDC shall issue to employees of PPG
("PPG Employees") who are assigned full-time to the Development Program, such
number of non-qualified stock options to purchase shares of UDC Common Stock
("Options") as is, in the good faith estimation of UDC, consistent with the
option grants made by UDC to UDC employees at similar levels and performing
similar functions. PPG Employees who are assigned full-time to the Development
Program after the beginning of a Period shall be issued such prorated number of
Options as is determined in accordance with the preceding sentence.
12.2 Option Terms. Options shall vest one year from the date of grant
and, with respect to any individual PPG Employee, such vesting shall be
contingent upon such employee continuing to be assigned full-time to the
Development Program on the vesting date, provided that if the Development
Program is terminated all such Options shall become immediately vested and
exercisable for a period of ninety (90) days. In the event any employee does not
continue to be assigned full-time to the Development Program by reason of an
involuntary termination without cause, such employee will receive the benefit of
any additional exercise period with respect to the Options that UDC provides to
other similarly situated UDC employees who are terminated. If at any time during
the Period with respect to a grant of Options was made to a PPG Employee, such
PPG Employee ceases to be assigned full-time to the Development Program, such
nonvested Options shall be forfeited. If at any time after the Period with
respect to a grant of Options was made to a PPG Employee, such PPG Employee
ceases to be assigned full time to the Development Program, such Option (to the
extent vested) shall be exercisable in accordance with the terms set forth in
the UDC's 1995 Stock Option Plan, provided that the PPG Employee shall have
ninety (90) days following termination of assignment to exercise any vested
Options.
12.3 Bonus Options. If at any time UDC grants to employees of UDC
"bonus" options (that is, options granted to UDC employees other than at the
beginning of their service to UDC), UDC shall make available to PPG a pool of
"bonus" Options for distribution to PPG employees on the Development Team, as
is, in the good faith estimation of UDC, consistent with the criteria used to
issue "bonus" options to employees of UDC. Upon approval by PPG, the bonus
Options shall be issued to PPG employees on the Development Team by UDC in equal
or unequal amounts as determined in the discretion of PPG after consultation
with UDC. The terms of such Options shall be consistent with the options granted
to UDC employees.
ARTICLE 13 - TERM AND TERMINATION
13.1 The initial term (the "Initial Term") of this Agreement shall be
from the Effective Date through December 31, 2005. Thereafter, the term of this
Agreement shall be extended automatically for additional twelve (12) month
periods (each, a "Renewal Term") unless and until either party provides the
other with at least twelve (12) months' prior written notice that this Agreement
shall expire at the end of the Initial Term or the upcoming Renewal Term, as
applicable.
13.2 Either party may terminate this Agreement if the other party
breaches any material term, condition or provision of this Agreement and such
breach continues uncured for a period of forty-five (45) days (thirty (30) days
for nonpayment of amounts due and owing hereunder) after the breaching party's
receipt of written notice specifying the nature of the breach from the
terminating party; provided, however that if such breach is not reasonably
capable of cure within the applicable cure period, the breaching party shall
have an additional forty-five (45) days to cure such breach so long as the cure
is commenced within the applicable cure period and is diligently pursued to
completion thereafter.
13.3 Either party may terminate this Agreement in the event of the
filing by or against the other party of a proceeding under any bankruptcy or
similar law, unless such proceeding is dismissed, within forty-five (45) days
from the date of filing; the making by the other party of a proceeding for
dissolution or liquidation, unless such proceeding is dismissed within
forty-five (45) days from the date of filing; the appointment of a receiver,
trustee or custodian for all or part of the assets of the other party, unless
such appointment or application is revoked or dismissed within forty-five (45)
days from the date thereof; the attempt by the other party to make any
adjustment, settlement or extension of its debts with its creditors generally;
or the insolvency of the other party.
13.4 Subject to Section 13.5, this Agreement shall terminate upon
termination of the Supply Agreement.
13.5 The provisions of Sections 4.2, 4.3 (for a period of [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.]), 4.4 through 4.7, and 13.5 and of Articles 5, 6, 7,
9, 10, 11, 12, 14 and 15 of this Agreement shall survive its expiration or
termination.
ARTICLE 14 - NOTICES
All notices and requests in connection with this Agreement shall be in
writing and shall be transmitted via facsimile, with a copy thereof promptly
mailed, to the address(es) of the recipient as set forth below, or to such other
address(es) as the recipient shall specify in a notice given hereunder. Notices
shall be deemed given on the date of confirmation of facsimile transmission, if
such confirmation occurs on a business day of the recipient, or, if not, on the
next succeeding business day of the recipient.
To PPG:
PPG Industries, Inc. PPG Industries, Inc.
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: General Counsel Attn: Vice-President, Specialty Chemicals
Fax: ▇▇▇-▇▇▇-▇▇▇▇ Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇ ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esquire
Fax: ▇▇▇-▇▇▇-▇▇▇▇
To UDC: Universal Display Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: President and Chief Operating Officer
Fax: ▇▇▇-▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esquire
Fax: ▇▇▇-▇▇▇-▇▇▇▇
ARTICLE 15 - MISCELLANEOUS
15.1 If the performance of this Agreement by either party should be
prevented, delayed, restricted, or interfered with by any man-made or natural
catastrophe, or any other circumstances outside the control of such party and
not due to its negligence that is recognized under international commercial
practice as constituting a force majeure event, then the party so affected
shall, upon giving prompt notice of such event to the other party, be excused
from such performance to the extent of such prevention, delay, restriction, or
interference, provided that the party so affected shall use its best efforts to
avoid or remove such causes of nonperformance and promptly resume performance
hereunder when such causes have been removed. Upon such circumstances arising,
the parties shall promptly consult as to what, if any, modification to the terms
of the Agreement shall be required to arrive at an equitable solution; and, if
such nonperformance appears likely to continue for a period of time in excess of
thirty (30) days and the affected party's nonperformance appears likely to cause
serious hardship to the other party, such other party may terminate this
Agreement upon thirty (30) days' prior written notice to the affected party.
15.2 Neither party may assign or transfer to any person, firm, or
corporation, any of its rights or obligations under this Agreement without the
prior written consent of the other party, except that either party may assign
this Agreement to an entity which acquires all or substantially all of its
assets or merges with it. Any prohibited assignment of this Agreement or the
obligations hereunder shall be null and void. No permitted assignment shall
relieve PPG or UDC of responsibility for the performance of any accrued
obligations which it has prior to such assignment. Any permitted assignment
shall obligate the assignee or successor in interest of PPG or UDC to be bound
by the terms and obligations of this Agreement. Subject to the foregoing, all of
the terms, conditions and provisions of this Agreement shall be binding upon and
shall inure to the benefit of each party's permitted successors and assigns.
15.3 Except as expressly stated herein, nothing in this Agreement shall
confer any rights upon any person other than the parties hereto and their
respective permitted successors and assigns.
15.4 PPG shall not use the names of Princeton University or USC in
connection with any products, promotion or advertising without the prior consent
of Princeton University or USC, except to the extent reasonably required by law.
Notwithstanding the foregoing sentence, PPG may state that certain of its rights
hereunder are sublicense rights under the Princeton License Agreement.
15.5 This Agreement will be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania, irrespective of its
provisions regarding conflicts of laws.
15.6 This Agreement and the Supply Agreement constitute the entire
agreement between the parties regarding the subject matter hereof. Information
deemed confidential under any prior agreements between the parties shall
hereafter be handled in accordance with and governed by the provisions of this
Agreement. Neither party has made any representation, promises or warranties not
herein expressly stated. This Agreement may not be modified except by a written
instrument signed by both parties to this Agreement.
15.7 No waiver by any party of any condition, or the breach of any
term, covenant, agreement, representation, or warranty contained in this
Agreement, in any one or more instances, shall be deemed to be a further or
continuing waiver of any such condition or breach of any other term, covenant,
agreement, representation, or warranty contained in this Agreement.
15.8 In the event a dispute, claim or controversy arises between the
parties relating to the validity, interpretation, performance, termination or
breach of this Agreement (collectively the "Dispute"), the parties agree to hold
a meeting, attended by the President of UDC and the Vice-President, Specialty
Chemicals of PPG, to attempt in good faith to negotiate a resolution of the
Dispute prior to pursuing other available remedies. If, within thirty (30) days
after such meeting (or such extended period of time as the parties may mutually
agree), the parties have not succeeded in negotiating a resolution of the
Dispute, the parties agree to submit the Dispute to mediation following
procedures of the American Arbitration Association ("AAA"), at which mediation
an individual of each party having decision-making authority respecting the
Dispute shall attend. The parties shall mutually agree on the selection process
for the mediator, the time and place for mediation, any exchange of information
and the conduct of the mediation. The fees of the mediator and the costs of
mediation shall be shared equally by the parties. If such mediation does not
result in an agreed upon resolution of the Dispute within sixty (60) days after
commencement of the mediation process (or such extended period of time as the
parties may mutually agree), either party shall be free to pursue any and all
remedies available to it, subject to the express limitations of Article 7 above.
In the event of any Dispute involving termination of this Agreement by a party,
such termination shall be suspended for so long as the other party is acting in
good faith to resolve the Dispute in accordance with the provisions of this
Section. Nothing in this Section shall prohibit either party from seeking
equitable relief to restrain or prevent a breach of this Agreement at any time.
15.9 In consideration of the transactions contemplated hereby, during
the term of this Agreement and for a [The confidential material contained herein
has been omitted and has been separately filed with the Commission.] period
after termination of this Agreement (the "Non-Solicitation Period"), neither
party, or its respective affiliates, will directly or indirectly contact,
approach or solicit for the purpose of offering employment to or hiring (whether
as an employee, consultant, agent, independent contractor or otherwise) or
actually hire any person who is known to be employed by the other party at such
time, or to have been employed by the other party within the preceding [The
confidential material contained herein has been omitted and has been separately
filed with the Commission.].
15.10 If the final judgment of a court of competent jurisdiction
declares that any term or provision of this Agreement is invalid or
unenforceable, the parties agree that the court making the determination of
invalidity or unenforceability will have the power to reduce the scope, duration
or area of the term or provision, to delete specific words or phrases, or to
replace any invalid or unenforceable term or provision with a term or provision
that is valid and enforceable and that comes closest to expressing the intention
of the invalid or unenforceable term or provision, and this Agreement will be
enforceable as so modified after the expiration of the time within which the
judgment may be appealed.
15.11 In making and performing this Agreement, the parties are acting
and shall act as independent contractors. Neither party is, nor will be deemed
to be, an agent, legal representative, joint venturer, partner or employee of
the other party for any purpose.
15.12 The parties shall agree on the language of any press releases or
public disclosures regarding the existence of this Agreement and/or its terms
and conditions. Language that has been approved by either party need not be
reapproved for subsequent release by the other party. Nothing in this Section
15.12 shall prevent either party from complying with any applicable securities
or other laws.
15.13 This Agreement may be executed in two or more counterparts, each
of which shall be binding as of the Effective Date, and all of which shall
constitute one and the same instrument. Each such copy shall be deemed an
original, and it shall not be necessary in making proof of this Agreement to
produce or account for more than one such counterpart. This Agreement shall be
deemed executed by the parties when any one or more counterparts hereof,
individually or taken together, bears the signatures of each of the parties
hereto. This Agreement, once executed by a party, may be delivered to the other
party by facsimile transmission of a copy thereof that bears the signature of
the party so delivering it.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the Effective Date.
UNIVERSAL DISPLAY CORPORATION PPG INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇
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NAME: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ NAME: ▇▇▇▇▇▇ ▇. ▇▇▇
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TITLE: President TITLE: Director, Commercial Development
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DATE: October 31, 2000 DATE: October 31, 2000
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