Cooperation Agreement
by and between
AAE Holdings PLC, Unit 11 Bridge Road, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
- hereinafter referred to as AAE" -
and
Cognis ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
- hereinafter referred to as "Cognis" -
WHEREAS, AAE is developing co-solvency additives for the global fuels market.
The advantages of the additives are to improve the behaviour, including exhaust
emissions, engine performance, vapour pressure and fuel consumption of
transportation fuel-ethanol mixtures; and
WHEREAS, AAE is seeking a competent industrial partner with know-how and
analytical capabilities in order to optimize together with this partner the
additives; and
WHEREAS, AAE desires to retain the services of a partner for the development,
manufacturing, logistics and marketing of the products on a worldwide basis; and
WHEREAS, Cognis is willing to provide the services that AAE is seeking from an
industrial partner; and
[*] CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO
THE OMITTED PORTION. OMITTED TEXT IS INDICATED BY A "*".
WHEREAS, in view of this, the parties have already entered into a Secrecy
Agreement dated June 11, 1999, to be in a position to evaluate the possibilities
of a cooperation;
NOW, THEREFORE, in consideration of the mutual promises of the parties and the
benefits to be granted by the performance hereof, the parties hereto agree as
follows:
ARTICLE 1
SCOPE OF THE COOPERATION
The subject of this Agreement is the joint development of co-solvency additives
for the fuels market with a performance features described in ANNEX A and
furthermore the production and marketing of certain co-solvency additives as
described in ANNEX B.
ARTICLE 2
EXCHANGE OF KNOW-HOW
2.1 The parties shall disclose and deliver to each other certain data,
information and/or documents and materials related to the scope of the
cooperation, in particular related to their respective products,
technologies, know-how, trade secrets, marketing activities, business and
product development and the like. Such information and materials and all
other information and materials related to the joint cooperation shall
hereinafter collectively be referred to as the "Confidential Information".
The term "Disclosing Party" shall mean the party hereto disclosing
Confidential Information. The term "Receiving Party" shall mean the party
hereto receiving Confidential Information.
2.2 Each party shall disclose such of its Confidential Information to the other
party, as each party, in its discretion, believes would be useful to the
other party in furtherance of the purpose of this agreement.
2.3 The parties hereto represent and warrant to each other that they have the
right to disclose the Confidential Information to the other party.
2.4 The parties acknowledge that the right, title and interest in the
Confidential Information shall be and remain the exclusive property of the
Disclosing Party of such Confidential Information.
2.5 Unless otherwise agreed upon in writing, nothing herein contained shall be
construed as granting to the Receiving Party of Confidential Information
any license or rights in respect thereof.
2.6 Each party will return to the other party material in its possession or
control that bears, embodies or refers to Confidential Information of the
other party promptly when requested to do so by the other party.
2.7 It is expressly understood that the Secrecy Agreement dated June 11, 1999
shall remain in full force.
ARTICLE 3
RESEARCH GROUPS AND PROJECT TEAM
3.1 Each party shall establish research groups. The role and responsibility of
COGNIS' research group is:
- to develop and optimize in close cooperation with the AAE research
group e.g. co-solvency additives for transportation
fuel-ethanol-mixtures,
- select and check availability of raw materials,
- develop manufacturing procedures and select manufacturing sites incl.
possible toll manufacturers.
3.2 The role and responsibility of AAE's research group is:
- to develop and optimize in close cooperation with the COGNIS research
group e.g. co-solvency additives for transportation
fuel-ethanol-mixtures,
- compatibility testing in fuels/ with hardware,
- application testing in fuels, engines, refineries etc.,
- gain approvals from authorities and government bodies, OEM's,
refineries, end users etc.
3.3 The tasks and responsibility of COGNIS' and AAE's respective research group
may be specified by the party from time to time.
3.4 The parties agree to form a project steering committee to review the
programs of the project and to recommend any modifications and to consider
all issues relating to the project. In addition to any other meetings the
project steering committee may hold, this committee must meet at least once
in each quarter to consider the report of the project managers and to
discuss progress and review performance against project milestones and
consider possible corrections to the cooperation project.
The members of the project steering committee shall be ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ of COGNIS and ▇▇▇▇ ▇▇▇ of AAE, plus one other nominated
from AAE.
The project must be managed on behalf of AAE and COGNIS by an AAE project
manager and by a COGNIS project manager ( = ▇.▇.▇▇▇▇▇▇ )
ARTICLE 4
INVENTIONS
4.1 Any and all discoveries and/or inventions relating to the subject of this
Cooperation Agreement and made solely by AAE's research group during the
term of this Agreement shall be and remain the sole and exclusive property
of AAE.
4.2 Any and all discoveries and/or inventions relating to the subject of this
Cooperation Agreement and made solely by COGNIS research group during the
term of this Agreement shall be and remain the sole and exclusive property
of COGNIS.
4.3 Any and all discoveries and/or inventions, whether patentable or not,
relating to the field of this Cooperation Agreement and resulting from a
joint development between the parties hereto during the term of this
Agreement (hereinafter "Joint Inventions") shall be considered to be
jointly made and, therefore, shall be the common property of the parties
hereto. Each party shall forthwith notify the other party of any and all
Joint Inventions.
ARTICLE 5
JOINT PATENTS
5.1 Unless otherwise agreed upon, the parties shall apply for a joint patent
for Joint Inventions (hereinafter referred to as "Joint Patents") in
Germany and United Kingdom. The patent application shall be filed by COGNIS
in its own name and in the name of AAE. AAE shall give to COGNIS all
necessary assistance for filing the patent applications.
5.2 Unless otherwise agreed upon, all costs relating to the application,
maintenance and/or defence of a Joint Patent shall be equally borne by
COGNIS and AAE, provided, however, that all internal costs shall be borne
by the respective parties. To the extent COGNIS or AAE has expenses
(exception made for internal costs) relating to the application,
maintenance and/or defence (including litigation) of a Joint Patent
pertaining to a Joint Invention, the respective other party shall reimburse
COGNIS or, as the case may be, AAE on a 50/50 basis.
5.3 The parties shall agree on the application for patents in third countries
(i. e., countries other than Germany and United Kingdom) at the latest four
(4) months prior to the expiry of the priority year. In the event that one
party does not wish to apply for a patent concerning the Joint Invention in
one or more third countries, the other party shall have the right to apply
for a patent at its own cost. In such event, the applying party shall
become the sole and exclusive owner of the respective patent and shall be
entitled to exploit the respective patent without any restrictions by the
other party.
5.4 In the event that one party does not wish to prosecute, maintain or defend
any Joint Patent or application for a Joint Patent, or in the event that
one party does not wish to continue to bear its share of the cost, such
party shall offer to assign to the other party at a price of 1, its right
in the Joint Patent.
5.5 Neither Party hereto shall without the prior written consent of the other
party hereto sell, assign or otherwise transfer any right in the Joint
Patent or Joint Invention to any third
party, and any such transfer shall be null and void if made without the
prior written consent of the other parties hereto. Notwithstanding the
foregoing, each party hereto shall be entitled to transfer its rights in a
Joint Patent or Joint Invention to any of its respective affiliates.
ARTICLE 6
EXPLOITATION OF JOINT INVENTIONS
6.1 AAE shall be entitled to use and fully exploit any and all Joint
Inventions, provided, however, that AAE shall be obliged to retain the
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services of COGNIS for the manufacturing of the products based on Joint
Inventions (hereinafter referred to as the "New Products"), further,
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provided that in case AAE and COGNIS are not able to agree in good faith on
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the prices and/or delivery terms for the New Products to be delivered by
COGNIS, then AAE shall, at their discretion, either pay to COGNIS a running
royalty fee of (* of the gross sales made on) of the New Products, or stop
using the Joint Inventions and Joint Patents, further, provided that AAE
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shall be entitled to exploit the Joint Inventions without any restrictions
if and when COGNIS abandons to manufacture and sell the New Products. AAE
shall inform COGNIS about the premises where the New Products are used and
the extension of the usage. COGNIS shall have the right to enter and
inspect any premises where AAE is using the New Products.
6.2 In any territory where AAE choose not to exploit any of the Joint
Inventions, AAE shall grant the right of exploitation to Cognis save that
if AAE subsequently wish to exploit the Joint Inventions in such a
territory the exclusivity of exploitation shall return to AAE. The right of
exploitation shall be by way of a licence or an assignment for a sum to be
agreed.
6.3 The royalty fees payable pursuant to Article 6.1 shall be computed for each
quarter year and paid within one (1) month after the end of the respective
quarter year.
ARTICLE 7
DISCLAIMERS
Nothing contained herein shall be construed as a guarantee or warranty of any
type on the part of either party with respect to any information, advise and/or
samples given by one party to the other party under this Agreement. In no event
shall a party be responsible for any loss or damage sustained by any party,
including, but not limited to, any loss and/or damage by reason of the use of
such information constituting an infringement of any right, including patent
right, of a third party.
ARTICLE 8
PREFERRED SUPPLIER
In view of the close and mutually fruitful cooperation between COGNIS and AAE,
AAE hereby appoints COGNIS as the preferred supplier for its co-solvency
additives business.
ARTICLE 9
TERM AND TERMINATION
9.1 This Agreement is concluded for an initial period of four (4) years.
Thereafter this Agreement shall prolong for periods of (12) months each,
unless terminated in accordance with the provisions of this Agreement.
9.2 Each party hereto shall be entitled to terminate this Agreement with a
period of notice of six (6) months to the end of the initial period or
extension period.
9.3 Each party hereto shall be entitled to give notice to terminate the
Agreement with immediate effect for compelling reasons, especially if
- the other party does not meet its contractual obligations or, for
whatever reason, is not able to meet them and also does not
subsequently meet them within a period of sixty (60) days after a
written request to do so by the entitled party;
- settlement or bankruptcy proceedings or instigated with regard to the
assets of the other party or such proceedings are rejected for lack of
assets or the other party goes into voluntary liquidation.
9.4 Notices of termination must be given in writing.
ARTICLE 10
EFFECTS OF TERMINATION
10.1 All claims of either party against the other party which may have arisen
prior to the termination or which are based on acts or events which have
led to such termination of this Agreement shall survive the termination of
this Agreement.
10.2 The rights and obligations of the parties hereto specified in Articles 4, 5
and 6 pertaining to Joint Inventions and Joint Patents shall survive with
respect to Joint Inventions and Joint Patents developed during the term of
this Agreement. However, AAE shall in this case not be obliged to purchase
New Products from COGNIS, unless ordered prior to the termination.
10.3 All rights and obligations of the parties hereto pertaining to Confidential
Information shall survive a termination of this Agreement.
ARTICLE 11
SEVERABILITY
Should any provision of this Agreement be or become invalid or unenforceable,
such invalidity or unenforceability shall not affect the validity or
enforceability of the Agreement as such, unless the invalid or unenforceable
provision is of vital importance for the continuation of this Agreement for
either party. Invalid or unenforceable provisions shall be replaced by such
legally valid and enforceable provisions which fairly correspond to the economic
spirit of the invalid or unenforceable provisions.
ARTICLE 12
AMENDMENTS
This Agreement may not be changed or amended orally but only by a writing signed
by all parties hereto. The writing must refer to this Agreement and must
expressly state that it is an amendment hereof.
ARTICLE 13
ASSIGNABILITY
The rights and obligations under this Agreement shall not be assigned by either
party without the prior written consent of the other party, provided, however,
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that either party hereto may assign this Agreement to any affiliate, subsidiary
or parent or a successor through merger, sale or transfer of all or
substantially all of the assets of COGNIS to which this Agreement relates.
ARTICLE 14
ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement and understanding between the
parties hereto with respect to their cooperation as described in this Agreement.
It shall supersede all prior Agreements and understandings between the parties
hereto pertaining to the same subject.
ARTICLE 15
GOVERNING LAW
This Agreement shall be governed by and interpreted in accordance with the laws
of the Federal Republic of Germany.
ARTICLE 16
ARBITRATION
Any disputes arising out of or in connection with this Agreement shall be
settled amicably between the parties hereto. In case an amicable settlement
cannot be reached, the dispute shall be finally settled under the rules of
conciliation and arbitration of the International Chamber of Commerce by one
arbitrater appointed in accordance with said rules. The place of arbitration
shall be Geneva. The language of arbitration shall be English. The award shall
be in writing, and shall specify the reasons for and the facts of which such
decision was reached.
IN WITNESS WHEREOF,
the parties, intending to be legally bound, have caused this Agreement to be
executed by their duly authorized representatives as of the date written below:
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, April 7, 2000
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Cognis Deutschland GmbH AAE Holdings PLC
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Pierre ▇▇▇▇▇ ▇▇▇▇▇▇
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Pierre ▇▇▇▇▇ ▇▇▇▇▇▇
ANNEX A - JOINT DEVELOPMENTS
1 AAE07 PRODUCT ENHANCEMENT:
To develop the existing product to improve its performance in *.
To develop the existing product to improve its performance in *.
3 AAE00 PRODUCT ENHANCEMENT:
To develop the existing *. The product should be available to AAE at a
target cost of * whilst meeting the performance criteria for Gasoline
additives in the US market. Should it be possible to develop the product to
reach an * at the same treatment rate it is anticipated that a target cost
of * would be achieved.
IN WITNESS WHEREOF,
the parties, intending to be legally bound, have caused this Agreement to be
executed by their duly authorized representatives as of the date written below:
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, April 7, 2000
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Cognis Deutschland GmbH AAE Holdings PLC
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Pierre ▇▇▇▇▇ ▇▇▇▇▇▇
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Pierre ▇▇▇▇▇ ▇▇▇▇▇▇
ANNEX B - PRODUCT PERFORMANCE FEATURES
AAE(07)
*
AAE(00)
*
AAE(10)
*
IN WITNESS WHEREOF,
the parties, intending to be legally bound, have caused this Agreement to be
executed by their duly authorized representatives as of the date written below:
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, April 7, 2000
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Cognis Deutschland GmbH AAE Holdings PLC
▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
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▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
Pierre ▇▇▇▇▇ ▇▇▇▇▇▇
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Pierre ▇▇▇▇▇ ▇▇▇▇▇▇