EXHIBIT 10.2
LIMITED LICENSE AGREEMENT
This Limited License Agreement (the "Agreement") is made the 8th day
of March "100") by and between ▇▇▇▇▇-▇▇▇▇▇▇▇▇ GLASS CONTAINER INC.
("▇▇▇▇▇-▇▇▇▇▇▇▇▇" or " "▇▇▇▇▇") and ANCHOR GLASS CONTAINER CORPORATION
("Anchor").
WHEREAS, in connection with and as contemplated by the Settlement
Agreement among ▇▇▇▇▇-▇▇▇▇▇▇▇▇, ▇▇▇▇▇-Illinois, Inc. and Anchor dated March 8.
2002 (the "Settlement Agreement"), the parties to this Limited License
Agreement desire to terminate the existing Technical Assistance and License
Agreement between ▇▇▇▇▇-▇▇▇▇▇▇▇▇ and Anchor dated December 18, 1996 (the
"TALA"); and
WHEREAS, as part of that Settlement Agreement, the parties hereto
further wish to provide for the continued use by Anchor of such patented and
unpatented processes, machinery or equipment incorporating or embodying
Technical Information (as defined herein), including but not limited to
Licensed Patents and Licensed Trade Secrets (each as defined herein) as may
have been commercially practiced by Anchor in the Licensed Territory while the
TALA was in effect or voluntarily made available to .Anchor during the term of
the Limited License hereunder (the "Technical Information in Place");
NOW THEREFORE, in consideration of the agreements set forth in the
Settlement Agreement and hereinafter expressed and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged.
▇▇▇▇▇-▇▇▇▇▇▇▇▇ and Anchor agree as follows:
I. DEFINITIONS
(a) The term "Affiliate" shall mean, with respect to any person, any
person which directly or indirectly controls or is controlled by or is under
common control with such person.
(b) The term "control" (including the terms "controlling," "controlled
by" and under "common control with") shall mean the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of a person.
(c) The term "Antitrust Sensitive Information" shall mean any
information (including, without limitation, information relating to pricing,
costs, sales, credit, marketing or production capacity) which, in the opinion
of the party requested to disclose or license such information, is sensitive
from the standpoint of the antitrust laws of the United States or any political
subdivision thereof the "antitrust laws") and the disclosure
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or licensing of which in the opinion of such party would be inappropriate from
the standpoint of the antitrust laws or would result in a violation of the
antitrust laws.
(d) The term "Licensed Products" shall mean soda-lime glass containers
such as bottles and jars made substantially of nitrous soda-lime silicate
composition.
(e) The term "Technical Information" shall mean all technical facts,
information, data or advice, whether written or oral (including, without
limitation, reports, letters, drawings, training and operating manuals,
specifications, bills of materials, photographs, advertisements, and the like),
relating to furnaces, compositions, product designs, machines, molds, methods,
techniques, processes, factory administration and scheduling management, and
access to associated computer services, which were or are made available to
Anchor pursuant to the TALA or voluntarily under this Agreement by
▇▇▇▇▇-▇▇▇▇▇▇▇▇ or any transferee of ▇▇▇▇▇-▇▇▇▇▇▇▇▇'▇ computer services
department, including multiple gob narrow neck press and blow forming
technology and equipment and the rights thereto as developed by ▇▇▇▇▇-▇▇▇▇▇▇▇▇
or acquired by ▇▇▇▇▇-▇▇▇▇▇▇▇▇ from ▇▇▇▇▇▇▇ ▇▇▇▇ of Obernkirchen. Federal
Republic of Germany (the multiple gob narrow neck press and blow forming
technology, including applicable know-how and trade secrets and equipment as
the same may be improved and upgraded from time to time, shall be collectively
referred to as the "Multiple Gob Press and Blow Technology"), but shall not
include:
(i) any facts, information, data, advice or computer
services that ▇▇▇▇▇-▇▇▇▇▇▇▇▇ received from third parties and which
could not or may not lawfully be disclosed by it, or the utilization
of which requires or would have required the payment by ▇▇▇▇▇-▇▇▇▇▇▇▇▇
of royalties to third parties;
(ii) any facts, information, data, advice or computer
services that ▇▇▇▇▇-▇▇▇▇▇▇▇▇ developed for, or in cooperation with,
third parties, and which it is obligated to maintain in confidence:
(iii) any facts, data, formulas, compositions, processes,
apparatus, computer programs, compilations of information or any other
patented or unpatented technology, information or equipment relating
to the ▇▇▇▇▇-▇▇▇▇▇▇▇▇ development known as "cased gob technology."
thereby a glass container of a first composition is formed with an
outer glass layer of a second composition; or
(iv) any Antitrust Sensitive Information.
▇▇▇▇▇-▇▇▇▇▇▇▇▇ and Anchor acknowledge and agree that computer programs
which function to provide management information (e.g.. programs for product
information computer and control system supervisory computer) or function to
control machinery/equipment provided by ▇▇▇▇▇-▇▇▇▇▇▇▇▇ (e.g.. programs for
Com-Soc. Auto-Mot, batch computing furnace computer and glass conditioning
computer) have been or may be provided by ▇▇▇▇▇-▇▇▇▇▇▇▇▇ only as an integral
part of such
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machinery/equipment unless otherwise specifically agreed upon by ▇▇▇▇▇-▇▇▇▇▇▇▇▇
all computer-programs being considered trade secrets of ▇▇▇▇▇-▇▇▇▇▇▇▇▇.
(f) The term "Licensed Territory" shall mean the United States of
America.
(g) The term "Licensed Patent" shall mean any patent of the Licensed
Territory pertaining to Licensed Products, including the manufacture thereof,
owned or acquired by ▇▇▇▇▇-▇▇▇▇▇▇▇▇ or in which ▇▇▇▇▇-▇▇▇▇▇▇▇▇ has or had
licensable rights and which is based on any item of Technical Information.
(h) The term "Licensed Trade Secret" shall mean any and all Technical
Information of a confidential nature or in which ▇▇▇▇▇-▇▇▇▇▇▇▇▇ has licensable
proprietary rights such as formulas, processes, apparatus, compilations of
information and the like which was or is used by ▇▇▇▇▇-▇▇▇▇▇▇▇▇ in the Licensed
Territory to give it an advantage over competitors who did or do not use it and
which was or is designated in writing as a trade secret at the time of
disclosure or thereafter. It is understood that the term "Licensed Trade
Secret" shall include both industrial and commercial trade secrets.
(i) The term "Net Sales Price" shall mean the sales price for
shipments of Licensed Products as itemized on customer invoices, debit memos
and credit memos net of (i) discounts and allowances made in the ordinary
course of business, (ii) expenses relating to freight, transportation,
insurance, packaging and non-glass accessories or components, (Hi) sales and
use taxes and other similar governmental charges and (iv) returns for credit.
In the case of Licensed Products sold by Anchor to any other person which is so
closely allied to Anchor as to prevent arm's-length bargaining, the Net Sales
Price shall be no lower than the net sales price charged by such seller for
similar products sold in the same period to customers not thus closely allied.
Anchor shall not change the method or system it uses to invoice customers, or
otherwise change its accounting methodology, in order to reduce the amount of
payments to be made to ▇▇▇▇▇-▇▇▇▇▇▇▇▇ under paragraph III.A.3.
(j) The term "person" shall mean any natural person, corporation,
division of a corporation, business trust, joint venture, association, company
or partnership.
(k) The term "Prime Rate" shall mean at any time the rate of interest
per annum publicly announced from time to time by Citibank. N.A. as its prime
rate in effect at its principal office in New York, New York.
(1) The term "Subsidiary" shall mean a person, a majority of the total
outstanding Voting Power of which is owned, directly or indirectly, by a parry.
(m) The term "Voting Power," when used with reference to the capital
stock of. or other ownership interest in, any person, shall mean the power
under ordinary circumstances (and not merely upon the happening of a
contingency) to vote in the election of directors of such person (if such
person is a corporation) or to exercise rights
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in respect of such person equivalent to the right to vote in the election of
directors (if such person is not a corporation).
(n) The term "Settlement Agreement" shall have the meaning set forth
in the recitals hereto.
(o) The term "TALA" shall have the meaning set forth in the recitals
hereto.
(p) The term "Technical Information in Place" shall have the meaning
set forth in the recitals hereto.
II. TERMINATION OF THE TALA
▇. ▇▇▇▇▇-▇▇▇▇▇▇▇▇ and Anchor hereby terminate the TALA effective
as of the effective date of this Agreement, which shall be
the Effective Date of the Settlement Agreement (as defined
therein). Following the effective date of this Agreement, the
panics shall have no rights or obligations under the TALA.
B. Except as otherwise provided herein. Anchor hereby agrees to
relinquish any and all rights it may have or once had under
the TALA to use or obtain, in any way, any Technical
Information generated, created, developed, conceived or
reduced to practice by ▇▇▇▇▇-▇▇▇▇▇▇▇▇ subsequent to the
effective date of this Agreement. No patent or other rights
which ▇▇▇▇▇-▇▇▇▇▇▇▇▇ may obtain with respect to such
subsequent Technical Information shall limit or restrict
Anchor's right to and use of Technical Information in Place.
Nothing in this Agreement shall limit Anchor's right or
privilege to challenge ▇▇▇▇▇-▇▇▇▇▇▇▇▇'▇ patent or other
rights in such subsequent Technical Information or to assert
a right or privilege to use such subsequent Technical
Information lawfully obtained from any other source
(including lawful licenses from third parties) as long as
Anchor does not base its rights or privileges directly or
indirectly upon the TALA or this Agreement (except to the
extent that such subsequent Technical Information has
voluntarily been made available to Anchor by ▇▇▇▇▇-▇▇▇▇▇▇▇▇
and otherwise meets the definition of Technical Information
in Place under this Agreement).
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III. LIMITED LICENSE AND PAID-UP LICENSE TO USE TECHNICAL INFORMATION
▇. ▇▇▇▇▇-▇▇▇▇▇▇▇▇ hereby grants to Anchor, and Anchor hereby
accepts, a non-exclusive, non-divisible, non-transferable
right and license under the Licensed Patents and Licensed
Trade Secrets to use Technical Information in Place at any
Anchor Facility (as that term is defined in the Settlement
Agreement) located within the Licensed Territory (the
"Limited License") under the following terms and conditions:
1. The term of this Limited License shall extend until
December 31. 2005.
2. No Subsidiary or Affiliate of Anchor, wherever
located, shall have any right under this Agreement
without ▇▇▇▇▇-▇▇▇▇▇▇▇▇'▇ express written consent.
3. Subject to paragraph 111.1.1 hereof.-the Limited
License granted by ▇▇▇▇▇-▇▇▇▇▇▇▇▇ hereunder is
contingent upon and subject to the timely payment of
royalties by Anchor at the rate of three tenths of
one percent (.3%) of the Net Sales Price of all
Licensed Products manufactured under this Limited
License which axe sold or otherwise transferred by
Anchor during the term of this Limited License. Such
royalty payments shall be calculated during the term
of this Limited License as of the end of each
calendar quarter and. to the extent applicable,
amounts denominated in a foreign currency shall be
converted into United States Dollars using the
official exchange rate if one exists or otherwise at
the exchange rate announced by Citibank. N.A. of New
York, New York as of such date.
It is understood and agreed that these royalty
payments based upon Net Sales Price arc for the
administrative convenience of the panics in avoiding
determinations of the extent of the use of the
various Licensed Patents and Licensed Trade Secrets,
and associated bookkeeping and reporting, and
include the payment for patent rights under the
Licensed Patents.
In addition to the patent licenses and rights
obtained under the Licensed Patents, the parties
agree that the royalty payments has