EXHIBIT 10.8
ASSIGNMENT OF RAUFOSS AGREEMENTS TO PRIMEX AND SUBLICENSE TO ▇▇▇▇ FOR SMALL
CALIBER AMMUNITION
THIS AGREEMENT is made and entered into as of December 30, 1996 by and between:
▇▇▇▇ CORPORATION, having a place of business at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (hereinafter referred to as "OLIN")
AND
PRIMEX TECHNOLOGIES, INC., having a place of business at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ (hereinafter referred to as "PRIMEX")
(hereinafter collectively the "PARTIES" and each individually a "PARTY").
W I T N E S S E T H:
WHEREAS, OLIN and PRIMEX have entered into that certain Distribution Agreement
dated as of December 30, 1996 concerning the spin-off of PRIMEX from OLIN (the
"Distribution Agreement");
WHEREAS, prior to entering into the Distribution Agreement, OLIN and Raufoss
A/S, a corporation organized under the laws of Norway, (formerly A/S Raufoss
Ammunisjonsfabrikker) entered into a number of agreements relating to
multipurpose ammunition, which prior to the spin-off of PRIMEX have been
exploited by PRIMEX and OLIN's Winchester Division as those businesses were part
of a single corporate entity and parent-subsidiary corporate structure;
WHEREAS, Raufoss A/S and ▇▇▇▇ Corporation entered into a technology and patent
license agreement effective as of May 1, 1984 (hereinafter defined as the
"RAUFOSS LICENSE") enabling Olin to manufacture and sell ammunition in a
licensed territory employing Raufoss' Multipurpose Concept ("MPC") technology
and patents;
WHEREAS, the RAUFOSS LICENSE has been amended pursuant to Amendments No. 1 and
No. 2 and by an Addendum No. 1 to Amendment No. 2;
WHEREAS, on December 15, 1992 ▇▇▇▇ Corporation, acting through its Ordnance
Division, and Raufoss A/S entered into a TEAMING AGREEMENT (hereinafter defined
as the "TEAMING AGREEMENT") providing for cooperation in the manufacture and
sale of certain multipurpose ammunition under the RAUFOSS LICENSE and/or a
license granted by Raufoss A/S to the U. S. Government relating to such
multipurpose ammunition;
WHEREAS, the TEAMING AGREEMENT has been amended through the addition of Annex II
entered into on June 16, 1993 and Annex III fully signed as of Oct. 3, 1994;
WHEREAS, PRIMEX desires OLIN to assign to PRIMEX the RAUFOSS LICENSE as amended
and the TEAMING AGREEMENT as amended, (hereinafter defined as the "RAUFOSS
AGREEMENTS") subject to the grant by PRIMEX to OLIN of an exclusive sublicense
under the RAUFOSS AGREEMENTS for small caliber ammunition of less than 20
millimeters in diameter and subject to the consent of Raufoss A/S to such
assignment and sublicense;
WHEREAS, to allow each of OLIN and PRIMEX (and their respective shareholders) to
obtain the full value of its respective rights under the Distribution Agreement,
PRIMEX and OLIN desire to enter into and execute this AGREEMENT concerning the
assignment of the RAUFOSS AGREEMENTS and the sublicensing of OLIN thereunder;
NOW, THEREFORE, in consideration of the above, and the mutual promises set forth
below, OLIN and PRIMEX agree as follows:
1. DEFINITIONS
Whenever used in this AGREEMENT, the following terms shall have the following
meanings, on the understanding that words in the singular include the plural and
vice-versa. Headings and subheadings are used for convenience only and are not
intended as limitations in the AGREEMENT or for use in interpreting the
AGREEMENT.
1.1 AFFILIATE
"AFFILIATE" shall mean, when used with respect to a specified PERSON, another
PERSON that directly, or indirectly through one or more intermediaries, CONTROLS
or is CONTROLLED by or is under common CONTROL with the PERSON specified.
1.2 AGREEMENT
"AGREEMENT" shall mean this agreement as amended and/or supplemented from time
to time, including all the EXHIBITS attached hereto.
1.3 CONFIDENTIAL INFORMATION
"CONFIDENTIAL INFORMATION" shall mean any and all information disclosed to the
receiving PARTY by the disclosing PARTY pursuant to the AGREEMENT, in any form
such as, but not limited to, visual, oral, written, graphic, electronic or model
form, including but not limited to know-how and trade secrets relating to the
LICENSED TECHNOLOGY, whether patented or not and whether in the laboratory,
pilot plant or commercial plant stage (including drawings, operating conditions,
specifications, safety instructions, recommendations for effluent disposal,
emergency instructions, etc.) owned or controlled by a PARTY.
1.4 CONTROL
"CONTROL" shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of a Person, whether
through the ownership of voting securities, by contract or otherwise, and the
terms "CONTROLLING" and "CONTROLLED" shall have meanings correlative thereto.
1.5 EFFECTIVE DATE
"EFFECTIVE DATE" shall mean the Effective Time specified in the Distribution
Agreement or the date Raufoss A/S executes the Consent Agreement set forth in
Exhibit A, whichever is later.
1.6 IMPROVEMENTS
"IMPROVEMENTS" shall have the meaning ascribed thereto in the RAUFOSS LICENSE as
amended.
1.7 INTELLECTUAL PROPERTY
"INTELLECTUAL PROPERTY" shall mean all CONFIDENTIAL INFORMATION and all classes
or types of patents, utility models, design patents, copyrights and applications
for the aforementioned, of all countries of the world.
1.8 LICENSED PRODUCTS
"LICENSED PRODUCTS" shall have the meaning as set forth in the RAUFOSS
AGREEMENTS.
1.9 LICENSED TECHNOLOGY
"LICENSED TECHNOLOGY" shall have the meaning ascribed thereto in the RAUFOSS
LICENSE as amended.
1.10 MEDIUM & LARGE CALIBER PRODUCTS
"MEDIUM & LARGE CALIBER PRODUCTS" shall mean LICENSED PRODUCTS having a diameter
of 20 millimeters or more.
1.11 OCSW & OICW AMMUNITION
"OCSW AND OICW AMMUNITION" shall mean AMMUNITION used in objective crew served
weapon (OCSW) and objective individual combat weapon (OICW), respectively, being
developed by PRIMEX for the U.S. Army.
1.12 PERSON
"PERSON" shall mean any natural person, corporation, business trust, joint
venture, association, company, partnership or government, or any agency or
political sub-division thereof.
1.13 RAUFOSS AGREEMENTS
"RAUFOSS AGREEMENTS" shall mean the RAUFOSS LICENSE and the TEAMING AGREEMENT,
including without limitation, those agreements and amendments thereto as set
forth in Exhibit B and any future agreements or amendments relating to Licensed
Products entered into by Raufoss A/S and PRIMEX and/or OLIN during the Term.
The RAUFOSS AGREEMENTS are specifically incorporated by reference herein and
made a part of this AGREEMENT.
1.14 RAUFOSS LICENSE
"RAUFOSS LICENSE" shall mean the Licensing Agreement between A/S Raufoss
Ammunisjonsfabrikker (now Raufoss A/S) and ▇▇▇▇ Corporation, Winchester Group
(now ▇▇▇▇ Corporation, Winchester Division) effective as of May 1, 1984, as well
as any amendments thereto during the Term. Copies of the RAUFOSS LICENSE and
any amendments thereto as of the Effective Date are attached hereto as Exhibit
C.
1.15 SMALL CALIBER PRODUCTS
"SMALL CALIBER PRODUCTS" shall mean LICENSED PRODUCTS having a diameter of less
than 20 millimeters.
1.16 TEAMING AGREEMENT
"TEAMING AGREEMENT" shall mean the TEAMING AGREEMENT between Raufoss A/S and
▇▇▇▇ Corporation acting through its Defense Products Division ( now Ordnance
Division) entered into on December 15, 1992, as well as any amendments or
annexes thereto during the Term. Copies of the TEAMING AGREEMENT and any
amendments or annexes thereto as of the Effective Date are attached hereto as
Exhibit D.
1.17 TERM
"TERM" shall mean the period of time during which the AGREEMENT shall be in full
force and effect pursuant to ARTICLE 6.
2. ASSIGNMENT OF INTELLECTUAL PROPERTY
2.1 ASSIGNMENT
Subject to the execution by Raufoss A/S of the Consent Agreement set forth in
Exhibit A, effective as of the EFFECTIVE DATE, OLIN assigns and transfers to
PRIMEX all of its right, title and interest in and to the RAUFOSS AGREEMENTS in
force as of the EFFECTIVE DATE.
2.2 ACCEPTANCE OF ASSIGNMENT
PRIMEX agrees to accept the assignment pursuant to Section 2.1 and to be bound
on or after the EFFECTIVE DATE to all the terms and conditions of the assigned
RAUFOSS AGREEMENTS in the place of OLIN.
2.3 DISCLAIMER
▇▇▇▇ CORPORATION MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH
RESPECT TO THE RAUFOSS AGREEMENTS ASSIGNED HEREBY, INCLUDING WITHOUT LIMITATION
AS TO VALIDITY, ENFORCEABILITY OR FITNESS FOR ANY PARTICULAR USE OR PURPOSE.
3. LICENSES
3.1 LICENSE TO OLIN
Subject to the execution by Raufoss A/S of the Consent Agreement set forth in
Exhibit A, upon the EFFECTIVE DATE, PRIMEX and its AFFILIATES hereby grant and
agree to grant to OLIN an irrevocable, worldwide, sole and exclusive sublicense,
with the right to further sublicense subject to the terms of the RAUFOSS
AGREEMENTS, to utilize all of PRIMEX's rights and licenses under the RAUFOSS
AGREEMENTS with respect to the LICENSED TECHNOLOGY, for the making, having made,
use, offering for sale, selling and import of SMALL CALIBER PRODUCTS. Pursuant
to the license provided pursuant to this Section 3.1 OLIN shall have the
exclusive right for a period of five (5) years from the EFFECTIVE DATEas between
OLIN and PRIMEX to make SMALL CALIBER PRODUCTS, except for engaging In the
development, testing, trial production, prototype construction and similar
activities associated with OCSE & OICW AMMUNITION, under the RAUFOSS AGREEMENTS,
but solely to the extent of PRIMEX's or its AFFILIATES' rights and licenses
under the RAUFOSS AGREEMENTS.
3.2 LICENSE TO PRIMEX
Upon the EFFECTIVE DATE, OLIN and its AFFILIATES hereby grant and agree to grant
to PRIMEX an irrevocable, worldwide, sole and exclusive sublicense, with the
right to sublicense subject to the terms of the RAUFOSS AGREEMENTS, to utilize
all of OLIN's rights and licenses under RAUFOSS AGREEMENTS with respect to the
LICENSED TECHNOLOGY entered into by OLIN or its AFFILIATES after the EFFECTIVE
DATE, for the making, having made, use, offering for sale, selling and import of
MEDIUM & LARGE CALIBER PRODUCTS. Pursuant to the license of this Section 3.2
PRIMEX shall have the exclusive right as between OLIN and PRIMEX to make MEDIUM
& LARGE CALIBER PRODUCTS under such RAUFOSS AGREEMENTS, but solely to the extent
of OLIN's or its AFFILIATES', rights and licenses under such RAUFOSS AGREEMENTS.
Upon the EFFECTIVE DATE, OLIN and its AFFILIATES hereby grant and agree to grant
to PRIMEX an irrevocable, worldwide, non-exclusive sublicense, with the right to
sublicense subject to the terms of the RAUFOSS AGREEMENTS, to utilize all of
OLIN's rights and licenses under RAUFOSS AGREEMENTS with respect to the LICENSED
TECHNOLOGY entered into by OLIN or its AFFILIATES after the EFFECTIVE DATE, for
engaging In the development, testing, trial production, prototype construction
and similar activities associated with, but for a period of five (5) years from
the EFFECTIVE DATE not the selling of, OCSW AND OICW AMMUNITION.
3.3 LICENSE OF IMPROVEMENTS
Each PARTY agrees to grant to Raufoss A/S a license relating to such PARTY's
IMPROVEMENTS to the extent required by the RAUFOSS AGREEMENTS.
3.4 SUBLICENSE TERMS
Any sublicense granted by a sublicensee pursuant to this ARTICLE 3 shall be
consistent with and subject to the terms and conditions of this AGREEMENT and
the RAUFOSS AGREEMENTS applicable thereto.
3.5 ROYALTIES
If a licensor under this ARTICLE 3 is obligated to pay royalties pursuant to a
RAUFOSS AGREEMENT with respect to a license or right granted herein, then the
licensee shall be obligated to pay such royalties to its licensor as a condition
of its license.
3.6 COMPLIANCE WITH RAUFOSS AGREEMENTS
A licensee under this ARTICLE 3 in addition to being bound by and abiding by all
the terms and conditions of this AGREEMENT agrees to be bound by and abide by
all the terms and conditions of the RAUFOSS AGREEMENTS applicable to such
licensee's activities pursuant to this AGREEMENT. In the event that a
licensee's obligation to its licensor under this AGREEMENT conflicts with such
licensee's obligation under a RAUFOSS AGREEMENT, the obligations of the RAUFOSS
AGREEMENT shall control. Without limitation, a licensee under this ARTICLE 3
shall provide to its licensor such reports and payments as required by the
RAUFOSS AGREEMENTS applicable to such licensee's activities pursuant to this
AGREEMENT, in a timely manner, which will reasonably permit its licensor to
comply with the applicable RAUFOSS AGREEMENTS.
3.7 WARRANTY
The PARTIES warrant that as of the EFFECTIVE DATE they have not granted and will
not grant any rights or licenses which will conflict with the rights and
licenses set forth in this AGREEMENT. The PARTIES also warrant that as of the
EFFECTIVE DATE they have the right to grant the rights and licenses set forth in
this Agreement. NO OTHER WARRANTY, OF ANY KIND, WHETHER EXPRESS OR IMPLIED, IS
GIVEN BY ONE PARTY TO THE OTHER PARTY AND IN PARTICULAR THE PARTIES DISCLAIM ANY
WARRANTY THAT THEIR RESPECTIVE INTELLECTUAL PROPERTY ARE VALID OR ENFORCEABLE OR
USEFUL FOR ANY PURPOSE.
3.8 EXPRESS LICENSES ONLY
Except for licenses expressly granted pursuant to ARTICLE 3, no licenses are
granted hereby, and nothing in the AGREEMENT shall be construed as, or result
in, conveying by implication, waiver or estoppel any right or license to either
PARTY or to any third party except Raufoss A/S pursuant to the RAUFOSS
AGREEMENTS.
3.9 FUTURE AGREEMENTS
Each PARTY agrees not to enter into future agreements which will conflict with
the rights of the other PARTY hereunder without the consent of the other PARTY,
which consent shall not be unreasonably withheld.
4. INTELLECTUAL PROPERTY
4.1 OWNERSHIP
INTELLECTUAL PROPERTY arising out of this AGREEMENT shall be owned as follows:
(I) INTELLECTUAL PROPERTY developed solely by OLIN employees shall be owned by
OLIN; (ii) INTELLECTUAL PROPERTY developed solely by employees of PRIMEX shall
be owned by PRIMEX; and (iii) INTELLECTUAL PROPERTY developed jointly by
employees of PRIMEX and OLIN shall be jointly owned by OLIN and PRIMEX.
4.2 APPLICATION FOR PATENT RIGHTS
The right to apply for and obtain INTELLECTUAL PROPERTY arising out of this
AGREEMENT with respect to a solely owned invention under Section 4.1 shall
belong to and be vested in the PARTY entitled to ownership of such invention.
Any and all costs and expenses incurred for applying for, obtaining and
maintaining such patent rights shall be borne by the owner thereof. Each PARTY
shall, at its own expense, secure the execution by its employees of any
documents and any necessary government licenses required to obtain such
INTELLECTUAL PROPERTY and the appropriate assignment thereof. The PARTIES shall
mutually agree upon which PARTY shall have the right to apply, in the names of
both OLIN and PRIMEX, for INTELLECTUAL PROPERTY developed jointly by employees
of both OLIN and PRIMEX. The PARTIES shall equally share the cost of making
such joint application and maintaining such joint INTELLECTUAL PROPERTY rights.
Should either PARTY decline to join in such joint application or to bear its
equal share of such costs, either for preparation, fees or maintenance, in the
United States of America or in any other country, the PARTY declining to join in
such joint application or to bear its share of the costs shall be deemed to have
abandoned its rights to such INTELLECTUAL PROPERTY and shall transfer its
interest therein to the other PARTY.
4.3 ABANDONING JOINTLY OWNED INTELLECTUAL PROPERTY
If either PARTY wishes to abandon in any country any jointly owned INTELLECTUAL
PROPERTY right or application therefor arising out of this AGREEMENT, it shall
not do so without first notifying the other PARTY and giving it a reasonable
opportunity to take over the prosecution or maintenance of such INTELLECTUAL
PROPERTY right at its own expense. If the other PARTY agrees to take over the
prosecution and maintenance of such INTELLECTUAL PROPERTY the abandoning PARTY
shall transfer its interest therein to such other PARTY.
5. SECRECY
5.1 SECRECY OBLIGATION
In addition to their obligations under the RAUFOSS AGREEMENTS each of the
PARTIES agrees to keep confidential and neither disclose to others nor use
except as permitted herein any CONFIDENTIAL INFORMATION received from the other
PARTY pursuant to the AGREEMENT.
5.2 LIMITS ON DISCLOSURE
The receiving PARTY shall treat such CONFIDENTIAL INFORMATION in the same manner
and with the same degree of care as it uses with respect to its own CONFIDENTIAL
INFORMATION of like nature and shall disclose CONFIDENTIAL INFORMATION of the
other PARTY only to its employees who have a need to know it, provided that such
employees are bound to respect all secrecy obligations provided for in the
AGREEMENT.
5.3 EXCEPTIONS
The obligation set forth in Section 5.1 shall not apply with respect to any
CONFIDENTIAL INFORMATION which:
5.3.1 PUBLIC KNOWLEDGE
Is generally available to the public or subsequently becomes generally available
to the public through no breach by the receiving PARTY of secrecy obligations
under this Agreement or prior agreements between the PARTIES concerning the
CONFIDENTIAL INFORMATION; or
5.3.2 PRIOR POSSESSION
The receiving PARTY can establish by competent evidence was in its possession at
the time of disclosure and was not acquired in confidence directly or
indirectly, from the disclosing PARTY; or
5.3.3 RECEIVED FROM THIRD PARTY
Is received from a third party who is legally free to disclose such CONFIDENTIAL
INFORMATION and who did not receive such CONFIDENTIAL INFORMATION in confidence
from the disclosing PARTY; or
5.3.4 APPROVED FOR DISCLOSURE
Is approved in writing for release by the disclosing PARTY; or
5.3.5 SUCCESSOR IN INTEREST
Is disclosed to any permitted assignee of the AGREEMENT, provided that such
assignee agrees to be bound by the provisions of the AGREEMENT; or
5.3.6 INDEPENDENTLY DEVELOPED
Is independently developed by the receiving PARTY without reference to the
CONFIDENTIAL INFORMATION received from the disclosing PARTY.
5.4 PERMITTED DISCLOSURES
The provisions of Section 5.1 notwithstanding, in exercising the rights granted
under the AGREEMENT, any PARTY may disclose CONFIDENTIAL INFORMATION to others
for purpose of licensing (as permitted hereunder), design, engineering,
construction or operation of facilities permitted using the disclosing PARTY's
licensed TECHNOLOGY; or obtaining or giving consulting services under a license
agreement permitted hereunder, provided that any third party to which such
CONFIDENTIAL INFORMATION is disclosed shall have first entered into a written
secrecy and non-use obligation at least as stringent as that imposed on the
PARTIES pursuant to the AGREEMENT.
5.5 SUBPOENA OR DEMAND
The provisions of Section 5.1 notwithstanding, a PARTY may disclose CONFIDENTIAL
INFORMATION pursuant to a subpoena or demand for production of documents in
connection with any suit or arbitration proceeding, any administrative procedure
or before a governmental or administrative agency or instrumentality thereof or
any legislative hearing or other similar proceeding, provided that the receiving
PARTY shall promptly notify the disclosing PARTY of the subpoena or demand and
provided further that in such instances, the PARTIES use their best efforts to
maintain the confidential nature of the CONFIDENTIAL INFORMATION by protective
order or other means.
6. DURATION AND TERMINATION
6.1 TERM OF AGREEMENT
This AGREEMENT shall become effective on the EFFECTIVE DATE, and shall continue
in full force and effect until the expiration of the last to expire of the
RAUFOSS AGREEMENTS. After expiration of the AGREEMENT pursuant to this Section
6.1 the rights and obligations set forth in Section 3.6 and ARTICLES 4, 5 and 10
shall continue in full force and effect until fully discharged. Except as
otherwise required by the RAUFOSS AGREEMENTS upon expiration pursuant to this
Section 6.1 both PARTIES shall have the right to use and license, subject to the
surviving obligations, but without accounting to the other, the LICENSED
TECHNOLOGY and IMPROVEMENTS licensed hereunder, whether owned exclusively or
jointly by either PARTY.
6.2 TERMINATION FOR MATERIAL BREACH
If either PARTY commits a material breach with respect to any of their
obligations hereunder, the other PARTY may give written notice to the allegedly
breaching PARTY specifying the alleged material breach and an intention to
terminate the AGREEMENT. The PARTY charged with the alleged material breach
shall have sixty (60) days from the date of receipt of such written notice to
cure the alleged material breach. If the alleged material breach is not cured
within said sixty (60)-day period, the other PARTY may terminate the AGREEMENT
by sending a written notice of termination to the breaching PARTY and in this
event, neither PARTY waives any legal rights to recover damages resulting from
the termination of the AGREEMENT.
6.3 INSOLVENCY
In the event that either PARTY shall: (I) become insolvent or go into
liquidation or receivership or be admitted to the benefits of any procedure for
the settlement or postponement of debts or be declared bankrupt; or (ii) becomes
party to dissolution proceedings; then the AGREEMENT and any and all obligations
assumed hereby (except as otherwise expressly provided for herein) may be
terminated by the other PARTY, if permitted by law, by giving written notice of
such termination on a date specified therein.
6.4 OBLIGATIONS SURVIVING TERMINATION FOR FAULT
Upon termination pursuant to Sections 6.2 or 6.3, the obligations of each PARTY
to the other shall cease except, the obligations set forth in Section 3.6 and
ARTICLES 4, 5 and 10 shall continue in full force and effect until completely
discharged.
7. FORCE MAJEURE
7.1 ACTS CONSTITUTING FORCE MAJEURE
Neither PARTY shall be liable to the other arising out of a delay in its
performance of this Agreement arising from causes beyond its reasonable control.
Without limiting the generality of the foregoing, such events include any act of
God; accident; explosion; fire; earthquake; flood; strikes; labor disputes;
riots; sabotage; embargo; equipment failure; federal, state, or local legal
restriction or limitation; failure or delay of transportation; shortage of, or
inability to obtain, raw materials, supplies, equipment, fuel, electricity, or
labor. Neither PARTY shall be required to resolve labor disputes or disputes
with suppliers of raw material, supplies, equipment, fuel, or electricity, but
shall use commercially reasonable efforts to seek alternative sources to the
extent practicable.
7.2 NOTICE REQUIREMENT
When circumstances occur which delay the performance of either PARTY under this
Agreement, whether or not such circumstances are excused pursuant to Section 8.1
above, said PARTY shall, when it first becomes aware of such circumstances,
promptly notify (or, if the circumstances occur on a holiday or weekend, on the
first succeeding business day) the other PARTY, by facsimile or by telephone
confirmed in writing within two (2) business days in the case of oral notice.
Within ten (10) business days of the date when either PARTY first becomes aware
of the event which it contends is responsible for the delay, it shall supply to
the other PARTY in writing the reason(s) for and anticipated duration of such
delay, the measures taken and to be taken to prevent or minimize the delay, and
the timetable for the implementation of such measures.
8. GUARANTEES, LIABILITIES AND INDEMNITIES
8.1 LAWFUL POSSESSION
Each PARTY represents that to the best of its knowledge and belief, it will be
in the lawful possession of any CONFIDENTIAL INFORMATION when disclosed by it
pursuant to the AGREEMENT and that the disclosure of said CONFIDENTIAL
INFORMATION shall not in any way violate any agreement to hold such CONFIDENTIAL
INFORMATION in confidence.
8.2 DISCLAIMER
Neither PARTY shall be liable to the other for indirect, special or
consequential damages arising out of this AGREEMENT or any use of CONFIDENTIAL
INFORMATION or INTELLECTUAL PROPERTY rights obtained by it from the other PARTY
hereunder.
9. NOTICES
Notices or requests to be given or made hereunder shall be delivered in person
or sent by registered mail or telefax or telex acknowledged by the operator of
the addressee at the following addresses or other addresses that each PARTY may
from time to time designate
(a) for PRIMEX:
PRIMEX TECHNOLOGIES, INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
ATTENTION: Corporate Secretary
Tel: (▇▇▇)▇▇▇-▇▇▇▇
Fax: (▇▇▇)▇▇▇-▇▇▇▇
(b) for OLIN:
▇▇▇▇ CORPORATION
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Secretary
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
10. EXPORTATION CONTROL
Each PARTY agrees not to export or reexport, or cause to be exported, any
CONFIDENTIAL INFORMATION or LICENSED TECHNOLOGY furnished hereunder by the other
PARTY or the equipment constructed on the basis of such CONFIDENTIAL
INFORMATION, or the products manufactured with such CONFIDENTIAL INFORMATION or
LICENSED TECHNOLOGY to any country to which, under the laws of the country of
origin of the CONFIDENTIAL INFORMATION or LICENSED TECHNOLOGY, it is or may be
prohibited from exporting such CONFIDENTIAL INFORMATION or LICENSED TECHNOLOGY
or the direct product thereof.
11. ASSIGNMENT
The AGREEMENT shall not be assigned by either PARTY except as permitted by the
RAUFOSS AGREEMENTS.
12. MISCELLANEOUS
12.1 ENTIRE AGREEMENT
The AGREEMENT embodies the entire understanding of the PARTIES. No amendment or
modification of the AGREEMENT shall be valid or binding upon the PARTIES unless
it is in writing and signed by the respective duly authorized officers of the
PARTIES.
12.2 PARTIES ARE INDEPENDENT
The AGREEMENT does not and shall not be deemed to make either PARTY the agent,
legal representative or partner of the other PARTY for any purpose whatsoever,
and neither PARTY shall have the right or authority to assume or create any
obligation or responsibility whatsoever, expressed or implied, on behalf of or
in the name of the other PARTY or to bind the other PARTY in any respect
whatsoever.
12.3 WAIVER
The failure of either PARTY at any time to require performance by the other
PARTY of any provision hereof shall in no way affect the full right to require
such performance within a reasonable time or thereafter the performance of that
and all other provisions, nor shall the waiver of any succeeding breach of such
provision or any other provision operate as a waiver of the provision itself.
12.4 SEVERABILITY
The invalidity or unenforceability of any one or more of the provisions of the
AGREEMENT shall not affect the validity or enforceability of the remaining
provisions.
12.5 GOVERNING LAW
This Agreement shall be construed and governed, in all respects, by the
law of the State of [Illinois] applicable to contracts made and to be
performed in that state without reference to any provisions relating to
conflicts of law.
12.6 JURISDICTION
Each PARTY hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any [Illinois] State court or
Federal court of the United States of America sitting anywhere within a radius
of 50 miles from East ▇▇▇▇▇, [Illinois], and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
PARTIES hereby irrevocably and unconditionally agrees that all claims in respect
of any such action or proceeding may be heard and determined in such [Illinois]
State or, to the extent permitted by law, in such Federal court. Each of the
PARTIES hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law.
12.7 VENUE
Each PARTY hereby irrevocably and unconditionally waives, to the fullest extent
it may legally and effectively do so, any objection that it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of or
relating to this Agreement in any [Illinois] State court or such Federal court
located in the State of [Illinois]. Each of the PARTIES hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
12.8 SERVICE OF PROCESS
Each Party to this Agreement irrevocably consents to service of process in the
manner provided for notices in ARTICLE 9 hereof. Nothing in this Agreement will
affect the right of any party to this Agreement to serve process in any other
manner permitted by law.
13. SETTLEMENT OF DISPUTES
In the event of any disputes arising out of or in connection with the execution,
interpretation, performance or nonperformance of this AGREEMENT, except for
disputes relating to infringement, validity or enforceability of INTELLECTUAL
PROPERTY, PRIMEX and OLIN shall use the following procedure prior to either
PARTY pursuing other available legal remedies:
13.1 ALTERNATIVE DISPUTE RESOLUTION
Upon signing of this Agreement each PARTY will designate one representative
("Representative") for the purpose of resolving disputes which may arise from
time to time. Upon a dispute arising, either or both Representatives may
request in writing a conference with the other. If so requested, the conference
shall occur within ten (10) days of the initial written request and shall be
held via telephone or at East Alton, Illinois, or elsewhere, at the option of
the Representatives. The purpose and scope of the conference shall be limited
to issues related to resolving the dispute. At the conference, each
Representative, or his or her designee, shall use best efforts to attempt to
resolve the dispute. If the dispute has not been settled within thirty (30)
days of the first meeting of the Representatives, the parties shall establish a
Management Appeal Board ("MAB") within ten (10) days of receipt of a request by
either PARTY to set up an MAB. The MAB shall consist of two (2) members of each
respective PARTY's management. The President of OLIN shall appoint two members
to represent OLIN and the President of PRIMEX shall appoint two members to
represent PRIMEX. The sole purpose of MAB shall be to resolve any dispute over
which the Representatives failed to resolve. The MAB members shall be persons
other than the Representatives. The MAB shall meet at East Alton, Illinois or
otherwise confer to resolve the dispute by good faith negotiations, which may
include presentations by the Representatives or others.
13.2 ARBITRATION
In the event the parties are unable to resolve their disputes after availing
themselves of the processes set forth in Section 13.1 above for a period of
ninety (90) days, such disputes, shall be solely and finally settled by three
arbitrators in accordance with the Commercial Arbitration Rules of the AAA (the
"Arbitration Rules"). The PARTY electing arbitration shall so notify the other
PARTY in writing in accordance with the Arbitration Rules, and such notice shall
be accompanied by the name of the arbitrator selected by the PARTY serving the
notice. The second arbitrator shall be chosen by the other PARTY, and a neutral
arbitrator shall be chosen by the two arbitrators so selected. If a PARTY fails
to select an arbitrator or to advise the other PARTY of its selection within
thirty (30) days after receipt by such a PARTY of the notice of the intent to
arbitrate, the second arbitrator shall be selected by the AAA. If the third
arbitrator shall not have been selected within thirty (30) days after the
selection of the second arbitrator, the appointment shall be made by the AAA.
All such proceedings shall be conducted in New York, New York. The arbitrator
shall make detailed findings of fact and law in writing in support of the
decision of the arbitrator panel, and is empowered to award reimbursement of
attorneys' fees and other costs of arbitration to the prevailing PARTY, in such
manner as the arbitrator panel shall deem appropriate. The provisions of this
Section 13.2 shall not be deemed to preclude any PARTY hereto from seeking
preliminary injunctive relief to protect or enforce its rights hereunder, or to
prohibit any court from making preliminary findings of fact in connection with
granting or denying such preliminary injunctive relief, or to preclude any PARTY
hereto from seeking permanent injunctive or other equitable relief after and in
accordance with the decision of the arbitrator panel. Whether any claim or
controversy is arbitrable or litigable shall be determined solely by the
arbitrator panel pursuant to the provisions of this Section 13.2. Any monetary
award of the arbitrators panel shall include interest from the date of any
breach or any violation of this Agreement. The arbitrators shall fix an
appropriate rate of interest from the date of the breach or other violation to
the date when the award is paid in full. The parties agree that judgment on the
arbitration award may be entered in any court having jurisdiction over the
parties or their assets.
13.3 CONTINUING OBLIGATIONS
It is expressly agreed that the failure of the parties to resolve a dispute on
any issue to be resolved hereunder shall not relieve either PARTY from any
obligation set forth in this Agreement. In addition, notwithstanding the
pendency of any such dispute, neither PARTY will be excused of its obligations
hereunder to cooperate with the other to effectuate the purposes of this
Agreement.
13.4 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of this shall constitute one and
the same instrument.
IN WITNESS WHEREOF the PARTIES hereto have caused this AGREEMENT to be executed
in duplicate as of the date first written above.
▇▇▇▇ CORPORATION Primex Technologies, Inc.
By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. By: ▇▇▇▇▇▇ ▇. Pain
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇ ▇. Pain
Vice President, General Counsel Vice President
and Secretary