by the parties will first be used to reimburse the expenses on a pro rata basis that each party incurred in pursuing the prosecution. If there are recovered damages in excess of expenses, then the recovered damages will be allocated between the parties in accordance with the damage suffered by each.
VI. TERMINATION
(b) In the event that Licensor determines in good faith that Licensee has materially breached Section 4.2, Section 4.5(b) or, with respect to Radiator Products, Section 4.5(c) of this Agreement and that such breach has had or could reasonably be expected to have an adverse effect on the value of the Licensed Marks as used by Licensor in its businesses, Licensor may (i) terminate the Marks Term upon 90 days' prior written notice to Licensee, which notice must specify the breach, unless Licensee cures the breach within such 90-day period, and (ii) terminate the remainder of this Agreement only if the conditions outlined in Section 6.1(a) above are satisfied.
(b) Upon termination of this Agreement for breach as specified above, Licensee will discontinue all use of the Licensed Patents; provided, however, that Licensee may sell out any then existing inventory of Products manufactured using the Licensed Patents so long as the Products comply in all material respects with Section 4.5.
VII. INDEMNIFICATION AND LIMITATION ON DAMAGES
VIII. MISCELLANEOUS
8.1 Relationship of Parties. Licensor and Licensee will for all purposes be deemed to be independent contractors hereunder, and neither will be considered (nor will any of their employees, contractors or agents be considered) an agent, employee, commercial representative, partner, franchisee or joint venturer of the other or will have any duties or obligations beyond those expressly provided in this Agreement. Neither party will have any authority, absent express written permission from the other party, to enter into any agreement, assume or create any obligations or liabilities, or make representations on behalf of the other party.
8.2 Interpretation. (a) When a reference is made in this Agreement to Sections or Schedules, such reference will be to a Section or Schedule to this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Whenever the words "include," "includes" or "including" are used in this Agreement, they will be deemed to be followed by the words "without limitation." Unless the context otherwise requires, (i) "or" is disjunctive but not necessarily exclusive, (ii) words in the singular include the plural and vice versa, and (iii) the use in this Agreement of a pronoun in reference to a party hereto includes the masculine, feminine or neuter, as the context may require. All Schedules hereto will be deemed part of this Agreement and included in any reference to this Agreement. This Agreement will not be interpreted or construed to require any party to take any action, or fail to take any action, if to do so would violate any applicable law.
(b) The parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties, and no presumption or burden of proof will arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.
(c) This Agreement may be executed in counterparts, all of which will be considered one and the same agreement and will become effective when counterparts have been signed by each of the parties and delivered to the other party, it being understood that each party need not sign the same counterpart.
(d) This Agreement and the Contribution Agreement constitute the entire agreement and supersede all prior agreements and understandings, both written and oral, among the parties with respect to the subject matter of this Agreement.
(e) This Agreement will be governed and construed in accordance with the internal laws of the State of Delaware applicable to contracts made and wholly performed within such state, without regard to any applicable conflict of laws principles.
8.3 Amendment. No amendment, supplement or modification of this Agreement will be binding unless executed in writing by Licensor and Licensee.
8.4 Waiver of Compliance. Except as otherwise provided in this Agreement, the failure by any party to comply with any obligation, covenant, agreement or condition under this Agreement may be waived by the party entitled to the benefit thereof only by a written instrument signed by the party granting such waiver, but such waiver or failure to insist upon strict compliance with such obligation, covenant, agreement or condition will not operate as a waiver of, or estoppel with respect to, any subsequent or other failure. The failure of any party to enforce at any time any of the provisions of this Agreement will in no way be construed to be a waiver of any such provision, nor in any way to affect the validity of this Agreement or any part hereof or the right of any party hereafter to enforce each and every such provision. No waiver of any breach of such provisions will be held to be a waiver of any other or subsequent breach.
8.5 Notices. All notices required or permitted pursuant to this Agreement must be given as set forth in the Contribution Agreement.
8.6 Third Party Beneficiaries. Except as otherwise provided in this Agreement, nothing in this Agreement, expressed or implied, is intended to confer on any person or entity other than the parties hereto or their respective successors and permitted assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement.
5
8.7 Successors and Assigns. This Agreement will be binding upon and will inure to the benefit of the signatories hereto and their respective successors and permitted assigns. Except as set forth in Section 4.2, neither Licensee nor Licensor may assign this Agreement, or any of their rights or obligations hereunder, without the prior written consent of the other party hereto, and any attempt to make any such assignment without such consent will be null and void. Notwithstanding the foregoing, Licensor may assign this Agreement, or any of its rights or obligations hereunder, in connection with a sale of its business. Any assignment of this Agreement will not relieve the party making the assignment from any liability under this Agreement.
8.8 Severability. The illegality or partial illegality of any or all of this Agreement, or any provision hereof, will not affect the validity of the remainder of this Agreement, or any provision hereof, and the illegality or partial illegality of this Agreement will not affect the validity of this Agreement in any jurisdiction in which such determination of illegality or partial illegality has not been made, except in either case to the extent such illegality or partial illegality causes this Agreement to no longer contain all of the material provisions reasonably expected by the parties to be contained herein.
8.9 Submission to Jurisdiction; Waivers. Each party irrevocably agrees that any legal action or proceeding with respect to this Agreement, the transactions contemplated hereby, any provision hereof, the breach, performance, validity or invalidity hereof or for recognition and enforcement of any judgment in respect hereof brought by another party hereto or its successors or permitted assigns may be brought and determined in any federal or state court located in the State of Delaware, and each party hereby irrevocably submits with regard to any such action or proceeding for itself and in respect to its property, generally and unconditionally, to the exclusive jurisdiction of the aforesaid courts. Each party hereby irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, the transactions contemplated hereby, any provision hereof or the breach, performance, enforcement, validity or invalidity hereof, (a) any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason other than the failure to lawfully serve process, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise), and (c) to the fullest extent permitted by applicable laws, that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper, and (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
8.10 Specific Performance. The parties hereby acknowledge and agree that the failure of any party to perform its agreements and covenants hereunder will cause irreparable injury to the other party for which damages, even if available, will not be an adequate remedy. Accordingly, each party hereby consents to the issuance of injunctive relief by any court of competent jurisdiction to compel performance of such party's obligations and to the granting by any court of the remedy of specific performance of its obligations hereunder, this being in addition to any other remedy to which it is entitled at law or in equity.
8.11 Section 365(n) of the Bankruptcy Code. All rights and licenses granted under or pursuant to this Agreement are, and will otherwise be deemed to be, for purposes of Section 365(n) of the United States Bankruptcy Code (the "Bankruptcy Code"), licenses of rights to "intellectual property" as defined under Section 101(35A) of the Bankruptcy Code. The parties will retain and may fully exercise all of their respective rights and elections under the Bankruptcy Code.
8.12 Confidentiality. The parties acknowledge that they are subject to, and any confidential information of any nature whatsoever of a party to this Agreement that is provided or disclosed to the other party in connection with this Agreement will be subject to, the confidentiality provisions contained in Section 6.6 of the Merger Agreement. Such confidentiality obligations will automatically terminate in their entirety on the Confidentiality Expiration Date (as defined in the Merger Agreement).
[SIGNATURES ON FOLLOWING PAGE]
6
IN WITNESS WHEREOF, each of the signatories hereto has caused this Agreement to be signed by its duly authorized officer as of this date first above written.
 | MODINE MANUFACTURING COMPANY |
| By: /s/ Bradley C. Richardson |
| Name: Bradley C. Richardson
Title: Vice President, Finance and CFO |
| MODINE AFTERMARKET HOLDINGS, INC. |
| By: /s/ Bradley C. Richardson |
| Name: Bradley C. Richardson
Title: Vice President and Treasurer |
7
