LICENSE AGREEMENT
This LICENSE AGREEMENT ("Agreement"), dated and effective as of March 16,
1998 ("Effective Date"), is entered into by and between PixTech, Inc., a
Delaware corporation having offices at 3350 Scott Boulevard, Building 37, Santa
Clara, California 95054 ("PixTech") and Coloray Display Corporation, a
California corporation ("Coloray"), whose mailing address is Suite 602, 1105
Schrock Road, Columbus, Ohio 43229.
RECITALS
A. Coloray has rights in and to certain technologies related to field
emission displays ("Licensed Technology" as further defined below), some of
which rights are subject to the terms and conditions of the Restated License
Agreement and Release dated July 31, 1997, between SRI International and Coloray
(the "SRI Restated License").
B. PixTech desires to obtain, and Coloray desires to grant, a license to
the Licensed Technology in accordance with the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the promises and
conditions contained herein, the parties hereby agree as follows:
1. DEFINITIONS
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1.1 "Licensor" shall mean Coloray and "Licensee" shall mean PixTech.
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1.2 "Licensed Technology" shall mean all technical data, inventions,
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technologies, concepts, processes, formulae, know-how, systems, apparatuses,
software, designs, drawings, and any other subject matter, including all
patents, copyrights, trade secrets, mask works, industrial designs and other
intellectual property rights therein protected under the laws of any country of
the world (whether or not rights therein are currently perfected), whether now
existing or hereinafter obtained by Coloray during the term of this Agreement,
in each case to the extent that it pertains to or may be useful within the
Field. The Licensed Technology as defined herein shall be divided into two
subsets as follows:
(a) "Coloray Licensed Technology" shall only include: (i) Licensed
Technology related to the patents, patent applications and Inventions
listed in Exhibit A hereto (collectively, the "Coloray Patents"); (ii)
any Licensed Technology prepared for or in connection with the Coloray
Patent filings for Licensor but not yet filed, provided that, if any
of the Coloray Patent filings related to the Field are filed by
Licensee, then Licensor shall receive a non-exclusive license; and
(iii) all continuations, continuations-in-part, divisionals, and other
related patent applications and any patents issuing thereon in any
country and all patent rights therein, to the extent any of the
foregoing is directly related to the Coloray Patents; and
(b) "Other Licensed Technology" shall not include the "Coloray
Licensed Technology," but shall include without limitation: (i) the
patents, patent applications, and Inventions listed in Exhibit B
hereto; (ii) any Licensed Technology related to research and
development projects within the Field, if any, undertaken between
Licensor and the University of New Mexico ("UNM"), provided that, if
any new licenses are created from this UNM research, Licensee shall
receive a non-exclusive license expiring on December 31, 1999; (iii)
any Licensed Technology prepared for or in connection with patent
filings for Licensor , other than related to Coloray Patents, but not
yet filed, provided that, if any of the patent filings related to the
Field are filed by Licensee, then Licensor shall receive a non-
exclusive license; (iv) all continuations, continuations-in-part,
divisionals, and other related patent applications and any patents
issuing thereon, other than related to Coloray Patents, in any country
and all patent rights therein; and (v) any Licensed Technology related
to the Field from AMOCO, its successors or assigns.
1.3 "Confidential Information" means confidential information in any
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form that may be disclosed by a Party hereto (the "Disclosing Party") to the
other Party (the "Receiving Party"), that is either (a) conspicuously marked
"Confidential" or "Proprietary" if disclosed to the receiving Party in tangible
form or (b) if disclosed orally, is reduced by the Disclosing Party to a
writing, conspicuously marked "Confidential" or "Proprietary", given to the
Receiving Party within 30 days of such oral disclosure. As used in this
paragraph, "waiting" or "written" include any form of tangible embodiment of
information including, without limitation, hard disk, magnetic tape or diskette,
CD-ROM or sample device.
1.4 "Invention" means both patentable inventions as well as
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nonpatentable subject matter, irrespective of whether patent protection is
sought for such Invention or retained as a trade secret, as the case may be,
including all intellectual property rights therein.
1.5 "Affiliate" means an entity controlling, controlled by, or under
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common control with another entity, such control being exercised through
ownership or control, directly or indirectly, of 50% or more of the voting power
of the shares. References to each Party herein shall include such Party's
Affiliates.
1.6 "Party" means PixTech, Licensor or both, as the case may be.
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1.7 "Field" means any activity or apparatus relating to (i) the
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design,development, manufacture, sale, distribution and/or use of FED Products;
(ii) the design, development, manufacture, sale, distribution and/or use of
equipment, devices and/or other subject matter for use in designing, developing,
manufacturing, producing, testing or otherwise using such FED Products.
1.8 "FED Products" means products consisting in whole or in part of
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any of the following: (i) a display subsystem including a field emission
cathode, a component thereof, and/or related accessories; (ii) a lamp,
consisting of a field emission cathode or component thereof; or (iii) a
backlight.
1.9 "Encumbrance" means any lien, claim, charge, security interest,
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mortgage, pledge, easement, license, conditional assignment or other title
retention agreement, defect in title, covenant, or other restriction of any kind
other than the security interest of Standard Energy Company ("Standard Energy"),
an Ohio corporation having offices at 1105 Schrock Road, Suite 602, Columbus,
Ohio 43229, which security interests do not have priority over the rights and
licenses granted to PixTech hereunder as acknowledged and agreed by Standard
Energy below.
2. GRANT OF LICENSE TO PIXTECH
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Licensor hereby grants to PixTech and its Affiliates, under all of
Licensor's rights in and to the Licensed Technology, a perpetual, nonexclusive,
fully paid-up, royalty-free, world-wide right and license to make, have made,
use, sell, offer for sale, and import any system, device, apparatus, method,
process or other Invention, and to reproduce, prepare derivative works of,
distribute, and otherwise use and exploit subject matter within the Licensed
Technology. SUBJECT TO THE TERMS AND CONDITIONS OF THE PRIOR AGREEMENTS (AS
DEFINED BELOW), PixTech shall have the right to grant and authorize sublicenses
to the rights and licenses granted to PixTech under this Section 2; provided,
however, that: (a) for a period of four years from the Effective Date, PixTech
will not sublicense the right to commercially sell products embodying patented
Inventions of Coloray to more than three Manufacturing Partners of PixTech; and
(b) without the prior written consent of Licensor, no sublicense shall be
granted to SI Diamond Technology, Inc., UNM or any Affiliate of either SI
Diamond or UNM. As used above, a "Manufacturing Partner" means a third party
who, at the time that a respective sublicense is granted, has been granted or is
concurrently granted a license for at least a portion of the Field under
PixTech's own patent rights subject to terms and conditions (including scope of
license and termination provisions) agreed upon by PixTech in good faith. The
license and rights granted by Licensor to PixTech under this Section 2 shall
apply retroactively to activities of PixTech prior to the Effective Date.
Licensor hereby releases PixTech from any and all claims of infringement of the
Licensed Technology or any part thereof prior to the Effective Date of this
Agreement.
3. COMPENSATION TO LICENSOR
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3.1 License Fee. In consideration of the license and rights granted
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to PixTech under Section 2 above, PixTech shall pay to Standard Energy, on
behalf of Coloray, the following:
(a) within two (2) business days of the Effective Date of this
Agreement, the sum of $75,000, of which $10,000 has already been
deposited by PixTech with Standard Energy; and
(b) no later than the first anniversary of the Effective Date, the
sum of [ ]*
3.2 Stock Issuance. In consideration of the license and rights
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granted to PixTech under Section 2 above, PixTech shall issue to Standard
Energy, on behalf of Coloray the following:
(a) 14,000 shares of Common Stock of PixTech pursuant to the terms
and conditions set forth in Exhibit C hereto as soon as possible
after, and in all events within thirty (30) days of, the Effective
Date of this Agreement; and
(b) no later than the first anniversary of the Effective Date, [ ]*
additional shares of Common Stock of PixTech pursuant to the terms and
conditions of Exhibit C hereto.
3.3 Restricted License. Until such time as PixTech pays and issues
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to Standard Energy the consideration stated under Sections 3.1(b) and 3.2(b)
above (collectively the "Final Payment"), PixTech's rights under this Agreement
shall be limited to a perpetual, nonexclusive, fully paid-up, royalty-free,
world-wide right and license as described in section 2 above, but in the Coloray
Licensed Technology only and, until the Final Payment is timely made, for all
purposes of this Agreement, the term "Licensed Technology" as used herein shall
mean only, and be restricted to, the "Coloray Licensed Technology," as defined
herein and shall not include the "Other Licensed
* Confidential information omitted and filed with the Commission.
Technology" as defined. Until the Final Payment is timely made, this Agreement
shall be referred to as the "Restricted License Agreement." In the event the
Final Payment is not timely made on or before the first anniversary of the
Effective Date, then: (a) this Agreement shall immediately and permanently
thereafter be limited to the terms and conditions of the Restricted License
Agreement, with PixTech having no rights or interests in the Other Licensed
Technology; and (b) neither Coloray nor Standard Energy shall have any (i) right
to demand or receive the Final Payment or (ii) obligations to PixTech except to
the extent of the Restricted License Agreement.
3.4 Sole Remuneration. The payment of both the license fee set forth
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in Section 3.1 and the issuance of stock set forth in Section 3.2, both to
Standard Energy on behalf of Coloray, shall be Licensor's sole remuneration for
the license and rights granted by Licensor to PixTech hereunder and no payments,
royalties or other compensation shall accrue or be due to Coloray under this
Agreement except as specifically set forth in this Section 3.
4. PATENT PROSECUTION AND MAINTENANCE
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4.1 Prosecution and Maintenance. Licensor has previously executed a
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License Agreement with each of [ ]*, a California corporation [ ]*, and
[ ]*, a California corporation [ ]*, giving [ ]*and [ ]*, inter alia, the
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right to prosecute and maintain patent and other intellectual property
protection related to the "Licensed Technology" as defined within such
Agreements as may be amended from time to time (the "Prior Agreements"). In the
event that both [ ]* and [ ]* decline to "Pursue Protection" ( as defined in
the Prior Agreements) with respect to any Invention falling within its
definition of its Licensed Technology, or in the event that both [ ]* and
[ ]* abandon a previous decision to Pursue Protection, PixTech shall have the
next and exclusive Right to Pursue Protection under the remaining terms of this
Section 4.1, if applicable.
As to Inventions falling under the paragraph immediately above as well as
Inventions originally within the Field of this Agreement and within the
description of the Licensed Technology, but not within the Field of the Prior
Agreements, PixTech shall have the first Right and option to pursue, prosecute
and maintain patent or other intellectual property protection for such
Inventions within the Licensed Technology (hereinafter "Pursue Protection"), at
PixTech's sole expense. PixTech may exercise such option at any time during the
period from the Effective Date and prior to January 1, 2000 (the "Non-Exclusive
Period") by providing Licensor with written notice of such election ("Elected
Inventions"). In the event that any patent applications are filed for
Inventions within the Field which have not yet been elected by PixTech, Licensor
will promptly notify PixTech and provide PixTech with a copy of such application
and the amount of attorneys' fees and filing fees incurred for such filing.
PixTech will either reimburse Licensor for the reasonable attorneys' fees and
filing fees incurred for such filing within sixty (60) days after receipt of
such notice or waive its option to have such application included in the Elected
Inventions. PixTech will Pursue Protection for the Elected Inventions at its
sole expense using its reasonable business judgment. PixTech will notify
Licensor at least sixty (60) days prior to allowing any patent or patent
application for an Elected Invention to become abandoned during the Non-
Exclusive Period, in which event Licensor may assume control of such patent or
patent application and it will be removed from the Elected Inventions. For
purposes hereof, a patent application will be considered to become abandoned
only if all further rights of prosecution, appeal and issuance lapse without the
right to file a continuation, continuation-in-part, divisional re-examination,
reissue or other application with respect to the Invention covered by such
application. As used hereinafter "Pursue Protection" includes, without
limitation, filing and prosecuting patent applications, conducting interferences
of opposition, requesting re-examination, reissue or extension, paying
maintenance fees and the like. Licensor agrees to provide PixTech all
reasonable cooperation and assistance requested by PixTech in evaluating
* Confidential information omitted and filed with the Commission.
Inventions in the Licensed Technology and Pursuing Protection for Elected
Inventions. Such cooperation shall include providing, and obtaining from the
respective inventors, prompt production of pertinent facts and documents, giving
of testimony, execution of petitions, oaths, powers of attorney, specifications,
declarations or other papers, and other assistance for (i) prosecuting any-of
said applications or substitute, divisional, continuing or additional
applications covering the respective Elected Invention, (ii) for filing and
prosecuting applications for reissuance of any patents for the respective
Elected Invention (iii) interference or other priority proceedings involving the
respective Elected Invention, and (iv) legal proceedings involving in the
respective Elected Invention and any applications therefore and any patents
granted thereon, including without limitation reissues and reexaminations,
opposition proceedings, cancellation proceedings, priority contests, public use
proceedings, and infringement actions; provided, however, that the reasonable
expenses incurred by Licensor and the respective inventors in providing such
cooperation shall be paid for by Licensee.
4.2 Third Party Licenses; Exclusivity. Both during and after the
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NonExclusive Period, Licensor shall have the unrestricted right to grant
licenses to make, use, sell and import subject matter solely outside of the
Field under the Licensed Technology. During the Non-Exclusive Period, Licensor
will have the right to grant non-exclusive licenses to make, use, sell and
import subject matter in the Field under the Licensed Technology to third
parties for fair consideration on such terms and conditions as reasonably
determined by Licensor. All such consideration shall accrue to Licensor. After
the NonExclusive Period, the rights and licenses granted to PixTech under
Section 4.1 above with respect to Patents maintained either by [ ]*, [ ]* or
PixTech ("Maintained Patents") and Elected Inventions shall become exclusive
within the Field (even as to Licensor). Thereafter, PixTech shall have the sole
and exclusive right to Pursue Protection and enforce patents and other rights in
and to the Maintained Patents and Elected Inventions, including pursuing
remedies for past infringement and injunctive relief, subject only to the non-
exclusive licenses granted by Licensor to third parties during the Non-Exclusive
Period as set forth above. Licensor shall have the sole and exclusive right to
Pursue Protection and enforce patents and other rights in and to the Licensed
Technology other than the Maintained Patents and elected Inventions, including
pursuing remedies for past infringement and injunctive relief.
4.3 Enforcement of Legal Rights. PixTech shall have the right to
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initiate or defend any legal action of any nature at its expense for the
defense, protection or preservation of any of the intellectual property rights
derived from this Agreement (or, indirectly, the Prior Agreements), acting in
all circumstances on behalf of Licensor as Licensor's agent. PixTech shall be
entitled to recover from the first proceeds of any adjudication or other
resolution of such action all of its costs and expenses, including reasonable
attorney and expert-witness fees, expended in such action, and shall be entitled
to share with Coloray the benefit of any royalty stream, settlement or other
adjudicated or agreed resolution of the matter in proportion to PixTech's proven
enhancements after the Effective Date of this Agreement to the Licensed
Technology which was the subject of such action; provided, however, that in no
event shall such share to PixTech be less than 20% of such benefit as and when
realized; except that, if and to the extent that Licensor is obliged to
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participate in financing such action there shall be an equitable division of
such proceeds reflecting each party's relative participation.
5. CONFIDENTIALITY
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5.1 Confidential Information. The Parties acknowledge that
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Confidential Information disclosed to it by the other Party constitutes valuable
trade secrets of such other Party and each Party agrees that it shall use such
Confidential Information received by it from the other Party solely in
accordance with the provisions of this Agreement and will not disclose, or
permit to be disclosed, the same, directly or indirectly, to any third party
without the other Party's prior written
* Confidential information omitted and filed with the Commission.
consent. Each Party agrees to exercise due care in protecting the confidential
Information from unauthorized use and disclosure. Notwithstanding the foregoing,
provisions of this Section 5.1, and except to the extent that it can be
established by the receiving Party by competent proof, "Confidential
Information" excludes information that: (i) is or becomes part of the public
domain through no fault or breach of the Receiving Party; (ii) is known to the
Receiving Party prior to disclosure thereof, or (iii) is subsequently rightfully
obtained by the Receiving Party from a third party that has the legal right to
disclose such information to the Receiving Party; (iv) is independently
developed by the receiving Party without use of or reference to the Disclosing
Party's Confidential Information; (v) is furnished to a third parry by the
Disclosing Party without restrictions similar to the terms hereof on the third
party's right to use or disclose; (vi) is required by law to be disclosed by the
Receiving Party, provided that the Receiving Party gives the Disclosing Party
prompt written notice of such requirement prior to such disclosure; or (vii) has
been approved for use or disclosure by the Disclosing Party.
5.2 Permitted Use and Disclosures. Notwithstanding the provisions
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of Section 5.1, PixTech may use or disclose Confidential Information disclosed
to it in connection with this Agreement, to the extent such use or disclosure is
reasonably necessary to exercise the rights granted to it hereunder (including
granting permitted sublicenses) or as required by law, provided that it uses
reasonable efforts to secure confidential treatment of such information prior to
its disclosure (whether through confidentiality agreements, protective orders or
otherwise).
5.3 Non-Disclosure of Terms. Each of the Parties hereto agrees not
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to disclose to any third party the terms of this Agreement without the prior
written consent of the other Party, except to the Party's attorneys, advisors,
investors and others on a need to know basis under circumstances that reasonably
ensure the confidentiality thereof, or to the extent required by law.
6. REPRESENTATIONS, WARRANTIES AND INDEMNITY
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6.1 Licensor represents, warrants and covenants that: (i) it has and
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will continue to have the full right and authority to enter into this Agreement,
perform its obligations hereunder, and grant the rights and licenses granted
herein, (ii) other than the existing agreements with [ ], [ ]* and SRI
International, copies of which have been previously provided to Licensee, and
any other license entered into by Licensor prior to its bankruptcy (completed in
1993), Licensor has not previously granted and will not grant any rights
inconsistent or in conflict with the rights and licenses granted to PixTech
herein, (iii) to the best of Licensor's knowledge, there are no existing or
threatened actions, suits or claims pending or threatened against Licensor, nor
is there any basis therefor, with respect to the Licensed Technology or the
right of Licensor to enter into and perform its obligations under this
Agreement, and the Licensed Technology is subject to any outstanding injunction,
judgment, order, decree, ruling or charge; (iv) to the best of Licensor's
knowledge, the manufacture, sale and use of FED Products in accordance with the
Licensed Technology will not infringe any intellectual property rights of a
third party; (v) to the best of Licensor's knowledge, it owns, and is the record
holder of title of, all rights in and to the patents, patent applications and
Inventions listed in Schedule A free and clear of any Encumbrances; (vi) to the
best of Licensor's knowledge, it is the exclusive licensee of a rights in and to
the patents, patent applications and Inventions listed in Schedule B, free and
clear of any Encumbrances and is in compliance with all terms of all licenses
relating to any Licensed Technology licensed to Licensor; (vii) to the best of
Licensee's knowledge, the patents listed Schedule A are valid and enforceable;
(viii) to the best of Licensor's knowledge, no third party is infringing or
otherwise violating Licensor's rights in the Licensed Technology other than any
alleged infringements of which PixTech is
* Confidential information omitted and filed with the Commission.
aware; (ix) Licensor has not had a receiver or similar officer appointed for it,
and has not had proceedings under insolvency or bankruptcy laws commenced by or
against Licensor as of the Effective Date; and (x) Standard Energy is the
secured creditor of Coloray, with a security interest in the Licensed Technology
pursuant to Patent Pledge Agreements and other instruments, and pursuant to such
security interests, Standard Energy is entitled to receive directly the
compensation otherwise due to Coloray for application on amounts owed by Coloray
to Standard Energy.
6.2 Licensor Indemnity. Licensor agrees to defend, indemnify and
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hold PixTech harmless against any loss, cost, damage or liability (including
reasonable attorneys' fees and costs) arising from or related to any material
breach of Licensor's representations and warranties set forth above, including
without limitation any action or claim brought or threatened against PixTech or
its customers as a result thereof.
6.3 PixTech Indemnity. PixTech agrees to defend, indemnify and hold
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Licensor harmless against any loss, cost, damage or liability (including
reasonable attorneys' fees and costs) arising from or related to any material
breach of its obligations hereunder and any claim that FED products
manufactured by or for PixTech under the Licensed Technology are defective under
product liability law, provided that such claim is not due in whole or in part
to any negligent act or omission or willful misconduct of Licensor or Licensor's
employees, agents, or independent contractors. PixTech's indemnity obligation
under this Section 6.3 shall be subject to Licensor: (i) promptly notifying
PixTech of the claim or action giving rise to the indemnity; (ii) providing
PixTech with control and authority over the defense of such action or claim,
(iii) providing PixTech with proper and full information and reasonable
assistance to defend and/or settle any such claim or action. PixTech shall not
be responsible for indemnifying any party with respect to costs incurred, or
amounts paid in any settlement, unless PixTech has approved such costs or
settlements in advance.
7. TERM AND TERMINATIONS
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7.1 Term. This Agreement will take effect on the Effective Date and
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shall remain in effect perpetually, unless earlier terminated in accordance with
the provisions of this Agreement.
7.2 Termination for Breach. Either Party may terminate this
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Agreement, immediately upon written notice at any time if the other Party is in
material breach of any warranty, term, condition or provision of this Agreement,
which breach, if capable of being cured, is not cured within thirty (30) days
after written notice of said breach by the nonbreaching Party. It is understood
and agreed that Coloray may not terminate this Agreement for any reason other
than for an uncured material breach by PixTech as set forth in this Section 7.2.
Breaches by PixTech that shall constitute a material breach for purposes of this
Section 7.2 shall be limited to failure by PixTech to pay the license fee set
forth in Section 3.1 above and failure by PixTech to issue the stock set forth
in Section 3.2 above.
7.3 Effect of Termination. Sections 7.3 and 8 shall survive the
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expiration or termination of this Agreement for any reason. Section 5 shall
survive expiration or termination of this Agreement for a period of three (3)
years. Section 2 shall survive any termination of this Agreement for breach by
Licensor. Section 2 shall not survive any termination of this Agreement for
breach by PixTech. Termination of this Agreement for any reason shall not
release any Party hereto from any liability which at the time of such
termination has already accrued to the other Party or which is attributable to a
period prior to such termination, nor preclude either Party from pursuing all
rights and remedies it may have hereunder or at law or in equity with respect to
any breach of this Agreement.
8. MISCELLANEOUS
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8.1 Waiver. It is agreed that no waiver by any Party hereto of any
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breach or default of any of the covenants or agreements herein set forth shall
be deemed a waiver as to any subsequent and/or similar breach or default.
8.2 Government Laws. This Agreement and any dispute arising from the
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performance or breach hereof shall be governed by and construed and enforced in
accordance with the laws of the State of Ohio, without reference to conflicts of
laws principles.
8.3 Jurisdiction Venue. All disputes arising out of this Agreement
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will be subject to the exclusive jurisdiction and venue of the California state
courts of Santa Clara County, California (or, if there is exclusive federal
jurisdiction, the United States District Court for the Northern District of
California), and the Parties consent to the personal and exclusive jurisdiction
of these courts.
8.4 Assignment. This Agreement shall not be assignable by either
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Party to any third party without the written consent of the other Party hereto;
except either Party may assign this Agreement without such consent, to a
successor-in-interest to all or substantially all of the business or assets of
such Party to which this Agreement pertains, whether by merger, reorganization
acquisition, sale, or otherwise.
8.5 Notices. All notices, requests and other communications
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hereunder shall be in writing and shall be personally delivered or sent by
telecopy or other electronic facsimile transmission or by registered or
certified mail, return receipt requested, postage prepaid, in each case to the
respective address specified below, or such other address as may be specified in
writing to the other party hereto:
PixTech: PixTech, Inc.
3350 Scott Boulevard, Building 37
Santa Clara, CA 95054
Attn: Michel Garcia
With a required copy to:
Michael Lytton, Esq.
Palmer & Dodge, LLP
One Beacon Street
Boston, Ma 02108
Licensor: Coloray Display Corporation
c/o Suite 602
1105 Schrock Road
Columbus, OH 43229
With a required copy to:
Thomas E. Moloney, Esq.
Baker & Hostetler, LLP
65 East State Street
Columbus, Ohio 43215
In addition, for a separate and valuable consideration, receipt of
which is hereby acknowledged, Coloray agrees that in the event that Coloray
liquidates, sells its assets, files for protection under any Chapter of the
Federal Bankruptcy Act, or ceases to do active business, PixTech shall become
entitled to receive copies of all Notices of any kind or character which Coloray
is entitled to receive under the Prior Agreements identified in Section 4.1.
8.6 Severability. In the event that any provision of this Agreement
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becomes or is declared by a court of competent jurisdiction to be illegal,
unenforceable or void, this Agreement shall continue in full force and effect
without said provision.
8.7 Force Majeure. Nonperformance of any Party shall be excused to
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the extent that performance is rendered impossible by strike, fire, earthquake,
flood, governmental acts or orders or restrictions, failure of suppliers, or any
other reason where failure to perform is beyond the reasonable control and not
caused by the negligence, willful misconduct of the nonperforming Party.
8.8 Complete Agreement. This Agreement including the Exhibits
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attached hereto, constitutes the entire agreement, both written and oral,
between the Parties with respect to the subject matter hereof, and all prior
agreements respecting the subject matter hereof, either written or oral,
expressed or implied, shall be abrogated, canceled and are null and void and of
no effect. No amendment or change hereof or addition hereto shall be effective
or binding on either of the Parties hereto unless reduced to writing and
executed by the respective duty authorized representatives of PixTech and
Licensor.
8.9 Headings. The captions to the several Sections hereof are not a
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part of this Agreement, but are included merely for convenience of reference
only and shall not affect its meaning or interpretation.
8.10 Counterparts. This Agreement may be executed in counterparts,
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each of which shall be deemed to be an original and both together shall be
deemed to be one and the same agreement.
8.11 SRI Restated License. This Agreement is expressly subject to
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the terms and conditions of the SRI Restated License to the extent applicable to
the Licensed Technology, and to the extent that any of the terms of this
Agreement is inconsistent with the terms of the SRI Restated License as
applicable to the Licensed Technology, then the terms of the SRI Restated
License shall prevail.
IN WITNESS WHEREOF, the Parties have executed this Agreement, by their
respective officers hereunto duly authorized, the day and year first above
written.
LICENSEE: LICENSOR:
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PIXTECH, INC. COLORAY DISPLAY CORPORATION
By: /s/ Yves Morel By: /s/ Philip A. Schlosser
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Name: Yves Morel Name: Philip A. Schlosser
-------------------------- -------------------------------
Title: CFO Title: President
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EXHIBIT A
PATENTS, PATENT APPLICATIONS AND INVENTION DISCLOSURES
OWNED BY COLORAY
[ ]*
* Confidential information omitted and filed with the Commission.
EXHIBIT B
PATENT, PATENT APPLICATIONS, AND INVENTION DISCLOSURES EXCLUSIVELY LICENSED TO
COLORAY
[ ]*
* Confidential information omitted and filed with the Commission.