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Exhibit 10.46*
JOINT VENTURE MASTER AGREEMENT
This is a Joint Venture Master Agreement, dated as of October 30, 1996
(the "Agreement"), between Nichimen Corporation, a Japanese corporation
("Nichimen"), NKK Plant Engineering Corporation, a Japanese corporation ("NKP"),
and Molten Metal Technology, Inc., a Delaware corporation ("MMT").
WHEREAS, MMT is an environmental technology company engaged in the
commercialization and continued development of its proprietary processing
technology known as Catalytic Extraction Processing (or CEP);
WHEREAS, Nichimen and NKP have substantial experience and knowledge of the
Japanese environmental market, particularly with respect to processing of MSW
Incinerator Ash;
WHEREAS, Nichimen and NKP have evaluated various alternative technologies
for processing MSW Incinerator Ash and have selected CEP as the best technology
for commercialization in the Japanese market; and
WHEREAS, the parties wish to enter into an arrangement whereby they
commercialize CEP by marketing, demonstrating and operating CEP Plants, and
sublicensing CEP technology to Nichimen, NKP and appropriate third parties to
permit them to sell and operate CEP Plants for the processing of MSW Incinerator
Ash produced from the incineration of Japanese municipal waste in Japan and
under certain circumstances for the processing of Industrial Incinerator Ash
produced from the incineration of Japanese industrial waste in Japan.
NOW, THEREFORE, the parties hereto agree as follows:
Article 1
Defined Terms
In addition to the defined terms found elsewhere in this Agreement, as
used in this Agreement the following terms shall have the following meanings:
"Advisors" means, with respect to any Person, any of such Person's
attorneys, accountants, lenders or consultants.
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under common control with, such Person. As used in
this definition, "control" (including, with its correlative meanings,
"controlled by" and "under common control with") means the possession, directly
or indirectly, of power to direct or cause the
*Confidential Treatment has been requested for certain portions of this
Exhibit 10.46.
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direction of the management and policies of a Person, whether through the
ownership of Voting Securities, by contract or otherwise.
"Articles of Incorporation" means the Articles of Incorporation of the JV
in the form of Exhibit A hereto.
"Bankruptcy" means, with respect to any Person, (i) the filing by such
Person of a voluntary petition seeking liquidation, reorganization, arrangement
or readjustment, in any form, of its debts under Title 11 of the United States
Code or equivalent provisions of Japanese law, or corresponding provisions of
future laws (or any other federal or state insolvency law), (ii) the filing by
such Person of an answer consenting to or acquiescing in any such petition,
(iii) the making by such Person of any assignment for the benefit of its
creditors or the admission by such Person in writing of its inability to pay its
debts as they mature, (iv) the suspension by a clearinghouse of transactions
between a Person and such Person's bank or other lending institution in
accordance with the rules of such clearinghouse, provided that such suspension
shall not have been withdrawn within thirty (30) days after the invocation
thereof, (v) the filing of an involuntary petition against such Person under
Title 11 of the United States Code or equivalent provisions of Japanese law (or
corresponding provisions of future laws), an application for the appointment of
a receiver for the assets of such Person, or an involuntary petition seeking
liquidation, reorganization, arrangement or readjustment of its debts under any
other federal or state insolvency law, provided that the same shall not have
been vacated, set aside or stayed within a 60-day period after the occurrence of
such event, or (vi) the entry against such Person of a final non-appealable
order for relief under any bankruptcy, insolvency or similar law now or
hereafter in effect.
"Board of Directors" means the Board of Directors of the JV.
"Business Plan" means the Business Plan of the JV that has been approved
by the Partners, as revised from time to time pursuant to Section 4.2(b) hereof.
"Catalytic Extraction Processing" or "CEP" means the processes, methods
and systems (including all Intellectual Property and other intangible and
tangible property associated therewith and including all aspects of accepting
Feedstocks, reactions within a CEP Plant, and handling Recovered Resources)
directed to the processing of Feedstocks by introducing the Feedstocks to a
processing vessel containing liquefied metal.
"CEP Core Technology" means any technical information, know-how, data,
applications, formulae, models, computations, applied technology, computer
simulations, designs, drawings and expertise necessary or useful in connection
with CEP, including but not limited to reactor design, feed and reactant
introduction, and removal of Recovered Resources.
"CEP Plant" means the plant, equipment and other facilities necessary to
perform, operate and maintain CEP on a commercial basis (or, in the case of any
so-called
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"demonstration" CEP Plant, on the basis generally provided in the applicable
demonstration program).
"CEP Plant Agreement" means the CEP Plant Purchase and Sale Agreement
entered into by MMT, Nichimen and the JV in the form of Exhibit B hereto.
"Competing Activity" has the meaning set forth in Section 7.2.
"Confidential Information" means, as applicable, JV Confidential
Information, MMT Confidential Information, Nichimen Confidential Information
and NKP Confidential Information.
"Dispute Resolution Agreement" means the Dispute Resolution Agreement
entered into by the Partners and the JV in the form of Exhibit C hereto.
"Employee Non-Disclosure Agreement" means an employee non-disclosure and
invention agreement in the form attached as Annex A to the License Agreement or
in such other form as is approved from time to time by the Board of Directors.
"Exclusive Market" means the processing in Japan of MSW Incinerator Ash
produced from the incineration in Japan of Municipal Waste generated in Japan.
"Feedstocks" means, with respect to any CEP Plant, the wastes, industrial
by-products and other materials to be processed by such CEP Plant.
"Improvements" shall mean any improvements, developments, updates,
upgrades, enhancements, additions, revisions, corrections, fixes and other
modifications to any party's Intellectual Property which relates to the JV's
business and which MMT, Nichimen, NKP or the JV may acquire, discover, invent,
originate, conceive or have a right to develop or manufacture, whether or not
the same is patentable, commercially useful or reducible to writing or practice.
"Industrial Incinerator Ash" means the ash by-products remaining after the
incineration of Industrial Waste, other than any ash by-products which are
radioactive or have been produced from the incineration of radioactive
industrial waste.
"Industrial Waste" means waste that is generated by industrial facilities
and that is processed at industrial waste incinerators in Japan.
"Initial Business Paradigm" means the anticipated initial operational
structure of the JV, as described in Section 5.2 and as illustrated in Exhibit D
hereto.
"Initial CEP Plant" means the CEP Plant to be sold to the JV pursuant to
the CEP Plant Agreement.
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"Intellectual Property" means all patents, inventions, patent
applications, patent rights, trademarks, trademark registrations, trade names,
brand names, all other names and slogans embodying business or product goodwill
(or both), copyright registrations, copyrights (including those in computer
programs, software, including all source code and object code, development
documentation, programming tools, drawings, specifications and data), software,
trade secrets, know-how, mask works, industrial designs, formulae, processes and
technical information, including confidential and proprietary information,
whether or not subject to statutory registration or protection.
"JV" means the joint venture which Nichimen, NKP and MMT have agreed to
form pursuant to this Agreement.
"JV Confidential Information" means any confidential or proprietary
information of any type of the JV.
"License Agreement" means the License Agreement entered into by MMT and
the JV in the form of Exhibit E hereto.
"Limited Guaranty" means any Limited Guaranty in the form of Exhibit F
hereto that may be executed by any of the Partners from time to time.
"Market" means the Exclusive Market and the Non-Exclusive Market,
collectively.
"Market Feedstocks" means MSW Incinerator Ash produced from the
incineration in Japan of Municipal Waste generated in Japan and under certain
circumstances Industrial Incinerator Ash produced from the incineration in Japan
of Industrial Waste generated in Japan.
"MMT Confidential Information" means any confidential or proprietary
information of any type of MMT or furnished by MMT, including but not limited to
any confidential or proprietary portion of the Licensed Property.
"MMT Directors" means MMT's designees to the Board of Directors.
"MSW Incinerator Ash" means the ash by-product captured in the
gas-handling train of an incinerator after the incineration of Municipal Waste
(fly ash), and the ash by-product captured at the bottom of an incinerator
(bottom ash) after the incineration of Municipal Waste.
"Municipal Waste" means waste that is typically generated by households,
retail facilities or business offices and that is processed at municipal waste
incinerators in Japan.
"Nichimen Confidential Information" means any confidential or proprietary
information of any type of Nichimen or furnished by Nichimen.
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"Nichimen/NKP Directors" means Nichimen's and NKP's designees to the
Board of Directors.
"NKP Confidential Information" means any confidential or proprietary
information of any type of NKP or furnished by NKP.
"Non-Exclusive Market" means the processing in Japan of Industrial
Incinerator Ash produced from the incineration of Industrial Waste generated in
Japan.
"Partners" means Nichimen, NKP and MMT, collectively.
"Person" means any individual, partnership, corporation, association,
trust, limited liability company, joint venture, unincorporated organization and
any government, governmental department or agency or political subdivision
thereof.
"President-Director" means the Representative Director nominated by
Nichimen and NKP, subject to the approval of MMT, who shall be responsible for
the day-to-day management of the JV.
"Recovered Resources" means the elements and compounds produced by a CEP
Plant (whether or not produced through the use of reactants) that are suitable
for use or sale.
"Recycling" means the return of resources which are recovered or produced
from waste or other similar materials for use or sale.
"Related Agreements" means this Agreement, the License Agreement, the
Dispute Resolution Agreement, the Articles of Incorporation, the CEP Plant
Agreement, and any Limited Guaranty, each as amended from time to time, and any
other agreement between any of the JV, Nichimen, NKP or MMT relating to the JV
which specifies that it is a Related Agreement for purposes of this Agreement.
"Subsidiary" means a corporation, company or other entity:
(i) more than fifty percent (50%) of whose outstanding shares or
securities (representing the right to vote for the election of
directors or other managing authority) are, now or hereafter, owned
or controlled, directly or indirectly, by a party hereto, but such
corporation, company or other entity shall be deemed to be a
Subsidiary only so long as such ownership or control exists; or
(ii) which does not have outstanding shares or securities, as may be the
case in a partnership, joint venture or unincorporated association,
but more than fifty percent (50%) of whose ownership interests
representing the right to make the decisions for such corporation,
company or other entity is now or hereafter, owned or controlled,
directly or indirectly, by a party hereto, but such
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corporation, company or other entity shall be deemed to be a
Subsidiary only so long as such ownership or control exists.
"Treatment" means, with respect to any material, (i) any physical,
mechanical, thermal and/or chemical actions which, individually or in concert,
alter the chemical composition of such material or (ii) any method for
containment or disposal of such material.
"Voting Securities" mean, with respect to any Person, all securities
issued by such Person having the ordinary power to vote in the election of
directors of such Person, other than securities having such power only upon the
occurrence of a default or any other extraordinary contingency.
Article 2
Formation of the JV
2.1. Purpose of JV. The Partners agree that, subject to the terms and
conditions of this Agreement and the Related Agreements, they shall form the JV
to market, demonstrate, sell, own and operate CEP Plants, and sublicense CEP
technology to Nichimen, NKP and appropriate third parties to permit them to
sell, own and operate CEP Plants, to serve the Exclusive Market and under
certain circumstances the Non-Exclusive Market.
2.2. Establishment of the JV. As soon as possible after the date hereof,
the Partners shall cause the JV to be established as a Japanese corporation
under a name to be agreed on by the Partners. The registered office of the JV
shall be located at NKP's office, 0 Xxxxxx-Xxx, Xxxxxxx-xx, Xxxxxxxx, Xxxxx 000.
Each of the Partners shall cooperate with each other in carrying out the
procedures necessary to establish and register the JV. At the time the JV is
established, the Partners shall cause the JV to adopt the Articles of
Incorporation.
2.3. Roles and Responsibilities of the Partners.
(a) Recognizing MMT's expertise as a technology provider, MMT's roles
and responsibilities shall be the following:
(i) to assist in the overall management and operation of the JV;
(ii) to grant to the JV the exclusive license (with rights to
sublicense) to sell, own, lease, rent, operate, install and
maintain CEP Plants in the Exclusive Market, under the terms
and conditions of the License Agreement;
(iii) to grant to the JV the non-exclusive license (with rights to
sublicense)
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to sell, own, lease, rent, operate, install and maintain CEP
Plants in the Non-Exclusive Market, under the terms and
conditions of the License Agreement;
(iv) to construct and sell CEP Plants and critical spare parts
to the JV, under the terms of the License Agreement;
(v) to provide the necessary designs, specifications, drawings and
other technical information necessary to operate and maintain
the CEP Plants supplied by MMT; and
(vi) to use its best efforts to assist the JV in promoting the use
of CEP for the processing of MSW Incinerator Ash in the
Market.
(b) Recognizing Nichimen's expertise as a Japanese trading company,
Nichimen's roles and responsibilities shall be the following:
(i) to assist in the overall management and operation of the JV;
(ii) to act as the sole importer of CEP Plants and spare parts on
behalf of the JV and to provide all necessary services and logistics
for importation of CEP Plants and spare parts into Japan, including
land and ocean transportation, marine insurance and customs
clearance;
(iii) to arrange credit and financing for the sale of CEP Plants
in Japan on standard commercial terms;
(iv) to act as a prime contractor for the sale of CEP Plants to
customers of the JV, including negotiating price to customer and
scope of supply; and
(v) to use its best efforts to assist the JV in promoting the use
of CEP for the processing of MSW Incinerator Ash in the Market.
(c) Recognizing NKP's expertise in engineering, construction, operation
and maintenance of municipal incinerators and related systems, NKP's
roles and responsibilities shall be the following:
(i) to assist in the overall management and operation of the JV;
(ii) to assist in the start-up of the Initial CEP Plant by
providing dedicated engineering and operations personnel in
accordance with Section 5.7 hereof;
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(iii) to act as contractor in connection with the transportation,
installation, operation and maintenance of CEP Plants in
Japan;
(iv) to act as a prime contractor for the sale of CEP Plants to
customers of the JV, including negotiating price to customer
and scope of supply; and
(v) to use its best efforts to assist the JV in promoting the use
of CEP for the processing of MSW Incinerator Ash in the
Market.
Article 3
Capitalization and Funding of the JV; Accounting
3.1. Capitalization of the JV. At the time of formation of the JV, the
Partners shall mutually determine the authorized capital of the JV. At the time
the JV is funded, Nichimen shall contribute twenty-five and one-half percent
(25.5%) of the initial capital in exchange for 25.5% of the equity interests of
the JV, NKP shall contribute twenty-five and one-half percent (25.5%) of the
initial capital in exchange for 25.5% of the equity interests of the JV, and MMT
shall contribute forty-nine percent (49%) of the initial capital in exchange for
49% of the equity interests of the JV. Payment for all such equity interests
shall be made in cash. The Partners shall mutually determine how the balance of
the JV's initial funding is to be paid. All such funding shall be contributed by
each Partner in proportion to its initial equity investment.
3.2. Additional Capital Contributions. Unless otherwise agreed by the
Partners, no Partner shall be obligated to make capital contributions to the
JV other than as set forth in Section 3.1.
3.3. Funding of JV's Operations. In addition to the Partners' initial
capital contributions pursuant to Section 3.1, if necessary, the JV may issue
debt or obtain a working capital line of credit to fund its operations. The
issuance of any debt or the obtaining of a working capital line of credit shall
require the prior approval of the Board of Directors.
*
*Confidential Treatment has been requested for this portion of Exhibit 10.46.
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*
3.4. Income and Loss. All distributions of income and responsibilities
for losses shall be based on each Partner's equity interest in the JV.
3.5 Accounting; Books and Records. The JV's fiscal year shall end on
such date as the Partners shall mutually agree. The JV shall retain a mutually
acceptable accounting firm to audit the JV's financial statements for each
fiscal year and to prepare the JV's income tax returns. The books and records of
the JV shall be maintained, and the financial statements of the JV shall be
prepared, in accordance with generally accepted accounting principles as in
effect in Japan, consistently applied. The Board of Directors shall appoint a
Partner to be responsible for keeping and maintaining the JV's books and
records.
Article 4
Governance
4.1. Establishment.
(a) Simultaneously with the incorporation of the JV, the Partners
shall establish the Board of Directors to implement this
Agreement and the Related Agreements. Except as otherwise
provided for in the Articles of Incorporation or as required by
applicable law, the Board of Directors will oversee the
development and operations of the JV and shall have
responsibility of the management, direction and control of the
JV. Unless the Partners agree otherwise, the Board of Directors
shall consist of a total of four (4) members, two of whom shall
be designated by MMT and two of whom shall be designated by
Nichimen and NKP. Each director shall serve at the pleasure of
the Partner which designated such director and may from time to
time be replaced by such Partner. Any such replacement must be a
member of senior management of the designating Partner. Each
Partner shall notify the other Partners in writing of the persons
designated by it to serve on the Board of Directors and any
replacement for such person promptly following such designation
or replacement. Each Partner hereby agrees to votes its shares
of the JV, and to cause the directors of the JV designated by
such Partner to cast their votes, so as to appoint as directors
and President-Director the individuals nominated by the other
Partners in accordance with this Section 4.1.
(b) One of the Nichimen/NKP Directors shall be nominated jointly by
Nichimen and NKP to serve as the Representative Director, subject
to the approval of MMT. The Representative Director also shall
be designated as the President of the JV (the "President-Director").
The President-Director shall preside at all meetings of the Board
of Directors and shall have such other duties and responsibilities
as are assigned from time to time by the Board of Directors.
*Confidential Treatment has been requested for this portion of Exhibit 10.46.
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4.2. Authority and Duties.
(a) The Board of Directors shall have the specific authority delegated
to it pursuant to this Agreement and the Related Agreements.
(b) Without limiting the general duties and authority of the Board of
Directors as set forth in this Article 4, the Board of Directors
shall have responsibility for the following matters related to the
business of the JV:
(i) the appointment and evaluation of the performance of any
Nichimen, NKP, MMT or other personnel assigned or hired to
participate in the management of the JV's operations;
(ii) the evaluation of the performance of the President-Director;
(iii) the establishment and monitoring of capital and operating
budgets;
(iv) issuance of sublicenses for CEP Plants;
(v) incurrence of indebtedness;
(vi) establishment of sales and marketing policies;
(vii) approval of any sales representative agreement,
manufacturing agreement, or sublicense agreement;
(viii)approval of capital increases;
(ix) election or removal of independent public accountants;
(x) approval of the distribution of profits or the payment of
losses;
(xi) approval of any proposals required to be submitted to the
shareholders;
(xii) approval of employment policies and personnel regulations;
and
(xiii)such other duties agreed to from time to time by the
Partners.
The Board of Directors shall also review the Business Plan at least
annually, and revise it as appropriate to reflect the business
conditions and prospects for the JV.
4.3. Meetings. The Board of Directors will meet as often as the members
deem necessary, presently contemplated to be four times per year. Meetings may
be conducted in
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person or by telephone or in any other manner agreed to by the Board of
Directors. Any Partner may call a meeting of the Board of Directors upon at
least three (3) weeks' prior notice. No notice of a meeting shall be necessary
when all members of the Board of Directors are present. The presence of at least
both MMT Directors and both Nichimen/NKP Directors shall constitute a quorum.
All actions of the Board of Directors shall require the unanimous consent of all
Directors present and participating in a meeting. Meetings of the Board of
Directors may be attended by other representatives of the Partners and other
persons related to the JV all as agreed to from time to time by the Board of
Directors. The Board of Directors will set up procedures relating to the
recording of minutes of its meetings. To the extent permitted by applicable law,
actions of the Board of Directors may also be taken without a meeting by
unanimous written consent of the Board of Directors.
4.4. JV Personnel.
(a) It is anticipated that the JV will not have any employees but will
rely on personnel from Nichimen, NKP and MMT to manage its
operations. Such personnel shall be designated by the applicable
Partner, subject to approval by the Board of Directors. Unless
otherwise agreed by the Board of Directors, all such personnel shall
be paid by the Partner which designated them.
(b) Notwithstanding paragraph (a), until such time as the JV has sold at
least one CEP Plant, the JV may, if necessary, retain not more than
one employee for administrative and related functions. Such
employee, if any, will be nominated by the President-Director,
subject to approval by the Board of Directors. The terms of such
employee's employment, including compensation, will be determined by
the Board of Directors. After the JV has sold at least one CEP
Plant, the Board of Directors shall decide whether or not to hire
additional employees based on the actual business needs of the JV.
4.5. President-Director. The President-Director shall have the duties and
responsibilities described in Section 4.6. The President-Director may be removed
from office only with the unanimous agreement of the Board of Directors (other
than the President-Director), except that if either the MMT Directors or the
Nichimen/NKP Directors have objected to the Board of Directors on at least three
separate occasions about the President-Director's performance, providing
information about the grounds for such objections in reasonable detail, then
upon the request of the objecting party the Board of Directors shall remove the
President-Director. Upon the retirement or removal of the President-Director,
Nichimen and NKP shall nominate a new President-Director, subject to the
approval of MMT.
4.6. Duties of President-Director. Except as provided in Section 4.2
hereof and the Articles of Incorporation, the President-Director shall be
responsible for the day-to-day management, operations, direction and
administration of the JV, implementing the policies established by the Board of
Directors, and shall have such other duties and responsibilities
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related to the JV as the Board of Directors shall from time to time direct. The
President-Director shall be responsible for advising the Board of Directors on
the status of the JV on a regular basis or more frequently as requested by the
Board of Directors. The President-Director also shall be responsible for hiring
such personnel, if any, as the President-Director and the Board of Directors
deem necessary and appropriate. Unless otherwise agreed by the Board of
Directors, all such personnel shall be subject to the approval of the Board of
Directors.
Article 5
Operations of the JV; Sales and Marketing of CEP Plants; Certain Commitments
5.1. Operations of the JV. In commercializing CEP pursuant to this
Agreement, the Partners will consider all appropriate business structures to
maximize sales of CEP Plants. Based on the Partners' analysis of the existing
conditions in the Market, the Partners anticipate that the JV's operations
initially will be conducted as described in the Initial Business Paradigm set
forth in Section 5.2.
5.2. Initial Business Paradigm.
(a) Pursuant to a sublicense from the JV, sales of CEP Plants will be
made by Nichimen and NKP (and potentially MMT or third party sales
representatives appointed pursuant to Section 5.5) directly to
owners of municipal waste incinerators in the Exclusive Market and
under certain circumstances in the Non-Exclusive Market ("End
Users"). It is anticipated that Nichimen and NKP would enter into
long-term contracts with such End Users which would provide for the
sale, importation, transportation, installation, start-up, testing,
operation and maintenance of CEP Plants by Nichimen and NKP for the
benefit of the End Users. The price for the CEP Plant and other
goods and services to be provided to the End Users will be
negotiated by Nichimen and NKP as prime contractors directly with
the End Users. An itemized list of prices for the CEP Plant and such
goods and services will be provided to the Board of Directors.
(b) Nichimen and NKP will utilize, subject to MMT's approval, a form of
agreement to be used for such CEP Plant sales and services. Such
agreement will, at a minimum, include provisions requiring the End
User of the CEP Plant to (i) protect the MMT and the JV's
Confidential Information and Intellectual Property, (ii) only use
the CEP Plant for the processing of the Market Feedstocks expressly
specified in the CEP Plant sales agreement, (iii) purchase specified
critical spare parts for the CEP Plant only from MMT, and (iv)
indemnify the JV and the Partners from any damage or injury caused
by the End User's improper use or operation of the CEP Plant.
Changes to the standard agreement may be made to the extent required
as a result of negotiations with the End User, provided that the
Board of Directors will have
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the right to review all CEP Plant contracts and to approve any
material changes to the standard agreement.
(c) MMT will design, engineer and construct all CEP Plants and spares to
be sold by Nichimen, NKP and any third party sales representatives
on behalf of the JV. The price to the JV for each CEP Plant shall be
determined solely by MMT based on the capacity of the CEP Plant and
any special customer requirements. All prices quoted by MMT shall be
free on truck "ex works". Nichimen, as sole importer for the JV,
shall purchase the CEP Plants and spares from MMT and shall be
responsible for the transportation of such CEP Plants and spares
from MMT's factory to Japan.
*
(d) The JV will purchase the CEP Plants and spares from Nichimen and
then resell them to Nichimen or NKP, as applicable, for resale to
the End User on the terms described in paragraph (a). NKP will act
as the prime contractor for the installation, operation and
maintenance of CEP Plants on behalf of the End User unless (i)
otherwise requested by the End User for business reasons, or (ii)
the purchaser of the CEP Plant will act as the prime contractor for
the End Use. If the End User requests that NKP not serve as the
prime contractor, Nichimen will propose another prime contractor to
the Board of Directors. The Board of Directors shall have the right
to approve or disapprove any such other prime contractor.
(e) Nichimen and NKP acknowledge and agree that as prime contractors
they shall be responsible for negotiating, consummating and
financing sales of CEP Plants to End Users. All such sales shall be
without recourse to the JV and shall not impose any financial
obligations on the JV. To the extent possible, Nichimen and NKP will
keep the terms of transactions between Nichimen, NKP, MMT and the JV
consistent with respect to the purchase and sale of CEP Plants and
spares.
5.3. Other Business Paradigms. The Partners agree that one of their
shared goals is to minimize the involvement of the JV from the
actual delivery of CEP Plants in order to minimize the transaction
and overhead costs of the JV to the maximum extent possible.
However, to the extent that the use of business paradigms designed
to implement this goal result in the incurrence of extraordinary tax
liabilities by the JV, the Partners will continue to use the Initial
Business Paradigm or attempt to structure other operational
paradigms that meet this goal.
5.4. Sales and Marketing. Each of the Partners will provide marketing
support at their own expense to the JV. This support shall include
making available to the JV all
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*Confidential treatment has been requested for this portion of Exhibit 10.46.
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commercial opportunities in the Market known to the Partners. The Partners agree
to cooperate in their provision of marketing support to the JV in order to make
such marketing as successful as possible. Except as provided in Section 5.2, the
JV shall be required to obtain the consent of the Board of Directors with
respect to the customer, material contract terms, license arrangements and
related matters prior to the completion of any sale of a CEP Plant by the JV. In
order to coordinate and maximize the Partners' respective sales and marketing
efforts, representatives of the Partners with responsibility for sales and
marketing in the Market shall meet from time to time, but no less often than
four times per year, to discuss marketing strategy and the steps each Partner is
taking to promote CEP Plants in the Market. Such meetings may take place at or
in conjunction with meetings of the Board of Directors. Each Partner shall
provide to the other Partners copies of all marketing materials and shall keep
the other Partners informed of any regulatory changes that may affect the sale
or use of CEP Plants in the Market.
5.5. Sales Representatives. In addition to direct sales to customers, the
JV may enter into sales representative agreements with any of the Partners and
any other entity which services the Market. Such sales representatives will be
paid commissions based on the sales price of CEP Plants which they sell. The
Partners will agree upon a form of Sales Representative Agreement (including
commissions) to be used by the JV. Consistent with the Initial Business
Paradigm, it is not presently anticipated that the JV will enter into Sales
Representative Agreements with Nichimen or NKP.
5.6. Fall River Demonstration Programs. Nichimen and NKP acknowledge that
MMT is constructing a demonstration CEP Plant in Fall River, Massachusetts which
will be used for, among other things, demonstration programs for Market
Feedstocks and surrogate Market Feedstocks. The Partners agree that the data
from such demonstration programs may be useful for the JV in its efforts to
commercialize CEP in the Market. The Partners also agree that the demonstration
CEP plant in Fall River may be a valuable marketing tool for the sales
activities of the JV and the Partners. Accordingly, the Partners agree that if
potential customers of the JV desire to have MMT perform demonstration programs
at the Fall River Facility, such demonstration programs will be paid for by the
JV. The payment terms for any such demonstration programs will be agreed on a
case-by-case basis by the JV and MMT. In connection with such demonstration
programs, MMT agrees to permit potential customers of the JV to visit the Fall
River facility and observe the operations of the demonstration CEP Plant. All
such visits shall be at reasonable times and shall require at least two (2)
weeks' notice to MMT. All potential customers will be required to sign
non-disclosure agreements whereby they agree not to disclose any of the
information learned from their observation of the demonstration CEP Plant or any
data or other information provided by MMT.
5.7. Start-Up of Initial CEP Plant. In order to assist the JV in the
start-up and operation of the Initial CEP Plant, NKP will provide the services
of two engineers and five technicians at the JV's expense. Such engineers and
operators will be dedicated solely to the start-up of the Initial CEP Plant.
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Article 6
Effectiveness of Agreement; Related Agreements
6.1. Effectiveness of Agreement. The effectiveness of this Agreement and
the Related Agreements executed as of October 30, 1996 is subject to and
conditional upon (i) approval by the Board of Directors of each of the Partners
and (ii) receipt of all necessary approvals from the Japanese government and
agencies of the Japanese government, including the Fair Trade Commission. The
Partners will use their best efforts to cause all such approvals to be received
no later than December 31, 1996. If all such approvals are not received by such
date, the Partners shall meet to determine what actions will be taken to cause
such approvals to be received.
6.2. Articles of Incorporation. Promptly after the execution and
delivery of this Agreement, the Partners shall form the JV by adopting and
filing the Articles of Incorporation.
6.3. License Agreement. Simultaneously with the formation of the JV,
MMT and the JV shall enter into the License Agreement.
6.4. Dispute Resolution Agreement. Simultaneously with the execution
and delivery of this Agreement, the Partners shall enter into the Dispute
Resolution Agreement. Simultaneously with the formation of the JV, the JV
shall enter into and become a party to the Dispute Resolution Agreement.
6.5. CEP Plant Agreement. Simultaneously with the formation of the
JV, MMT, Nichimen and the JV shall enter into the CEP Plant Agreement.
Article 7
Exclusivity; Non-Competition
7.1. Exclusive Market Obligation of MMT. MMT agrees that, during the term
of this Agreement, except pursuant to this Agreement and other Related
Agreements it shall not either directly or indirectly (whether through its
Affiliates, as a shareholder, partner, or consultant) own or operate any CEP
Plant that processes MSW Incinerator Ash in Japan or sell or license any CEP
Plant pursuant to sale or license terms which permit such CEP Plant to process
MSW Incinerator Ash in Japan.
7.2. Non-Competition Obligation of Nichimen and NKP.
*
*Confidential treatment has been requested for this portion of Exhibit 10.46.
15
16
*
*Confidential treatment has been requested for this portion of Exhibit 10.46.
16
17
*
Article 8
Termination
8.1. Termination by Mutual Consent. This Agreement, and the business
relationship established by this Agreement and the Related Agreements, may be
terminated at any time by the mutual written consent of the Partners.
8.2. Bankruptcy of Nichimen, NKP or MMT. Upon the Bankruptcy of Nichimen,
NKP or MMT, either of the non-bankrupt Partners may elect within ninety (90)
days of the Bankruptcy to terminate the business relationship established by
this Agreement and the Related Agreements.
*
8.5. Termination for Incurrence of Losses. If the JV sustains in excess of
$14,500,000 in losses (determined in accordance with generally accepted
accounting principles as applied in Japan) in the aggregate, any Partner may
elect to terminate the business relationship established by this Agreement and
the Related Agreements by providing written notice of such election to the other
Partners at least ninety (90) days prior to the date on which such termination
shall occur. Either of the other Partners may require the Partner which
delivered the foregoing notice to comply with the procedures set forth in the
Dispute Resolution Agreement prior to any such termination.
8.6. Scheduled Termination. This Agreement shall terminate on October
30, 2006, unless Nichimen, NKP and MMT agree prior to such date to renew this
Agreement for an additional term.
8.7. Effects of Termination.
(a) In the event of any termination of this Agreement pursuant to
Section 7.2(b) or any one of Sections 8.1 to Section 8.6, (i) the
Partners' obligations under the Dispute Resolution Agreement shall
remain in effect, (ii) the provisions of Sections 7.2 and 8.7 and
Articles 9, 10, 12, 13, 14 and 17 shall survive any
17
* Confidential treatment has been requested for this portion of Exhibit 10.46.
18
such termination, (iii) any provision of a Related Agreement which
by its terms states that it shall survive such a termination shall
survive and (iv) such termination shall not effect any Partner's
rights with respect to any breach or non-performance by another
Partner prior to such termination.
(b) In the event of any termination of this Agreement pursuant to
Section 7.2(b) or any one of Sections 8.1 to 8.6, the Board of
Directors will be responsible for winding up the JV. The Board
of Directors shall wind up the JV in an orderly and prudent
manner consistent with the JV's then-existing obligations
(including with respect to developed CEP Plants), with the goals
of fulfilling the JV's contractual obligations, protecting
customer goodwill, limiting any residual liability to the
Partners and effecting a division of assets consistent with the
Partners' ownership interests in the JV. It is anticipated that
all sublicense agreements (including sublicenses granted in
connection with the operation and maintenance of one or more CEP
Plants) in effect at the time the JV is wound up would remain
effective for the expected life of the CEP Plant. The Partners
also may elect to wind up the relationship established by this
Agreement by causing the sale by one or more Partners of its or
their interest in the JV to one of the other Partners.
Article 9
Confidentiality and Related Matters
9.1. Confidentiality Obligations.
(a) Each of Nichimen, NKP and MMT agrees that it will use the other
parties' Confidential Information only in connection with the
activities contemplated by this Agreement and the Related
Agreements, and it will not disclose any other party's Confidential
Information to any Person except as expressly permitted by this
Section 9.1.
(b) Nichimen, NKP or MMT may disclose another party's Confidential
Information:
(i) to any of the other parties to this Agreement;
(ii) to their respective officers and employees who have a
reasonable need to know the contents thereof and who have
signed an agreement substantially in the form of the Employee
Non-Disclosure Agreement, a copy of which shall be provided to
each of the other parties;
(iii) on a confidential basis to their respective Advisors who have
a reasonable need to know the contents thereof, so long as
such
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disclosure is made pursuant to the procedures referred to in
Section 9.3(c);
(iv) to customers who have a reasonable need to know the contents
thereof in connection with the activities contemplated by this
Agreement if such disclosure is made pursuant to the
procedures referred to in Section 9.3(c);
(v) to the extent required by applicable statute, rule or
regulation or any court of competent jurisdiction; provided
that Nichimen, NKP or MMT, as applicable, has made reasonable
efforts to conduct its relevant business activities in a
manner such that the disclosure requirements of such statute,
rule or regulation or court of competent jurisdiction do not
apply, and provided further that the relevant party is given
notice and an adequate opportunity to contest such disclosure
or to use any means available to minimize such disclosure; and
(vii) to the extent such Confidential Information has become
generally available publicly through no fault of Nichimen,
NKP, MMT or their directors, officers, employees, Advisors or
sublicensees.
9.2. Disclosure to Government Authorities. The Board of Directors shall
promptly establish and implement all procedural safeguards required or advisable
in connection with the performance of government contracts to protect the
Confidential Information. Each of Nichimen, NKP and MMT agree to comply, and
cause their employees to comply, with such procedural safeguards.
9.3. Ongoing Confidentiality Program.
(a) In order to ensure that each of Nichimen, NKP and MMT complies with
its obligations in this Article 9, the Board of Directors together
with any advising attorneys shall meet as required to discuss issues
relating to confidentiality and disclosure and other matters
addressed by this Article 9.
(b) With respect to any disclosure by Nichimen, NKP or MMT to any of its
officers or employees permitted pursuant to Section 9.1(b)(ii), such
parties shall cause each of its officers and employees to sign
Employee Non-Disclosure Agreements.
(c) With respect to any disclosure by Nichimen, NKP or MMT to any of its
Advisors pursuant to Sections 9.1 (b)(iii) or to any customers
pursuant to Section 9.1(b)(iv), the Board of Directors will
institute procedures designed to maintain the confidentiality of
Confidential Information while facilitating the business activities
contemplated by this Agreement and the Related Agreements. These
procedures shall include the preparation of standard forms
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of confidentiality agreements to be used by the parties in
connection with such disclosures. The Partners acknowledge
that it is not anticipated that they will be disclosing the
other Partners' Confidential Information to their Affiliates.
Any such disclosure shall require the consent of the Partner
whose Confidential Information is the subject of the proposed
disclosure, and compliance with the provisions of this Section
9.3(c).
Article 10
Improvements and Inventions
10.1. Improvements and Inventions.
*
10.2. Assignment of Intellectual Property and Improvements. During
and after the term of this Agreement, each of Nichimen, NKP and MMT shall, and
shall cause their respective personnel assigned to work on JV activities to,
from time to time as and when requested by the party or parties which have
ownership rights to Intellectual Property or Improvements in accordance with
this Article 10 (the "Requesting Party"), and at the Requesting Party's expense,
but without further consideration, execute all papers and documents and perform
all other acts necessary or appropriate, in the discretion of the
20
*Confidential treatment has been requested for this portion of Exhibit 10.46.
21
Requesting Party, to evidence or further document the Requesting Party's
ownership of such Intellectual Property and Improvements.
Article 11
Transfers of Shares
11.1. General Restriction on Transfer of Shares. Except as
otherwise expressly provided in this Article 11, each Partner hereby covenants
and agrees not to sell, assign, transfer, pledge or otherwise encumber any of
its shares of the JV.
11.2. Transfers to Subsidiaries. Notwithstanding the provisions of
Section 11.1, any Partner may transfer its shares of the JV to a wholly-owned
Subsidiary of such Partner, provided that the Partner and its Subsidiary comply
with the requirements of Section 17.8.
Article 12
Acquisition of Voting Securities
(a) Each of Nichimen and NKP agrees with MMT that, until three (3)
years after the termination of this Agreement, without the
prior written consent of MMT, it will not directly or
indirectly (through an Affiliate or otherwise or in concert)
acquire beneficial ownership of any Voting Securities of MMT
or any of its Subsidiaries, any securities convertible into or
exchangeable for Voting Securities of MMT or any of its
Subsidiaries, or any other right to acquire Voting Securities
of MMT or any of its Subsidiaries, without the consent of MMT
if the effect of such acquisition would be to increase the
percentage of Voting Securities of MMT or such Subsidiary then
beneficially owned directly or indirectly by Nichimen and NKP
and their respective Affiliates collectively to more than 4.9%
of the Voting Securities of MMT or such Subsidiary then issued
and outstanding.
(b) MMT agrees with each of Nichimen and NKP that, until three (3)
years after the termination of this Agreement, without the
prior written consent of Nichimen or NKP, as the case may be,
it will not directly or indirectly (through an Affiliate or
otherwise) acquire beneficial ownership of any Voting
Securities of Nichimen or NKP or any of their respective
Subsidiaries, any securities convertible into or exchangeable
for Voting Securities of Nichimen or NKP or any of their
respective Subsidiaries, or any other right to acquire Voting
Securities of Nichimen or NKP or any of their respective
Subsidiaries, without the consent of Nichimen or NKP, as
applicable, if the effect of such acquisition would be to
increase the percentage of Voting Securities of Nichimen, NKP
or such Subsidiary then beneficially owned directly or
indirectly by MMT and its Affiliates to more than 4.9% of the
Voting Securities of Nichimen, NKP or such Subsidiary then
issued and outstanding.
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Article 13
*
Article 14
Disclosure and Publicity
The Partners agree that prior to any public disclosures concerning the
transactions established by this Agreement or the operations of the JV, the
Partner issuing such disclosure shall provide a copy thereof to each of the
other Partners. All such disclosures shall be subject to the confidentiality
provisions of Article 9 of this Agreement.
Article 15
Uncontrollable Circumstances
(a) Except as provided in paragraph (b) below, if any party is rendered
wholly or partly unable to perform its obligations under this Agreement because
of Uncontrollable Circumstances (as defined below), that party shall be excused
from whatever performance is affected by the Uncontrollable Circumstances to the
extent so affected, provided that:
(i) the nonperforming party, within five (5) days after
it becomes aware of the occurrence of the
Uncontrollable Circumstances, gives the other parties
oral notice, followed by written confirmation,
describing the particulars of the occurrence;
(ii) the suspension of performance is of no greater scope
and of no longer duration than is reasonably required
by the Uncontrollable Circumstances and shall not in
any event apply to any obligation solely to pay
money;
(iii) no obligation of any party which arose before the
occurrence causing the suspension of performance is
suspended as a result of the occurrence; and
22
*Confidential treatment has been requested for this portion of Exhibit 10.46.
23
(iv) the nonperforming party uses its best efforts to
promptly remedy its inability to perform.
(b) "Uncontrollable Circumstances" shall mean any act or event
that prevents a party from performing its obligations, or
complying with any conditions that it must comply with, under
this Agreement if such act or event was not caused by and is
beyond the reasonable control of the party relying thereon as
justification for such nonperformance or noncompliance. Such
acts or events include, without limitation but only to the
extent not caused by and outside the reasonable control of the
applicable party, acts of God, explosion, fire, epidemic,
earthquake, flood or similar cataclysmic occurrence, act of
the public enemy, war, blockade, insurrection, riot, civil
disturbance, or restrictions or restraints imposed by law or
by rule, regulation or order of governmental authorities,
whether Federal, state or local. Economic hardship involving a
party shall not constitute Uncontrollable Circumstances.
Article 16
Representations and Warranties
Each of Nichimen, NKP and MMT represents and warrants to the others
that: (i) it has the corporate power and authority to enter into this Agreement
and the Related Agreements to which it is a party and perform the obligations
required to be performed by it hereunder and thereunder; (ii) the execution and
delivery by it of this Agreement and the Related Agreements to which it is a
party and the performance by it of the obligations required to be performed by
it hereunder and thereunder have been duly authorized by its Board of Directors
or other governing body and no consent of its stockholders is required,
provided, however, that approval of this Agreement by the Board of Directors of
Nichimen and NKP is pending and expected no later than November 30, 1996; (iii)
this Agreement represents, and the Related Agreements to which it is a party
when executed and delivered by it will represent, the valid and binding
obligation of it, enforceable against it in accordance with its terms; (iv) the
execution and delivery of this Agreement and each of the Related Agreements to
which it is a party by it and the performance by it of the obligations required
to be performed by it hereunder or thereunder will not conflict with, violate or
otherwise breach, or require a consent under, any agreement or instrument to
which it is a party or by which its property is bound; (v) it has and will
obtain and maintain all licenses, permits, approvals and authorizations
necessary in order to enable it to perform its obligations under this Agreement
and the Related Agreements; (vi) it is and shall continue to be in compliance
with all applicable laws and regulations which could, directly or indirectly,
affect its ability to perform its obligations under this Agreement or any of the
Related Agreements, including but not limited to all United States and Japanese
laws regarding import or export controls; and (vii) there is no action, suit,
proceeding or investigation pending, or to its knowledge, threatened before any
court, administrative agency or other regulatory body which could affect its
ability to perform its obligations under this
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Agreement or any of the Related Agreements or which could affect the JV or the
JV's business as presently contemplated. The foregoing representations and
warranties shall survive the execution and delivery of this Agreement and the
Related Agreements. The representations and warranties set forth in this Article
16 are not exclusive and are in addition to the other representations and
warranties made by the Partners in this Agreement and the Related Agreements.
Article 17
General
17.1. Expenses. Except as expressly set forth in this Agreement, all
expenses of the preparation, execution and consummation of this Agreement and
the Related Agreements and of the transactions contemplated hereby, including,
without limitation, attorneys', accountants and outside advisers' fees and
disbursements, shall be borne by the Partner incurring such expenses.
17.2. Notices. All notices, demands and other communications hereunder
shall be in writing or by written telecommunication, and shall be deemed to have
been duly given if delivered personally or if mailed by certified mail, return
receipt requested, postage prepaid or if sent by overnight courier or sent by
written telecommunication, as follows:
If to Nichimen to:
Nichimen Corporation
0-00, Xxxxx 0-Xxxxx
Xxxxxx-xx, Xxxxx, Xxxxx 108
Attention: Ituro Hashimoto,
Deputy Senior General Manager
Aircraft, Vessels & Industrial Machinery Division
If to NKP to:
NKK Plant Engineering Corporation
3 Benten-Cho, Tsurumi-ku
Yokohama, Japan 230
Attention: Kosaku Watando,
Director, R&D Department
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25
If to MMT:
Molten Metal Technology, Inc.
000-0 Xxxxxx Xxxx Xxxx
Xxxxxxx Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, III,
President and Chief Executive Officer
Xxxxx X. Xxxxx, Esq.,
Vice President and General Counsel
17.3. Entire Agreement. This Agreement (including the Exhibits hereto)
together with the Related Agreements contains the entire understanding of the
parties hereto and thereto, except as provided below supersedes all prior
agreements and understandings relating to the subject matter hereof and thereof,
including but not limited to the Letter of Intent dated February 15, 1996. This
Agreement shall not be amended except by a written instrument hereafter signed
by all of the parties hereto. No waiver of any provision of this Agreement shall
be effective unless evidenced by a written instrument signed by the waiving
party. The parties further acknowledge and agree that, in entering into this
Agreement and the Related Agreements, they have not in any way relied upon any
oral or written agreements, statements, promises, information, arrangements,
understandings, representations or warranties, express or implied, not
specifically set forth in this Agreement or the Related Agreements.
17.4. Governing Law, Etc. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
all rights and remedies being governed by such laws, without regard to its
conflict of laws rules, and, to the extent applicable, federal laws of the
United States of America.
*
17.5. Waiver of Jury Trial. Each of Nichimen, NKP and MMT hereby
irrevocably waives any rights that they may have to a trial by jury in respect
of any litigation based upon, or arising out of, this Agreement or any of the
Related Agreements or any course of conduct, course of dealing, statements or
actions of any of them relating thereto.
17.6. Waiver of Certain Damages. Each of the parties hereto to the
fullest extent permitted by law irrevocably waives any rights that they may have
to punitive, special, exemplary or consequential damages in respect of any
litigation based upon, or arising out of, this Agreement or any Related
Agreement or any course of conduct, course of dealing, statements or actions of
any of them relating thereto.
25
*Confidential treatment has been requested for this portion of Exhibit 10.46.
26
17.7. Sections and Section Headings. The headings of sections and
subsections are for reference only and shall not limit or control the meaning
thereof.
17.8. Assigns. This Agreement and the Related Agreements shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, successors and permitted assigns. Except as provided in this Section
17.8, neither this Agreement and the Related Agreements nor the obligations of
any party hereunder or thereunder shall be assignable or transferable by such
party without the prior written consent of the other party hereto or thereto.
Any Partner may assign its rights and obligations under this Agreement and the
Related Agreements to a wholly-owned Subsidiary of such Partner provided that:
(i) such Subsidiary agrees in writing to be bound by all of the provisions of
this Agreement and the Related Agreements as if it were a signatory thereto;
(ii) such Partner executes a Limited Guaranty guaranteeing the performance by
such Subsidiary of its obligations under this Agreement and the Related
Agreements; and (iii) such Partner provides written notice of such assignment
and a fully-executed copy of the Limited Guaranty to the JV and each of the
other Partners.
17.9. No Implied Rights or Remedies. Except as otherwise expressly
provided herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or to give any Person, except the Partners, any rights
or remedies under or by reason of this Agreement.
17.10. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
17.11. Dispute Resolution. All disputes or claims arising under or in
any way relating to this Agreement shall be subject to the Dispute Resolution
Agreement.
17.12. Construction; English Version Controlling. The language used in
this Agreement will be deemed to be the language chosen by the parties to
express their mutual intent, and no rule of strict construction will be applied
against any party. In case of any conflict between the English version and any
translated version of this Agreement or any Related Agreement, the English
version shall govern.
17.13. Severability. The invalidity or unenforceability of any
particular provision of this Agreement or any Related Agreement shall not affect
the other provisions hereof or thereof, and this Agreement shall be construed in
all respects as if such invalid or unenforceable provision was omitted.
17.14. Payments in U.S. Dollars. Unless otherwise expressly agreed in
writing by MMT, all payments to MMT from or in connection with the JV shall be
made in U.S. dollars.
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IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Agreement to be duly executed and delivered as a
sealed instrument as of the date and year first above written.
NICHIMEN CORPORATION
By: /s/ Shunro Itoh
------------------------------------
Name: Shunro Itoh
Title: Vice President
NKK PLANT ENGINEERING CORPORATION
By: /s/ Takeo Katsu
------------------------------------
Name: Takeo Katsu
Title: President
MOLTEN METAL TECHNOLOGY, INC.
By: /s/ Xxxxxxx X. Xxxxx, III
------------------------------------
Name: Xxxxxxx X. Xxxxx, III
Title: President and Chief Executive Officer
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EXHIBITS
Exhibit A - Form of Articles of Incorporation
Exhibit B - Form of CEP Plant Purchase and Sale Agreement
Exhibit C - Form of Dispute Resolution Agreement
Exhibit D - Illustration of Initial Business Paradigm
Exhibit E - Form of License Agreement
Exhibit F - Form of Limited Guaranty
29
Exhibit A to Joint Venture Master Agreement
ARTICLES OF INCORPORATION
CHAPTER 1. GENERAL PROVISIONS
ARTICLE 1. (CORPORATE NAME)
The name of the Company shall be Yugen Kaisha CEREX CEP JAPAN, and in
English it shall be Yugen Kaisha (LLP) CEREX CEP JAPAN.
ARTICLE 2. (PURPOSE)
The purpose of the Company shall be to engage in the following
businesses:
1. Import, export and domestic sale of industrial and general waste
processing and recycling plants for the processing and recycling of ash from the
incineration of municipal and industrial waste;
2. Construction, operation, maintenance and consulting services for
industrial and general waste processing and recycling plants for the processing
and recycling of ash from the incineration of municipal and industrial waste;
3. Processing and recycling of ash from the incineration of municipal and
industrial waste; and
4. Any business incidental to the foregoing.
ARTICLE 3. (LOCATION OF HEAD OFFICE)
The Company's head office shall be located at 0, Xxxxxx-xxx, Xxxxxxx-xx,
Xxxxxxxx, Xxxxxxxx Xxxxxxxxxx.
ARTICLE 3-2. (METHOD OF NOTICE)
Notices of the Company to all Members shall be sent by registered mail
to those Members residing in Japan and by registered express airmail, return
receipt requested, to those Members residing outside Japan.
30
ARTICLE 4. (TOTAL AMOUNT OF CAPITAL)
The total amount of the capital of the Company shall be (Y)51,000,000.
CHAPTER 2. MEMBERS AND CONTRIBUTIONS
ARTICLE 5. (NUMBERS OF SHARES AND AMOUNT THEREOF)
The capital amount of the Company shall be divided into 1,020 shares,
and the amount of one share shall be (Y)50,000.
ARTICLE 6. (NAMES, ADDRESSES AND CONTRIBUTIONS OF MEMBERS)
The names and addresses of the Members and their contributions shall be
as set forth below:
510 shares: Nichimen Corporation
0-0, Xxxxxxxxxxx 0-xxxxx, Xxxx-xx, Xxxxx
510 shares: NKK Plant Engineering Corporation
0-0, Xxx-xxx, Xxxxxxx-xx, Xxxxxxxx-xxx, Kanagawa Prefecture
CHAPTER 3. GENERAL MEETING OF MEMBERS
ARTICLE 7. (GENERAL MEETINGS OF MEMBERS)
General Meetings of the Company shall be the ordinary meetings and
special meetings. An ordinary meeting shall be held in April each year, and a
special meeting shall be held whenever necessary.
ARTICLE 8. (CONVOCATION OF GENERAL MEETINGS)
1. A General Meeting shall be convened by the Director who shall be
President.
2. In order to convene a General Meeting, a notice shall be given to each
Member at least fourteen (14) days prior to the date set for the meeting, unless
each Member waives such period.
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ARTICLE 8-2. (CONVOCATION BY MINORITY MEMBER)
A Member or Members holding 25% or more of the shares of the Company
shall be entitled to demand that the President convene the General Meeting, by
submitting a document stating the subject of the meeting and the reasons for
convocation.
ARTICLE 9. (CHAIRMAN)
The Chairman of the General Meeting shall be the Director who shall be
President, and in the event that he or she is unable to act, another Director
shall take his or her place.
ARTICLE 10. (RESOLUTION)
1. A resolution of a General Meeting shall be adopted by the majority of
the votes held by the Members present, unless otherwise provided by law,
ordinance or these Articles of Incorporation.
2. Adoption of any resolution on the following matters requires the
affirmative vote of all of the Members of the Company:
(i) increase in share capital;
(ii) approve transfer of shares by a Member;
(iii) transfer, lease or otherwise dispose of any part of the
Company's business;
(iv) assume any security interest or other encumbrance upon any of
the property of the Company;
(v) make any expenditures to acquire fixed assets or make any
capital expenditures or other investment involving a sum in
excess of(Y)_______;
(vi) owe any monetary obligations for borrowed money or otherwise
or guarantee any obligation in an amount in excess
of(Y)_______;
(vii) loan or make other extensions of credit to any other person;
(viii) redeem any contribution of the Company, or declare any
dividends thereon;
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(ix) approve remuneration, bonus or retirement allowances for any
member of the Board of Directors or Statutory Auditor;
(x) enter into any transaction of merger or consolidation, or
liquidate, wind-up or dissolve the Company; and
(xi) amend or supplement these Articles of Incorporation.
ARTICLE 11. (VOTING RIGHTS)
Each Member shall have one voting right for one share of the
contribution.
ARTICLE 12. (MINUTES)
The minutes shall be prepared for a General Meeting in order to keep a
record of matters discussed and the results thereof, and shall bear the names
and seals of the Chairman and all of the Directors present at the meeting.
CHAPTER 4. OFFICERS
ARTICLE 13. (NUMBER OF DIRECTORS AND STATUTORY AUDITOR)
The number of Directors of the Company shall be not more than four (4),
and the number of Statutory Auditors shall be one (1).
ARTICLE 14. (ELECTION OF DIRECTORS AND STATUTORY AUDITOR)
The Directors and Statutory Auditor of the Company shall be elected from
among the Members of the Company at a General Meeting of Members.
ARTICLE 15. (PRESIDENT AND REPRESENTATIVE DIRECTOR)
The Company shall have one (1) President, who shall be determined by
election by Directors from among them.
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ARTICLE 16. (REMUNERATION)
The Directors and Statutory Auditor shall not be paid any remuneration.
CHAPTER 5. ACCOUNTING
ARTICLE 17. (BUSINESS TERM)
The business term of the Company shall consist of two terms a year, from
March 1 to August 31 (first half) and from September 30 to the end of February
of the following year (second half).
ARTICLE 18. (DIVIDEND TO MEMBERS)
The dividend payable to the Members shall be paid to the Members as of
the close of each business term.
CHAPTER 6. SUPPLEMENTAL PROVISIONS
ARTICLE 19. (FIRST BUSINESS TERM)
The first business term of the Company shall be from the date of
incorporation of the Company to February 28, 1998.
ARTICLE 20. (OFFICERS AT THE TIME OF INCORPORATION)
The Officers at the time of the incorporation shall be as set forth
below:
Director: Ituro Hashimoto
Director: Xxxxxxxxx Xxxxxxxx
Representative-Director: Ituro Hashimoto
Statutory Auditor: Zukitaka Nakamura
ARTICLE 21. (GOVERNING LAW)
Any matter not provided in these Articles of Incorporation shall be
governed by the Yugen Kaisha Ho (Law of Yugen Kaisha) and other laws and
ordinances.
5
34
IN WITNESS WHEREOF, in order to incorporate Yugen Kaisha CEREX CEP
JAPAN, these Articles of Incorporation shall be prepared, with Members affixing
their names and seal impressions.
March 13, 1997
Member: Nichimen Corporation
Representative Director: You Watari (seal)
Member: NKK Plant Engineering Corporation
Representative Director: Takeo Katsu (seal)
(seal of Nichimen) (seal of NKK Plant)
6
35
Exhibit B to Joint Venture Master Agreement*
CEP PLANT PURCHASE AND SALE AGREEMENT
This is a CEP Plant Purchase and Sale Agreement, dated as of March 31,
1997 (the "Agreement"), between Yugen Kaisha (LLP) Cerex CEP Japan , a Japanese
close corporation (the "JV"), Nichimen Corporation, a Japanese corporation
("Nichimen"), and Molten Metal Technology, Inc. a Delaware corporation ("MMT").
WHEREAS, MMT, Nichimen and NKK Plant Engineering Corporation ("NKP")
have entered into a Joint Venture Master Agreement, dated as of October 30, 1996
(as in effect from time to time, the "JV Agreement"), pursuant to which MMT,
Nichimen and NKP formed the JV to commercialize MMT's proprietary processing
technology known as Catalytic Extraction Processing (or CEP) by marketing,
demonstrating, selling, operating and sublicensing CEP facilities in Japan for
the processing of MSW Incinerator Ash produced by municipal incinerators in
Japan and under certain circumstances for the processing of Industrial
Incinerator Ash produced from the incineration of Japanese industrial waste in
Japan;
WHEREAS, in the JV Agreement, MMT and Nichimen agreed to enter into, and
MMT, Nichimen and NKP agreed to cause the JV to enter into, this Agreement;
WHEREAS, MMT and the JV have entered into a License Agreement, dated as
of March 31, 1997 (as in effect from time to time, the "License Agreement"),
pursuant to which MMT licensed to the JV the exclusive right to sell, own and
operate CEP plants in Japan for the processing of MSW Incinerator Ash produced
by municipal incinerators in Japan and under certain circumstances for the
processing of Industrial Incinerator Ash produced from the incineration of
Japanese industrial waste in Japan;
WHEREAS, the JV has agreed to purchase the first CEP plant to be used in
Japan for the processing of MSW Incinerator Ash pursuant to the terms and
conditions hereof; and
WHEREAS, pursuant to the JV Agreement, Nichimen has agreed to act as the
sole importer of CEP Plants for the JV, and accordingly has agreed to act as the
importer of the CEP plant to be purchased by the JV hereunder.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth below and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, MMT, Nichimen and the
JV agree as follows:
1. Defined Terms
In addition to the defined terms found elsewhere in this Agreement, as
used in this Agreement the following terms shall have the following meanings:
"Construction Services" means the design, engineering, procurement and
construction services to be provided by MMT pursuant to this Agreement.
*Confidential treatment has been requested for certain portions of this Exhibit
10.46.
36
"Fixed Price" has the meaning set forth in Section 3.1.
"Transportation and Logistics Services" means the importing,
transportation, logistics and related services to be provided by Nichimen
pursuant to this Agreement.
"Installation and Operations Consulting Services" means the
installation, commissioning and start-up consulting services to be provided by
MMT pursuant to this Agreement after the Project has been delivered to the
Project Site.
"Japan Performance Test" means the Performance Test to be performed by
the JV in Japan pursuant to Section 5.4.
"MMT Services" means, collectively, Construction Services, Installation
and Operations Consulting Services and Training Services.
"MSW Incinerator Ash" means the ash by-product captured in the
gas-handling train of an incinerator after the incineration of Municipal Waste
(fly ash), and the ash by-product captured at the bottom of an incinerator
(bottom ash) after the incineration of Municipal Waste.
"Municipal Waste" means waste that is typically generated by households,
retail facilities or business offices and that is processed at municipal waste
incinerators in Japan.
"Project" means the CEP Plant to be designed, engineered and constructed
by MMT pursuant to this Agreement, as more fully described on Exhibit A hereto.
"Project Site" means the initial location of the Project in Japan.
"Related Agreements" means this Agreement, the JV Agreement, the License
Agreement, the Dispute Resolution Agreement, the Articles of Incorporation, and
any Limited Guaranty, each as amended from time to time, and any other agreement
between any of the JV, Nichimen, NKP or MMT relating to the JV which specifies
that it is a Related Agreement for purposes of this Agreement.
"Running Costs" means
*
"Training Services" means the training, technical support and related
services to be provided by MMT from time to time to personnel hired or engaged
by the JV to operate the Project, both in connection with the start-up of the
Project and its continued operation.
----------
*Confidential treatment has been requested for this portions of Exhibit 10.46.
2
37
"U.S. Performance Test" means the Performance Test to be performed by
MMT in the United States on the MX-1 demonstration CEP plant pursuant to Section
5.1.
Capitalized terms used without definition herein shall have the meanings
ascribed to such terms in the License Agreement.
2. Scope of Services
2.1 Pursuant to this Agreement, MMT shall:
(i) design, engineer and construct the Project until the
Project is ready for shipment from the United States
to Japan;
(ii) mount the Project components on skids which, to the
extent possible, have been designed to fit into
standard 20 foot and 40 foot containers, prepare the
Project for shipment in seaworthy export packing, and
load the Project on shipping trucks;
(ii) provide such Installation and Operations Consulting
Services as are necessary to make the Project
operational in Japan, to the mutual satisfaction of
the JV and MMT; and
(iii) provide such initial and ongoing Training Services as
are necessary, in MMT's sole judgment, to ensure that
the personnel hired or engaged by the JV to operate
the Project are technically proficient.
2.2 Pursuant to this Agreement, Nichimen shall provide all
necessary services and logistics for the importation of the Project into Japan,
including land and ocean transportation, marine insurance and customs clearance.
Prior to the time that the Project is loaded into containers for shipment,
Nichimen and NKP shall have the right to conduct a reasonable inspection of the
Project and the components thereof. From the time that Nichimen takes possession
of the Project for shipment until it is delivered to the Project Site, Nichimen
shall be responsible for any damage which may occur to the Project.
3. Price and Payment Terms
3.1 MMT shall perform the Construction Services for a fixed price of
seven million nine hundred thousand dollars ($7,900,000) (the "Fixed Price"),
free on truck "ex works," subject to changes in the Project or the scope of the
Construction Services pursuant to Article 4. The following amounts shall become
payable to MMT for the Construction Services in accordance with the following
schedule:
Anticipated
Event Payment Date
----- ------- -----------
3
38
Upon execution of this Agreement $1,975,000 November 1996
Upon start-up of the MX-1 demonstration
CEP plant being constructed by MMT in
Fall River, Massachusetts $1,580,000 May 1997
Upon completion of Performance Test on
MX-1 demonstration CEP plant $1,975,000 October 1997
Upon shipment of the Project from the U.S. $ 790,000 December 1997
Upon completion of Performance Test in Japan $1,580,000 March 1998
The dates set forth in the foregoing table are anticipated dates and MMT shall
not be deemed to be in breach of this Agreement or otherwise liable to the JV or
Nichimen for any costs incurred by either of them as a result of MMT's failure
to meet any such anticipated date, provided that if the Project is not made
available for shipment from the United States by January 31, 1998, the JV shall
have the right to negotiate a commercially reasonable penalty for any period of
delay after January 31, 1998. The foregoing provision shall not apply if any
such delay is the result of any action taken by MMT, with the consent of
Nichimen and NKP.
3.2 Installation and Operations Consulting Services and Training
Services shall be provided on the terms and at the costs set forth in Section
8.6 of the License Agreement.
3.3 Payment for Construction Services shall be made within two (2)
days of the date set forth on the payment schedule in Section 3.1. Payment for
Installation and Operations Consulting Services and Training Services are
fifteen (15) days from the date of MMT's invoice.
3.4 Nichimen shall perform the Transportation and Logistics Services for
a trading commission equal to *
4. Changes and Modifications
Upon mutual agreement of the JV and MMT, the scope of the Project or the
Construction Services may be changed. Any such change will be evidenced in a
written amendment to or other modification to this Agreement, signed by all of
the parties. If any such changes will cause the price of the Project to exceed
the Fixed Price, such amendment shall reflect the new Fixed Price for the
Project, as so changed.
5. Performance Tests
5.1 Xxxxxx 0000, XXX shall perform a performance test (the "U.S.
Performance Test") on the MX-1 demonstration CEP plant in the United States over
a seven (7) day period
----------
*Confidential treatment has been requested for this portions of Exhibit 10.46.
4
39
(the "U.S. Test Period") to determine whether the MX-1 meets the following
criteria (the "U.S. Performance Criteria"):
*
5.2 During the U.S. Test Period, MMT shall collect samples and
measurements to determine whether throughput, product specifications and utility
consumption figures are being met. If the performance of the MX-1 as determined
by the average of these measurements collected during the U.S. Test Period meets
the specifications set forth in the U.S. Performance Criteria, the U.S.
Performance Test shall be deemed satisfactorily completed, and MMT shall
thereupon give written notice to that effect to the JV, Nichimen and NKP. If the
JV agrees that the MX-1 has met the U.S. Performance Test, the JV shall execute
and return to MMT one copy of an acceptance letter to be provided by MMT. If the
JV does not agree that the MX-1 has met the U.S. Performance Test, the JV shall
notify MMT of such disagreement within ten (10) days from receipt of MMT's
notice, stating the specific reasons therefor. The JV shall be deemed to have
accepted the results of the U.S. Performance Test if the JV has failed to
respond to MMT's notice within the foregoing ten-day period.
5.3 If the performance of the MX-1 during the U.S. Performance Test
does not meet the U.S. Performance Criteria, MMT, at its own expense, shall make
such changes in the MX-1 as it deems necessary to make the MX-1 meet the U.S.
Performance Criteria. Thereafter, the U.S. Performance Test shall be repeated as
required until such time as the performance of the MX-1 has met the U.S.
Performance Criteria.
5.4 As soon as practicable after the Project has been installed at
the Project Site, the JV, with the assistance of NKP, shall perform a
performance test (the "Japan Performance Test") in Japan over a seven (7) day
period (the "Japan Test Period") to determine whether the Project meets the
following criteria (the "Japan Performance Criteria"):
*
----------
*Confidential treatment has been requested for this portions of Exhibit 10.46.
5
40
*
5.5 During the Japan Test Period, the JV shall collect samples and
measurements to determine whether throughput, product specifications and utility
consumption figures are being met. If the performance of the Project as
determined by the average of these measurements collected during the Japan Test
Period meets the specifications set forth in the Japan Performance Criteria, the
Japan Performance Test shall be deemed satisfactorily completed, and the JV
shall thereupon give written notice to that effect to MMT, Nichimen and NKP.
5.6
*
6. Equipment Warranty
6.1
*
6.2 The warranty set forth in Section 6.1 shall not apply to (i)
items designed to be consumed or subject to normal wear while undergoing normal
operation, including but not limited to refractories and tuyeres, or (ii) any
equipment which, after delivery, has been subject to abuse, accident,
alterations by anyone other than persons authorized by MMT, improper storage or
installation, misuse in its applications, improper maintenance or failure to
observe the operating instructions.
6.3 MMT's obligation under the warranty set forth in Section 6.1
shall be limited solely to repair or replacement of defective products. Before
MMT undertakes any obligation to
----------
*Confidential treatment has been requested for this portions of Exhibit 10.46.
6
41
remedy defects, the JV must give written notice of its claim within fifteen (15)
days after discovery within the warranty period. The decision on the remedy to
any claim will rest solely with MMT. In no event shall MMT's liability for any
and all losses and damages to the JV resulting from defective equipment exceed
the cost of repair and/or replacement of the defective parts. MMT shall use
attempt to cause the manufacturer of any repaired or replaced equipment to
provide an extended warranty for such equipment.
7. Limitations; Exclusive Remedy
EXCEPT AS EXPRESSLY SET FORTH IN ARTICLE 5 AND ARTICLE 6, MMT MAKES NO
WARRANTY, REPRESENTATION OR GUARANTEE OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING
BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
*
IN NO EVENT SHALL MMT BE LIABLE FOR INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING,
WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS OR DOWN TIME OF THE PROJECT.
8. Monitoring By MMT; Access to Project Site; Operation of Project
At any time and from time to time after the execution of this Agreement,
upon the request of MMT, the JV shall permit MMT to have access to the Project
and the Project Site for the purpose of (i) performing such MMT Services as are
required to be performed at the Project Site; (ii) observing the JV's operation
of the Project; (iii) ensuring that the JV is operating the Project properly and
within the safety parameters established by MMT and in conformance with all
applicable permits, laws and regulations; and (iv) any other reasonable purpose.
At all times, the JV shall use and operate the Project in a manner consistent
with the terms and conditions of the License Agreement.
9. Safety
With respect to any MMT Services performed by MMT on the Project Site,
the following provisions shall apply:
9.1 The safety of all persons employed or engaged by MMT who enter
upon the Project Site or other property of the JV for reasons relating to this
Agreement ("MMT's Agents"), shall be the sole responsibility of the JV, provided
that MMT shall take reasonable measures and precautions to prevent injuries to
or the death of any of MMT's Agents. MMT
----------
*Confidential treatment has been requested for this portions of Exhibit 10.46.
7
42
shall confine MMT's Agents to that portion of the Project Site or the JV's
premises where the MMT Services are to be performed.
9.2 The JV shall ensure that MMT's agents are provided with all
safeguards and warnings necessary to protect such persons against any conditions
on the Project Site or the JV's premises which could be dangerous and to prevent
accidents of any kind whenever MMT Services are being performed. The JV shall
provide MMT's Agents with any and all applicable safety rules, policies and
procedures in effect on the Project Site or the JV's premises.
10. Permits and Licenses
The JV shall secure and pay for all licenses and permits which may be
required to comply fully with all laws, ordinances, and regulations of the
proper public authorities in connection with the installation and operation of
the Project, and shall operate the Project in accordance with such licenses,
permits, laws, ordinances and regulations.
11. Indemnity
11.1 The JV agrees to indemnify, defend and save harmless MMT, its
affiliates, agents and subcontractors, and their respective officers, employees,
or agents (collectively, the "Indemnitees"), from and against all claims,
demands, actions, damages, actions, causes of action, losses, costs, expenses or
penalties (including costs of defense, settlement and reasonable attorney's
fees), including but not limited to death or bodily injury to any person,
destruction of property of whatever kind, or any contamination of or adverse
effect on the environment or any violation of environmental laws, regulations or
orders (collectively, "Losses"), which arise out of or in connection with (a)
the ownership, use or operation of the Project by the JV; (b) any breach by the
JV of any term or provision of this Agreement; and (c) the JV's failure to
comply with any applicable permit, license, law, rule, regulation, ordinance or
order governing the operation of the Project. In connection with any demands,
claims or any other legal proceedings covered by this Section 11.1, the JV shall
have the right to control the defense thereof, provided that MMT retains the
right to be represented, at its sole option, by attorneys of its own selection.
The exercise of this right to select its own attorneys will in no way detract
from or release the JV from its obligation to indemnify and hold MMT harmless
hereunder.
11.2
*
----------
*Confidential treatment has been requested for this portions of Exhibit 10.46.
8
43
12. Insurance
12.1 After delivery of the Project to the JV, the JV will maintain, at
its expense, property and primary and third party liability insurance for the
Project and such other insurance as shall be required by Japanese law or
agreement of the Board of Directors of the JV. The Board of Directors shall
determine the appropriate insurance to be maintained by the JV
12.2 All such insurance policies shall name MMT as an additional
insured. The JV agrees to furnish to MMT certificates of insurance, issued by
such insurance companies, which shall provide that the insurance company agrees
to notify MMT in writing ten (10) days in advance of any material change in, or
cancellation of, any of the insurance described in such certificates. The
obligation of the JV to provide the insurance hereinabove specified shall not
limit in any way the liability or obligations assumed by MMT elsewhere in this
Agreement.
13. Termination; Exclusive Remedy for Breach
13.1 MMT may terminate this Agreement in the event of a breach by the
JV of the provisions of Articles 3, 8, 9, or 12 hereof.
13.2
*
14. Miscellaneous
14.1. All notices, demands and other communications hereunder shall be
in writing or by written telecommunication, and shall be deemed to have been
duly given if delivered personally or if mailed by certified mail, return
receipt requested, postage prepaid or if sent by overnight courier or sent by
written telecommunication, as follows:
If to the JV to:
c/o NKK Plant Engineering Corporation
3 Benten-Cho, Tsurumi-ku
Yokohama, Japan 230
Attention: Kosaku Watando,
Director, R&D Department
----------
*Confidential treatment has been requested for this portions of Exhibit 10.46.
9
44
If to Nichimen to:
Nichimen Corporation
0-00, Xxxxx 0-Xxxxx
Xxxxxx-xx, Xxxxx, Xxxxx 108
Attention: Ituro Hashimoto,
Deputy Senior General Manager
Aircraft, Vessels & Industrial Machinery Division
If to MMT:
Molten Metal Technology, Inc.
000-0 Xxxxxx Xxxx Xxxx
Xxxxxxx Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, III,
President and Chief Executive Officer
Xxxxx X. Xxxxx, Esq.,
Vice President and General Counsel
14.2 This Agreement (including the Exhibits hereto) together with the
Related Agreements contains the entire understanding of the parties hereto and
thereto, except as provided below supersedes all prior agreements and
understandings relating to the subject matter hereof and thereof, including but
not limited to the Letter of Intent dated February 15, 1996. This Agreement
shall not be amended except by a written instrument hereafter signed by all of
the parties hereto. No waiver of any provision of this Agreement shall be
effective unless evidenced by a written instrument signed by the waiving party.
The parties further acknowledge and agree that, in entering into this Agreement
and the Related Agreements, they have not in any way relied upon any oral or
written agreements, statements, promises, information, arrangements,
understandings, representations or warranties, express or implied, not
specifically set forth in this Agreement or the Related Agreements.
14.3 This Agreement shall be governed by, and construed and enforced
in accordance with, the laws of the State of New York, all rights and remedies
being governed by such laws, without regard to its conflict of laws rules, and,
to the extent applicable, federal laws of the United States of America.
14.4 Each of the JV, Nichimen and MMT hereby irrevocably waives any
rights that they may have to a trial by jury in respect of any litigation based
upon, or arising out of, this agreement or any of the Related Agreements or any
course of conduct, course of dealing, statements or actions of any of them
relating thereto.
10
45
14.5 The headings of sections and subsections are for reference only
and shall not limit or control the meaning thereof.
14.6 This Agreement and the Related Agreements shall be binding upon
and inure to the benefit of the parties hereto and their respective heirs,
successors and permitted assigns. Neither this Agreement and the Related
Agreements nor the obligations of any party hereunder or thereunder shall be
assignable or transferable by such party without the prior written consent of
the other party hereto or thereto.
14.7 Except as otherwise expressly provided herein, nothing herein
expressed or implied is intended or shall be construed to confer upon or to give
any Person, except the Partners, any rights or remedies under or by reason of
this Agreement.
14.8 This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
14.9 All disputes or claims arising under or in any way relating to
this Agreement shall be subject to the Dispute Resolution Agreement.
14.10 The language used in this Agreement will be deemed to be the
language chosen by the parties to express their mutual intent, and no rule of
strict construction will be applied against any party. In case of any conflict
between the English version and any translated version of this Agreement or any
Related Agreement, the English version shall govern.
14.11 The invalidity or unenforceability of any particular provision of
this Agreement or any Related Agreement shall not affect the other provisions
hereof or thereof, and this Agreement shall be construed in all respects as if
such invalid or unenforceable provision was omitted.
14.12 The provisions of Article 5, 6, 8, 9, 10, and 11 of the License
Agreement are specifically incorporated into and made a part of this Agreement.
14.13 Unless otherwise expressly agreed in writing by MMT, all payments
to MMT under this Agreement shall be made in U.S. dollars.
14.14 MMT and the JV acknowledge that the terms of this Agreement,
including the performance test, warranty, limitation of liability and
indemnification provisions hereof, have been agreed upon solely in connection
with the sale of the Project contemplated by this Agreement. Such terms shall
not, unless the parties otherwise agree, constitute precedents for the terms of
agreements for sales of commercial CEP Plants to be made by MMT to the JV.
11
46
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
by their duly authorized representatives as of the date first set forth herein.
YUGEN KAISHA (LLP) CEREX CEP JAPAN
By:
---------------------------------------
Ituro Hashimoto
President-Director
NICHIMEN CORPORATION
By:
---------------------------------------
Name:
Title:
MOLTEN METAL TECHNOLOGY, INC.
By:
---------------------------------------
Xxxxxxx X. Xxxxx, III
President and Chief Executive Officer
12
47
Exhibit C to Joint Venture Master Agreement*
DISPUTE RESOLUTION AGREEMENT
THIS DISPUTE RESOLUTION AGREEMENT is made and entered into as of this
31st day of March, 1997 by and among Nichimen Corporation, a Japanese
corporation ("Nichimen"), NKK Plant Engineering Corporation, a Japanese
corporation ("NKP"), Molten Metal Technology, Inc., a Delaware corporation
("MMT"), and Yugen Kaisha (LLP) Cerex CEP Japan, a Japanese close corporation
(the "JV").
WHEREAS, Nichimen, NKP and MMT are parties to a Joint Venture Master
Agreement dated as of October 30, 1996 (as in effect from time to time, the "JV
Agreement"), pursuant to which they have agreed to form the JV in order to
commercialize CEP by marketing, demonstrating and operating CEP Plants, and
sublicensing CEP technology to Nichimen, NKP and appropriate third parties to
permit them to sell and operate CEP Plants, for the processing of MSW
Incinerator Ash produced from the incineration of Japanese municipal waste in
Japan; and
WHEREAS, in the JV Agreement, Nichimen, NKP and MMT agreed to enter
into, and to cause the JV to enter into, this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth below and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Defined Terms. Defined terms used in this Agreement without
definition have the meanings given to such terms in the JV Agreement. In
addition, the following defined terms have the following meanings:
"Agreement" means this Dispute Resolution Agreement, including the
preamble and premises and any exhibits and schedules hereto, as in effect from
time to time.
"Covered Disputes" has the meaning set forth in Section 2.
"Designated Representatives" has the meaning set forth in Section 3.3.
"Mediator" has the meaning set forth in Section 3.4.
"Notice Date" has the meaning set forth in Section 3.1.
"Noticed Dispute" has the meaning set forth in Section 3.1.
"Permitted Litigation" has the meaning set forth in Section 3.2.
"Related Agreements" means this Agreement, the JV Agreement, the
License Agreement, the Charter Documents, the CEP Plant Agreement, and any
Limited Guaranty, each as amended
* Confidential treatment has been requested for certain portions of this Exhibit
10.46.
48
from time to time, and any other agreement between any of the JV, Nichimen, NKP
or MMT relating to the JV which specifies that it is a Related Agreement for
purposes of this Agreement.
"Requesting Party" has the meaning set forth in Section 3.1.
"Settlement Information" has the meaning set forth in Section 3.5.1.
2. Covered Disputes. The dispute resolution procedures provided for in
this Agreement shall apply to all disputes which may arise among any of the
parties hereto with regard to any aspect of the interpretation or performance of
any of the Related Agreements, or any aspect of or circumstance relating to the
negotiations, preparation, execution of any of the Related Agreements or any
aspect of the relationship contemplated by the JV Agreement. Such disputes
subject to this Agreement are referred to herein as "Covered Disputes."
3. Dispute Resolution Procedures.
3.1. Notice and Invocation of Mediation Procedures. The procedures
provided for by this Agreement shall not apply to any Covered Dispute unless and
until either the JV, Nichimen, NKP or MMT (a "Requesting Party") shall have
given written notice invoking the mediation procedures contained herein to each
other party to the Covered Dispute. Such notice shall specify in reasonable
detail the dispute to which it is intended to apply. Such dispute is hereinafter
referred to as a "Noticed Dispute." The effective date of delivery of such
notice is referred to herein as the "Notice Date."
3.2. Stay of Litigation Upon Election of Mediation; Tolling. (a) Each
of the parties hereto agrees that it will not commence any litigation relating
to any Covered Dispute unless prior thereto such party has engaged in the
mediation procedures contemplated by this Section 3 with respect to such Covered
Dispute, except that any party shall be entitled to exercise any remedy in
connection with such Covered Dispute if such party reasonably believes that a
statute of limitations or other similar statute or doctrine will bar its claim
or claims unless a judicial proceeding is commenced or that its rights cannot be
protected other than through immediate injunctive or equitable relief
(collectively, "Permitted Litigation").
(b) In the event that the Requesting Party delivers a notice of a
Noticed Dispute, each party hereto shall refrain from commencing any litigation
relating to the Noticed Dispute against any other party to this Agreement,
except for any Permitted Litigation. Such stay shall remain in effect until the
earlier of (i) sixty (60) days after the Notice Date, (ii) completion of the
dispute resolution process without settlement of the Noticed Dispute, or (iii)
written agreement by all parties to discontinue the dispute resolution
procedures. If any litigation (other than Permitted Litigation) is pending at
the time of the notice, the parties shall each take appropriate steps, including
all necessary filings with the court having jurisdiction over such litigation to
suspend such litigation for the period of the stay provided for by this Section
3.2. During the pendency of the stay of litigation provided for in this Section
3.2, all statutes of limitation which may be applicable to the Noticed Dispute
shall be tolled as between or among the parties hereto.
2
49
3.3. Negotiation. Within five (5) days after the Notice Date, each
party to such Noticed Dispute shall designate in writing to the other parties
the name of one of its senior executive officers who shall be its "Designated
Representative" in the dispute resolution proceedings. Designation by any party
of its Designated Representative shall constitute a representation by such party
that its Designated Representative has full power and authority to bind such
party to any compromise of the Noticed Dispute or any release of rights in
connection therewith. The Designated Representatives shall negotiate in good
faith for ten (10) days to resolve such Noticed Dispute.
3.4. Third Party Mediator. In the event that the Designated
Representatives are unable to resolve the Noticed Dispute, then within twenty
(20) days after the Notice Date, the parties shall mutually appoint a neutral
third party mediator (the "Mediator"). In selecting the Mediator, the parties
shall select someone with substantial experience in corporate and partnership
legal matters. If the parties are unable to agree upon the Mediator by the 20th
day following the Notice Date, any party may obtain the appointment of the
Mediator by Endispute/J.A.M.S. or its successor (or if such organization shall
no longer exist or shall refuse to act) by any court of competent jurisdiction.
Thereafter the parties to such Noticed Dispute shall use good faith efforts for
thirty (30) days to mediate the Noticed Dispute using the services of the
Mediator. In the event the parties have not resolved the Noticed Dispute within
such thirty (30) day period, the dispute resolution procedures shall be deemed
completed, and any litigation stay shall terminate.
3.5. Confidentiality; Use in Litigation.
3.5.1. All statements, disclosures, submissions, and other
communications made by a party in the course of mediation of a Noticed Dispute
(collectively, "Settlement Information") shall be confidential information and
shall not be disclosed to any Person other than the employees, officers, counsel
and consultants directly involved in the Noticed Dispute, and each party in
receipt of Settlement Information shall require all persons to whom it is
permitted to disclose Settlement Information to make a similar nondisclosure
commitment for the benefit of and enforceable by the party providing Settlement
Information. Such nondisclosure obligation shall remain in effect for a period
of six years from the date of disclosure.
3.5.2. Prior to commencing the mediation process, the parties
shall require the Mediator to sign a confidentiality agreement in which he or
she commits, for the benefit of and on a basis which is enforceable by each
party and its respective Affiliates, that he or she will hold the Settlement
Information confidential and not disclose it to any party other than the parties
and their respective Affiliates, counsel and advisors and agents involved in the
Noticed Dispute except under order of disclosure by a court of competent
jurisdiction or pursuant to a written authorization signed by the party or
parties providing the Settlement Information which is to be disclosed. Each
party agrees that it will not and it will not cause or permit any of its
Affiliates to seek a court order requiring testimony in any court or other
proceeding by the Mediator, with respect to any matter.
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50
3.5.3. All Settlement Information shall be deemed to be statements
made in the furtherance of settlement negotiations and, as such, shall not be
admissible in any litigation or proceeding; provided, that, no party shall be
prevented from obtaining discovery concerning or offering evidence of facts
disclosed in Settlement Information from sources other than disclosures made in
mediation, to the extent otherwise permissible by law.
4. Fees and Expenses of Mediator. The fees and expenses of the
Mediator shall be divided equally among Nichimen, NKP and MMT.
5. Scope of Obligation; Specific Performance. The parties are
agreeing to utilize the settlement procedures outlined above in a good faith
effort to provide for a speedy and economical means of resolving disputes.
However, the parties agree that no party shall be in default or in breach hereof
for failure to adhere to any of the procedures outlined above except that (i)
compliance with the procedures hereof in full when and as required shall be a
condition precedent to the other party's obligation to continue its
participation in the negotiation and mediation procedures and (ii) either party
may obtain an order of specific performance in respect of the other party's
obligation under Sections 3.2, 3.5.1, 3.5.2, and 3.5.3 and an award of money
damages in respect of Section 4. In addition, nothing herein shall be construed
to require any party to agree to any particular settlement of a dispute. It is
the intention of the parties that this Agreement be purely procedural in nature.
Its purpose is to ensure that the possibilities of settlement are fully explored
by the parties with the aid of a neutral mediator before either party resorts to
or continues the prosecution of litigation.
6.
*
7. Miscellaneous.
7.1. Entire Agreement. This Agreement together with the Related
Agreements constitutes the entire agreement between the parties with respect to
the subject matter hereof and thereof and merges and replaces all prior
negotiations, discussions, offers, representations, warranties, covenants, and
agreements of the parties in respect of such subject matter.
7.2. Amendment; Waiver. This Agreement may be amended only by a written
instrument signed by all parties. The failure of any party to insist on one or
more occasions upon strict performance by the other party of any its obligations
hereunder shall not constitute a waiver, release, or amendment of such party's
right to insist upon strict performance of such obligation on future occasions.
--------
* Confidential treatment has been requested for this portion of Exhibit 10.46.
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51
7.3. Notices. Notices given to either of the parties pursuant to, or in
connection with, this Agreement shall be effective upon delivery and shall be
transmitted by manual delivery, certified or registered mail with return receipt
requested or express courier at the address set forth below in respect of each
party:
If to Nichimen to:
Nichimen Corporation
0-00, Xxxxx 0-Xxxxx
Xxxxxx-xx, Xxxxx, Xxxxx 108
Attention: Ituro Hashimoto,
Deputy Senior General Manager
Aircraft, Vessels & Industrial Machinery Division
If to NKP to:
NKK Plant Engineering Corporation
3 Benten-Cho, Tsurumi-ku
Yokohama, Japan 230
Attention: Kosaku Watando,
Director, R&D Department
If to MMT to:
Molten Metal Technology, Inc.
000-0 Xxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, III, President
and Chief Executive Officer
Xxxxx X. Xxxxx, Esq., Vice President
and General Counsel\
If to the JV to:
c/o NKK Plant Engineering Corporation
3 Benten-Cho, Tsurumi-ku
Yokohama, Japan 230
Attention: Kosaku Watando,
Director, R&D Department
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52
7.4. Governing Law, Etc. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
all rights and remedies being governed by such laws, without regard to its
conflict of laws rules. MMT hereby agrees that any action brought by it against
Nichimen, NKP or the JV shall be brought in Tokyo, Japan. Each of Nichimen, NKP
and the JV hereby agrees that any action brought by it against MMT shall be
brought in New York, New York.
7.5. Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY RIGHTS THAT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED UPON, OR ARISING OUT OF, THIS AGREEMENT OR ANY OF THE
RELATED AGREEMENTS OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS OR
ACTIONS OR ANY OF THEM RELATING THERETO.
7.6. Waiver of Certain Damages. EACH OF THE PARTIES HERETO TO THE
FULLEST EXTENT PERMITTED BY LAW IRREVOCABLY WAIVES ANY RIGHTS THAT IT MAY HAVE
TO PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES IN RESPECT OF ANY
LITIGATION BASED UPON, OR ARISING OUT OF, THIS AGREEMENT OR ANY COURSE OF
CONDUCT, COURSE OF DEALING, STATEMENTS OR ACTIONS OF ANY OF THEM RELATING
THERETO.
7.7. Sections and Section Headings. The headings of sections and
subsections are for reference only and shall not limit or control the meaning
thereof.
7.8. Assigns. This Agreement and the Related Agreements shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, successors and permitted assigns. Neither this Agreement and the Related
Agreements nor the obligations of any party hereunder or thereunder shall be
assignable or transferable by such party without the prior written consent of
the other party hereto.
7.9. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.10 Construction; English Version Controlling. The language used in
this Agreement will be deemed to be the language chosen by the parties to
express their mutual intent, and no rule of strict construction will be applied
against any party. In case of any conflict between the English version and any
translated version of this Agreement, the English version shall govern.
7.11 Severability. The invalidity or unenforceability of any particular
provision of this Agreement or any Related Agreement shall not affect the other
provisions hereof or thereof, and this Agreement shall be construed in all
respects as if such invalid or unenforceable provision was omitted.
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53
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first set forth above.
NICHIMEN CORPORATION
By: ______________________________________________
Ituro Hashimoto
Deputy Senior General Manager
Aircraft, Vessels & Industrial Machinery
Division
NKK PLANT ENGINEERING CORPORATION
By: ______________________________________________
Kosaku Watando
Director, R&D Department
MOLTEN METAL TECHNOLOGY, INC.
By: ______________________________________________
Xxxxxxx X. Xxxxx, III
President and Chief Executive Officer
YUGEN KAISHA (LLP) CEREX CEP JAPAN
By: ______________________________________________
Ituro Hashimoto
President-Director
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Exhibit D to Joint Venture
Master Agreement
INITIAL BUSINESS PARADIGM
(JAPAN) (USA)
___(End User Contract)__ __(Sub-license)___ ____________________________________(License)______________________
| || | | |
____|___________ ___||_______ _______|____|___ __________________ ______|_________
Client Contractor J/V Importer (Nichimen) Supplier (MMT)
________________ __________ ________________ __________________ ________________
Local Government________ NKP _____CEP Plant (Hard)_______ CEP Plant (Hard)_______________________________CEP Plant (Hard)
Private Sector Nichimen | CEP Plant (Soft) CEP Plant (Soft) | CEP Plant (Soft)
________________ __________ | ________________ __________________ | _________________
| |
| (Free on Truck Ex Works) | (FOB MMT's Factory)
| | (Free on Truck)
| |
| __________________ |
| NKP ____________|_________________
| __________________ Inland Transportation (JPN/USA)
| Engineering (Part) Ocean Freight/shipping Charge
|__ Civil & Building Marine Insurance
Installation Import Duty, etc. (if any)
__________________ _______________________________
55
Exhibit E to Joint Venture Master Agreement*
LICENSE AGREEMENT
This is a License Agreement, dated as of March 31, 1997 (the
"Agreement"), by and between Molten Metal Technology, Inc., a Delaware
corporation ("MMT"), and Yugen Kaisha (LLP) Cerex CEP Japan, a Japanese close
corporation (the "JV").
WHEREAS, MMT, Nichimen Corporation ("Nichimen"), and NKK Plant
Engineering Corporation ("NKP") have entered into a Joint Venture Master
Agreement, dated as of October 30, 1996 (as in effect from time to time, the "JV
Agreement"), pursuant to which MMT, Nichimen and NKP formed the JV to
commercialize MMT's proprietary processing technology known as Catalytic
Extraction Processing (or CEP) by marketing, demonstrating, selling, operating
and sublicensing CEP facilities in Japan for the processing of MSW Incinerator
Ash produced by municipal incinerators in Japan and under certain circumstances
for the processing of Industrial Incinerator Ash produced from the incineration
of Japanese industrial waste in Japan;
WHEREAS, in the JV Agreement, MMT agreed to enter into, and MMT,
Nichimen and NKP agreed to cause the JV to enter into, this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
agreements set forth below and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, MMT and the JV agree
as follows:
Article 1
Defined Terms
In addition to the defined terms found elsewhere in this Agreement or
the JV Agreement, as used in this Agreement the following terms shall have the
following meanings:
"Advisors" means, with respect to any Person, any of such Person's
attorneys, accountants, lenders or consultants.
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by or under common control with, such Person. As used in
this Agreement, "control" (including, with its correlative meanings, "controlled
by" and "under common control with") shall mean possession, directly or
indirectly, of power to direct or cause the direction of management or policies
(whether through ownership of securities or partnership or other ownership
interests, by contract or otherwise).
"Board of Directors" means the board of directors maintained pursuant
to the JV Agreement.
"Catalytic Extraction Processing" or "CEP" means the processes, methods
and means and equipment, apparatus and systems (including all intellectual and
intangible and tangible property
* Confidential treatment has been requested for certain portions of this Exhibit
10.46.
56
associated therewith and including all aspects of accepting Feedstocks,
reactions within a CEP Plant, and handling Recovered Resources) directed to the
processing of Feedstocks by introducing the Feedstocks to a processing vessel
containing liquefied metal.
"CEP Plant" means the plant, equipment and other facilities necessary
to perform, operate and maintain CEP on a commercial basis (or, in the case of
any so-called "demonstration" CEP Plant, on the basis generally provided in the
applicable demonstration program).
"Confidential Information" means, as applicable, JV Confidential
Information and MMT Confidential Information.
"Dispute Resolution Agreement" means the Dispute Resolution Agreement
dated as of the date hereof between MMT, Nichimen, NKP and the JV, as in effect
from time to time.
"Employee Non-Disclosure Agreement" means an employee non-disclosure
and invention agreement in the form attached hereto as Annex A or in such other
form as is approved from time to time by the Board of Directors.
"Exclusive Market" means the processing in Japan of MSW Incinerator Ash
produced from the incineration in Japan of Municipal Waste generated in Japan.
"Failure Notice" has the meaning set forth in Section 5.6.
"Feedstocks" means the wastes, industrial by-products and other
materials to be processed by a CEP Plant.
"Gross Revenues" means the JV's revenues in any fiscal year.
"Improvements" shall mean any improvements, developments, updates,
upgrades, enhancements, additions, revisions, corrections, fixes and other
modifications to the Licensed Property as it then exists that MMT or the JV may
acquire, discover, invent, originate, conceive or have a right to develop or
manufacture, whether or not the same is patentable, commercially useful or
reducible to writing or practice.
"Industrial Incinerator Ash" means the ash by-products remaining after
the incineration of Industrial Waste, other than any ash by-products which are
radioactive or have been produced from the incineration of radioactive
industrial waste.
"Industrial Waste" means waste that is generated by industrial
facilities and that is processed at industrial waste incinerators in Japan.
"Infringements" has the meaning set forth in Section 9.1.
"Intellectual Property" means all patents, inventions, patent
applications, patent rights, trademarks, trademark registrations, trade names,
brand names, all other names and slogans
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embodying business or product goodwill (or both), copyright registrations,
copyrights (including those in computer programs, software, including all source
code and object code, development documentation, programming, drawings,
specifications and data), software, trade secrets, know-how (including operating
procedures, scheduling procedures and process regimes), mask works and
industrial designs, whether or not subject to statutory registration or
protection.
"JV Confidential Information" means any confidential or proprietary
information of any type of the JV.
"JV Term" means the period of time that the JV is in existence pursuant
to the JV Agreement.
"Licensed Copyrights" means any and all copyright protection of MMT
covering any of the Licensed Software Programs, the Licensed Know-How or any
Improvements thereto.
"Licensed Know-How" means any information possessed as of the date
hereof by MMT or hereafter acquired by, or, subject to the restrictions of
Section 2.2, licensed to MMT, or developed by MMT at any time during the term of
this Agreement and necessary for the use of CEP in the Market, whether or not
considered proprietary and whether or not subject to statutory registration or
protection, including, without limitation, inventions disclosed by the Licensed
Patent Applications, invention records, experimental and other engineering
reports, CEP Plant designs, production specifications, raw material
specifications, quality control reports and specifications, drawings,
photographs, models, tools and parts, manufacturing and production techniques,
processes and methods.
"Licensed Patent Applications" means the Japanese patent applications
listed on Annex B hereto and any Japanese patent applications filed or acquired
by or, subject to the restrictions set forth in Section 2.2, licensed to MMT,
during the JV Term, which are necessary for the use of CEP in the Market.
"Licensed Patents" means the Japanese patents listed on Annex C hereto
and any Japanese patents granted to, acquired by, or, subject to the
restrictions set forth in Section 2.2, licensed to MMT, during the JV Term,
which are necessary for the use of CEP in the Market.
"Licensed Property" means the Licensed Patents, the Licensed Patent
Applications, the Licensed Trademarks, the Licensed Software Programs, the
Licensed Copyrights and the Licensed Know-How.
"Licensed Software Programs" means any computer programs the copyrights
to which are currently owned by MMT or, subject to the restrictions set forth in
Section 2.2, acquired by or licensed to MMT during the JV Term, which are
necessary for the use of CEP in the Market.
"Licensed Trademarks" means the Japanese Trademarks listed on Annex D
hereto and any Japanese Trademarks developed or acquired by or, subject to the
restrictions set forth in
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58
Section 2.2, licensed to MMT, during the JV Term, which are necessary for the
use of CEP in the Market.
"Market" means the Exclusive Market and the Non-Exclusive Market,
collectively.
"Market Feedstocks" means MSW Incinerator Ash produced from the
incineration in Japan of Municipal Waste generated in Japan and under certain
circumstances Industrial Incinerator Ash produced from the incineration in Japan
of Industrial Waste generated in Japan.
"MMT Confidential Information" means any confidential or proprietary
information of any type of MMT or furnished by MMT, including but not limited to
any confidential or proprietary portion of the Licensed Property.
"MMT Infringement Claim" has the meaning set forth in Section 9.2.
"MSW Incinerator Ash" means the ash by-product captured in the
gas-handling train of an incinerator after the incineration of Municipal Waste
(fly ash), and the ash by-product captured at the bottom of an incinerator
(bottom ash) after the incineration of Municipal Waste.
"Municipal Waste" means waste that is typically generated by
households, retail facilities or business offices and that is processed at
municipal waste incinerators in Japan.
"Net Income" means the net income of the JV determined in accordance
with generally accepted accounting principles as applied in Japan, including
depreciation and amortization expense, but excluding any taxes paid or accrued
during the relevant period.
"Non-Exclusive Market" means the processing in Japan of Industrial
Incinerator Ash produced from the incineration of Industrial Waste generated in
Japan.
"Permitted Feedstocks" means MSW Incinerator Ash and Industrial
Incinerator Ash and other Feedstocks added as "Permitted Feedstocks" to the
relationship contemplated by this Agreement by the Board of Directors.
"Person" means any individual, partnership, corporation, association,
trust, joint venture, limited liability company, unincorporated organization and
any government, governmental department or agency or political subdivision
thereof.
"Quality Standard" has the meaning set forth in Section 5.6.
"Recovered Resources" means the elements and compounds produced by a
CEP Plant (whether or not produced through the use of reactants) that are
suitable for use or sale.
"Subsidiary" means a corporation, company or other entity:
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59
(i) more than fifty percent (50%) of whose outstanding
shares or securities (representing the right to vote
for the election of directors or other managing
authority) are, now or hereafter, owned or
controlled, directly or indirectly, by a party
hereto, but such corporation, company or other entity
shall be deemed to be a Subsidiary only so long as
such ownership or control exists; or
(ii) which does not have outstanding shares or securities,
as may be the case in a partnership, joint venture or
unincorporated association, but more than fifty
percent (50%) of whose ownership interests
representing the right to make the decisions for such
corporation, company or other entity is now or
hereafter, owned or controlled, directly or
indirectly, by a party hereto, but such corporation,
company or other entity shall be deemed to be a
Subsidiary only so long as such ownership or control
exists.
"Trademarks" shall mean:
(i) all of the trademarks, service marks, trade names,
designs, logos, indicia, corporate names, company
names, business names, fictitious names, trade
styles, elements of package or trade dress, and/or
other source and/or other service identifiers and
general intangibles of like nature which are now or
in the future adopted, acquired, owned, held and/or
used by MMT in its business and which are necessary
for the use of CEP in the Market; and
(ii) all past, present or future federal, state, local and
foreign registrations or recordations of any of the
foregoing enumerated in clause (i), all renewals and
extensions of such registrations or recordations, all
past, present and future applications for any such
registrations or recordations of any of the foregoing
enumerated in clause (i) (and any such registrations
or recordations thereof upon approval of such
applications), including such recordings,
registrations or applications set forth on Annex D
hereto.
"Uncontrollable Circumstances" has the meaning set forth in Article 11.
"Voting Securities" mean, with respect to any Person, all securities
issued by such Person having the ordinary power to vote in the election of
directors of such Person, other than securities having such power only upon the
occurrence of a default or any other extraordinary contingency.
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Article 2
Technology License; Certain Related Matters
2.1. Grant of License.
(a) Subject to the terms and conditions of this Agreement, MMT
hereby grants to the JV:
(i) a non-transferable royalty-bearing exclusive license
under the Licensed Property (other than the Licensed
Trademarks) to sell, own, lease, rent, operate,
install and maintain CEP Plants located anywhere in
Japan that process solely MSW Incinerator Ash;
(ii) a non-transferable royalty-bearing exclusive license
to sublicense the Licensed Property, subject to and
in accordance with the requirements of Article 7, to
Nichimen, NKP and appropriate third parties in order
to permit them to sell, own, operate, install and
maintain CEP Plants located anywhere in Japan that
process solely MSW Incinerator Ash; and
(iii) a non-transferable royalty-bearing non-exclusive
license to use the Licensed Trademarks in connection
with the activities permitted under clause (i) or
(ii) above.
(b) Subject to the terms and conditions of this Agreement, MMT
hereby grants to the JV:
(i) a non-transferable royalty-bearing non-exclusive
license under the Licensed Property (other than the
Licensed Trademarks) to sell, own, lease, rent,
operate, install and maintain CEP Plants located
anywhere in Japan that process Industrial Incinerator
Ash;
(ii) a non-transferable royalty-bearing non-exclusive
license to sublicense the Licensed Property, subject
to and in accordance with the requirements of Article
7, to Nichimen, NKP and appropriate third parties in
order to permit them to sell, own, operate, install
and maintain CEP Plants located anywhere in Japan
that process Industrial Incinerator Ash; and
(iii) a non-transferable royalty-bearing non-exclusive
license to use the Licensed Trademarks in connection
with activities permitted under clause (i) or (ii)
above.
The licenses granted to the JV pursuant to this paragraph (b)
shall be applicable only where sales of CEP Plants are made to
owners or operators of facilities
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which process both MSW Incinerator Ash and Industrial
Incinerator Ash, provided that such facilities process
predominantly MSW Incinerator Ash.
(c) In the event that the JV desires to sell a CEP Plant to an
owner or operator of a facility which does not process
predominantly MSW Incinerator Ash, the JV shall provide MMT
with a description of the Feedstocks which would be processed
by such CEP Plant and such other information as MMT may
request in order to permit it to quote a price and the terms
of sale for such CEP Plant. The JV acknowledges that such
price may include additional engineering and design work
necessary for MMT to deliver such CEP Plant. MMT shall have
the option, on a case-by-case basis, to agree to the sale of
any such CEP Plant. To the extent that MMT agrees to sell any
such CEP Plant to the JV, the licenses granted to the JV in
paragraph (b) shall be applicable to such sale.
(d) The licenses granted pursuant to this Section 2.1 shall not
permit the JV or its sublicensees to process any Feedstocks at
any CEP Plant that are not Market Feedstocks or to sell or
operate any CEP Plant except in accordance with the provisions
of this Agreement and the Related Agreements.
2.2. Third Party Limitations on License Grants. The licenses
granted by MMT pursuant to Section 2.1 above, insofar as they relate to
technology, property or rights that have been or are in the future developed
with or acquired from any third party, are or may become subject to any
applicable restrictions and consents relating to such technology, property or
rights under any license or similar agreement to which MMT is or may in the
future become a party. In the event that any future license or other agreement
imposes restrictions that may apply to the transactions contemplated by this
Agreement, MMT will make reasonable efforts to obtain license rights as
contemplated by this Agreement for the JV. If MMT is unable to so obtain such
rights, it will cooperate to make available to the JV such rights as the third
party is willing to grant to or for the JV.
Article 3
Exclusivity; Retention of Rights
3.1. Exclusive Market Obligation of MMT. MMT agrees that, during
the term of this Agreement, except pursuant to this Agreement and the Related
Agreements it shall not either directly or indirectly (whether through its
Affiliates, as a shareholder, partner, or consultant) own or operate any CEP
Plant that processes MSW Incinerator Ash in Japan or sell or license any CEP
Plant pursuant to sale or license terms which permit such CEP Plant to process
MSW Incinerator Ash in Japan.
3.2. Retention of Rights by MMT. Notwithstanding anything in this
Agreement to the contrary, MMT shall have no obligation to offer the JV any
rights, including but not limited to rights of expansion under Section 3.2,
outside the Exclusive Market, and shall be free to enter into any arrangements
with respect to the Non-Exclusive Market or any markets outside the
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62
Exclusive Market as MMT shall deem appropriate in its sole discretion. If during
any three (3) one-year periods commencing January 1, 1998 the JV does not sell
any CEP Plants pursuant to the non-exclusive licenses granted under Sections
2.1(b) and (c) above, then MMT may terminate such licenses. The purchase of a
CEP Plant shall be evidenced by the execution of binding contracts between
Nichimen, NKP or other contractor of the JV and a customer for the purchase of
such CEP Plant, on the one hand, and between the JV and MMT for the design and
construction of such CEP Plant, on the other hand.
Article 4
License Fees and Royalties; Interest; Reports
4.1. Market Rights License Fee. As partial consideration for the
licenses granted hereunder, the JV shall pay to MMT a market rights license fee
(the "Market Rights License Fee") which will be due and payable on an annual
basis in an amount equal to fifty percent (50%) of the JV's Net Income for the
preceding year until the JV has paid to MMT a total of twelve million five
hundred thousand dollars (U.S.$12,500,000). The JV shall expense when paid the
Market Rights License Fee paid to MMT. The JV shall not be required to pay the
Market Rights License Fee in any year in which the JV does not have Net Income.
The Market Rights License Fee shall be paid within 30 days after the completion
of the JV's financial statements for the preceding year, but in no event later
than ninety (90) days after the end of the JV's fiscal year.
4.2. Technology Fees. As partial consideration for the licenses
granted hereunder, the JV shall pay to MMT an ongoing technology fee (the
"Technology Fee") equal to two percent (2%) of the JV's Gross Revenues from the
sale of inside battery limits equipment of CEP Plants and spare parts for CEP
Plants for each one year period of the JV's operations commencing January 1,
1997. The Technology Fee shall be paid in U.S. dollars within 30 days after the
completion of the JV's financial statements for the preceding year, but in no
event later than ninety (90) days after the end of the JV's fiscal year.
4.3. Reports and Payments.
(a) Within twenty (20) days after completion of the JV's financial
statements for any year, but in no event later than March 31
of the following year, the JV shall deliver to MMT copies of
the financial statements for such year, together with a
certificate of the Partner appointed to keep the JV's books
and records or the General Manager, if any (the "Fee
Certificate") setting forth in reasonable detail (i) the Gross
Revenues for such year, (ii) the amount of Gross Revenues
attributable to sales of inside battery limits equipment of
CEP Plants and spare parts for CEP Plants, (iii) the JV's Net
Income for such year, (iv) a calculation of the Market Rights
License Fee due with respect to such year, and (v) a
calculation of Technology Fee due with respect to such year.
The JV shall permit MMT and its authorized Advisors to
inspect, on a confidential basis, the books and records of the
JV in order to verify the accuracy of the Fee Certificate.
Nichimen and NKP, and their respective authorized Advisors,
also will have the right to inspect,
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63
on a confidential basis, the books and records of the JV in
order to verify the accuracy of the payments of the Market
Rights License Fees and the Technology Fees to MMT.
(b) Payments of Market Rights License Fees and Technology Fees
shall be made by wire transfer of immediately available funds
to an account designated by MMT for such purpose. Any such
payment and the acceptance thereof shall be without prejudice
to the rights of MMT or the JV under paragraph (c) below. For
the purposes of payments to be made under this Article 4, the
conversion rate of Japanese yen into U.S. dollars shall be
calculated based on the average of the exchange rate quoted in
the Wall Street Journal over the period from the last day of
the JV's applicable fiscal year until the day preceding the
date on which any such payment is made.
(c) If MMT disputes any amount or calculation set forth in a Fee
Certificate or the amount or timing of any payment made to
MMT, then MMT and the JV shall resolve such dispute pursuant
to the Dispute Resolution Agreement.
Article 5
Title to Licensed Property;
Confidentiality and Related Matters
5.1. Title to Licensed Property. Title to all Licensed Property
shall at all times remain and vest solely with MMT. The JV agrees that it will
not claim or assert any right, title or interest in or to any such Licensed
Property or, except for sublicensing effected in accordance with Article 7,
attempt to transfer any right, title or interest in or to any Licensed Property
to any third parties, or challenge the validity of or assert the invalidity of
any Licensed Property.
5.2. Confidentiality Obligations.
(a) Each of the JV and MMT agrees that it will use the other
party's Confidential Information only in connection with the
activities contemplated by this Agreement and the Related
Agreements, and it will not disclose the other party's
Confidential Information to any Person except as expressly
permitted by this Section 5.2.
(b) The JV or MMT may disclose the other party's Confidential
Information:
(i) to their respective officers and employees who have a
reasonable need to know the contents thereof and who
have signed an agreement substantially in the form of
the Employee Non-Disclosure Agreement, a copy of
which shall be provided to each of the other parties;
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(ii) on a confidential basis to their respective Advisors
who have a reasonable need to know the contents
thereof, so long as such disclosure is made pursuant
to the procedures referred to in Section 5.5(c);
(iii) to customers who have a reasonable need to know the
contents thereof in connection with the activities
contemplated by this Agreement if such disclosure is
made pursuant to the procedures referred to in
Section 5.5(c);
(iv) to any sublicensee in accordance with the terms of
the applicable sublicense agreement;
(v) to the extent required by applicable statute, rule or
regulation or any court of competent jurisdiction;
provided that the JV or MMT, as applicable, has made
reasonable efforts to conduct its relevant business
activities in a manner such that the disclosure
requirements of such statute, rule or regulation or
court of competent jurisdiction do not apply, and
provided further that the relevant party is given
notice and an adequate opportunity to contest such
disclosure or to use any means available to minimize
such disclosure; and
(vi) to the extent such Confidential Information has
become generally available publicly through no fault
of the JV, MMT or their directors, officers,
employees, Advisors or sublicensees.
5.3. Treatment of Licensed Software Programs. Any Licensed Software
Programs furnished by MMT to the JV shall be furnished in object code form only.
The JV agrees that it will not attempt to modify, disassemble, decompile,
reverse-engineer or otherwise endeavor to discover or disclose the methods and
concepts embodied in the Licensed Software Programs. All Licensed Software
Programs shall be marked with such copyright, patent, proprietary legends,
restrictions or other notices as MMT may request, and the JV agrees not to
remove or destroy any such xxxx or notice on any of the Licensed Software
Programs.
5.4. Disclosure to Government Authorities. The Board of Directors
shall promptly establish and implement all procedural safeguards required or
advisable in connection with the performance of government contracts to protect
the confidentiality and value of the Licensed Property and the assets of the JV.
Each of MMT and the JV agrees to comply, and cause their employees to comply,
with such procedural safeguards.
5.5. Ongoing Confidentiality Program; Patent Markings.
(a) In order to ensure that each of the JV and MMT complies with
its obligations in Sections 5.1 through 5.4, the Board of
Directors together with any advising attorneys shall meet as
required to discuss issues relating to confidentiality and
disclosure and other matters addressed by this Article 5.
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(b) With respect to any disclosure by the JV to any of its
officers or employees permitted pursuant to Section 5.2(b)(i),
the JV shall cause each of its officers and employees to sign
Employee Non-Disclosure Agreements.
(c) With respect to any disclosure by the JV or MMT to any of its
Advisors pursuant to Sections 5.2(b)(ii) or to any customers
or sublicensees pursuant to Section 5.2(b)(iii) or (iv), the
Board of Directors will institute procedures designed to
maintain the confidentiality of Confidential Information while
facilitating the business activities contemplated by this
Agreement and the Related Agreements. These procedures shall
include the preparation of standard forms of confidentiality
agreements to be used by the parties in connection with such
disclosures.
(d) The Board of Directors will implement a program for the use of
patent markings by the JV as appropriate to fully protect the
Licensed Patents and Licensed Patent Applications in each
applicable country where they exist.
5.6. Quality Control. The JV shall provide to MMT a reasonable
opportunity to inspect the CEP Plants using the Licensed Property and the
services provided by the JV under the Licensed Trademarks (collectively, the "JV
Services"), upon MMT's request from time to time in order to enable MMT to
maintain an appropriately high level of quality commensurate with the valuable
goodwill associated with the Trademarks (the "Quality Standard"). If MMT
reasonably determines that the applicable CEP Plants or the JV Services being
performed by the JV do not meet the Quality Standard, MMT shall provide the JV
with written notice (the "Failure Notice") of such failure, specifying the
particular aspect of the applicable CEP Plants or the JV Services which MMT
claims does not meet the Quality Standard and the particular failure, together
with any supporting documentation of such failure. If the JV shall not have met
such Quality Standard for such JV Services and does not (i) take appropriate
action to diligently commence to cure such failure within thirty (30) days after
receipt of the Failure Notice and (ii) cure such failure by causing such JV
Services to meet such Quality Standard and provide documentation of such cure
reasonably acceptable to MMT within sixty (60) days after the receipt of the
Failure Notice, MMT may pursue any available remedies pursuant to the Dispute
Resolution Agreement. The JV may recommend to MMT any actions which the JV
reasonably believes should be taken to meet the Quality Standard and, if MMT
agrees with any such recommendation, the JV and MMT shall work together to
determine the appropriate actions which should be taken to meet the Quality
Standard.
5.7. Corporate Names. The JV shall be entitled to refer to
Nichimen, NKP and MMT in its advertising and other promotional materials,
subject to compliance with guidelines, to be adopted by the Board of Directors,
addressing the need to maintain a separate corporate identity for the JV, to
identify the JV as a licensee of the Licensed Property and similar concerns.
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Article 6
Improvements and Inventions
6.1. Improvements and Inventions. All Intellectual Property
(including all Improvements) relating to CEP or necessary or useful to any
application of CEP conceived, created, made, developed or reduced to practice by
or for MMT or JV personnel, will be owned by MMT and title to all such
Intellectual Property, including patents, patent applications and copyrights
filed or granted with respect thereto, will be issued solely in MMT's name. The
JV shall promptly disclose to MMT all Improvements which it may conceive or
discover during the JV Term. All Improvements, to the extent that they come
within the definition of Licensed Property, will be subject to the licenses
granted by MMT pursuant to Section 2.1, and the JV shall not be required to pay
any royalties or other fees for the license of such Improvements other than
those fees to be paid by the JV set forth in Article 4. Subject to MMT's
obligations under Section 3.1, MMT shall have the unrestricted right to license
any of the Improvements to any third parties without notice or accounting to the
JV, Nichimen or NKP.
6.2. Assignment of Improvements and Inventions.
(a) During and after the JV Term, the JV shall, and
shall cause its personnel to, from time to time as and when
requested by MMT and at MMT's expense, but without further
consideration, execute all papers and documents and perform
all other acts necessary or appropriate, in the discretion of
MMT, to evidence or further document MMT's ownership of all
Intellectual Property and Improvements.
(b) In the event MMT is unable after reasonable effort, for any
reason whatsoever, to secure the signature of the JV on
disclosure or other documents in connection with the
assignment of rights in Intellectual Property and Improvements
as provided in Section 6.1, the JV hereby irrevocably
designates and appoints MMT and its duly authorized officers
and agents as its attorney-in-fact, to act for and in the JV's
behalf and stead to execute and file any such documentation,
and to do all other lawfully permitted acts to prepare
documentation for and further the prosecution and issuance of
any rights in Intellectual Property or Improvements with the
same legal force and effect as if executed by the JV.
Article 7
Sublicensing
7.1. Obligations To Sublicense. In order to commercialize CEP
technology in the Market, the JV shall create and implement a comprehensive
program to promote sublicensing of the Licensed Property to appropriate third
parties in order to permit them to sell, own and operate CEP Plants located in
Japan that process Market Feedstocks. It is anticipated that consistent with the
terms of the JV Agreement, the JV will grant sublicenses to Nichimen and NKP to
permit
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them to sell, import, transport, operate and maintain CEP Plants to service the
Market as described in Section 5.2 of the JV Agreement. Such sublicenses with
Nichimen and NKP will be in the form of Annex E hereto.
7.2. Form of Sublicensing Agreements. As part of the comprehensive
sublicensing program referred to in Section 7.1, MMT and the JV shall develop
various forms of sublicense agreements to be used by the JV. With respect to any
sublicense agreement to be used by the JV, the Board of Directors shall have the
right to approve the sublicensee and the final terms of the sublicense
agreement.
Article 8
Design and Construction of CEP Plants and Certain Related Issues;
Minimum Sales Goals
8.1. Design and Construction of CEP Plants. MMT will be responsible for
all aspects of the design, engineering and construction of CEP Plants and the JV
will purchase these services exclusively from MMT. The specific terms, including
price, and scope of work for such design, engineering and construction shall be
set forth in separate mutually acceptable project agreements between the JV and
MMT consistent with the provisions of this Agreement. MMT will provide
warranties (including warranties as to conformance with technical
specifications) in CEP Plant sales agreements which are standard for the
relevant industry with respect to CEP Plants and services provided to the JV.
The JV will pass such warranties along to the customer pursuant to an equipment
sale agreement between the JV and the customer. It is anticipated that such
warranties, as well as any indemnification to be provided by MMT and the
limitations of MMT's liability in connection with sales of CEP Plants to the JV,
will be determined on a case-by-case basis based on industry standards and the
requirements of the End User.
8.2. Component Sales. As part of the ongoing quality control program of
MMT, MMT shall sell to the JV and any customers of the JV, and the JV and such
customers shall be required to purchase, specified CEP system components,
including those components listed on Schedule 8.2 hereto, in connection with the
sale and operation of CEP Plants. The particular CEP components to be purchased
with respect to any CEP Plant shall be specified in the applicable design
package for such CEP Plant. Any sales by MMT of such components shall be
pursuant to purchase orders or other documentation mutually acceptable to the JV
and MMT. MMT shall be compensated for sales of CEP system components
*
----------
*Confidential treatment has been requested for this portion of Exhibit 10.46.
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8.3. Manufacture of CEP Components Outside the United States. Over
time, if economically feasible and desirable, Nichimen or NKP may be entitled to
manufacture components of CEP Plants in Japan or elsewhere with MMT's prior
written consent and under terms and conditions to be mutually agreed, always
giving highest priority to quality.
8.4. Feasibility Studies; Research and Development. For customers of
the JV that require any technical analysis, engineering or research and
development for evaluation of their feedstocks, the JV and any such customer
shall be required to retain MMT to perform, or have performed at MMT's
direction, a feasibility study prepared by MMT which will specify, as necessary,
the design basis, scope, schedule, expected operating cost data and fixed price
quote for delivery of the particular CEP Plant. For any CEP Plant to be built by
the JV or its customers, MMT shall perform, and the JV and any such customer
shall be required to retain MMT to perform or have performed at its direction,
all research and development activities which may be required for such customer.
As described in Section 2.1(c), MMT shall have the right to charge the JV for
any additional design and engineering work that may be required in order to
permit MMT to deliver CEP Plants to customers of the JV which are not processing
solely MSW Incinerator Ash.
8.5. Technical Training. MMT shall provide, and the JV and its
customers shall be required to purchase from MMT, such initial and ongoing
training services and technical support as MMT shall deem necessary to ensure
that the JV's and such customers' CEP Plant operators are technically
proficient.
8.6. Reimbursement for Services. During the period from the date hereof
until two years after the date that the JV is notified that the demonstration
plant to be purchased by the JV pursuant to the CEP Plant Agreement is ready for
shipment to Japan, the JV shall reimburse MMT for any services provided by MMT
under Sections 8.4 and 8.5 in accordance with the following schedule:
Training, start-up, demonstration
and general operations * per person per day
Consulting and research and
development services * per person per day
After such period, the fees for training, start-up, demonstration and general
operations services shall increase to * per person per day and the fees for
consulting and research and development services shall increase to * per person
per day. Per day payments shall be calculated based on both working days and
travel days. All fees for services payable to MMT
14
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*Confidential treatment has been requested for this portion of Exhibit 10.46.
69
under the terms of this Section 8.6 shall be indexed to U.S. inflation. MMT also
shall be reimbursed for the cost of the travel and related expenses of all such
personnel.
8.7. Minimum Sales Goals. The JV shall use its best efforts to meet the
following minimum sales goals (the "Minimum Sales Goals") with respect to the
purchase of CEP Plants from MMT:
From date of Agreement to December 31, 1997 At least one CEP Plant
(demonstration plant)
From January 1, 1998 to December 31, 1998 At least one CEP Plant
From January 1, 1999 to December 31, 1999 At least two CEP Plants
From January 1, 2000 to December 31, 2000 At least two CEP Plants
From January 1, 2001 to December 31, 2001 At least three CEP Plants
Each subsequent year At least four CEP Plants
The purchase of a CEP Plant shall be evidenced by the execution of binding
contracts between Nichimen, NKP or other contractor of the JV and a customer for
the purchase of such CEP Plant, on the one hand, and between the JV and MMT for
the design and construction of such CEP Plant, on the other hand.
*
Article 9
Infringements
9.1. Detection of Infringements, Etc. MMT and the JV shall use their
respective reasonable efforts to detect any infringement, misappropriation,
violation, dilution or unauthorized or improper use of the Licensed Property or
unfair competition related to the Licensed Trademarks (collectively,
"Infringements", and individually an "Infringement"). In the event that either
MMT or the JV shall become aware of any such Infringement, or of any claim that
the use of the Licensed Property infringes, misappropriates, violates or dilutes
any proprietary right or property of any third Person, or of any product
liability claim or action based
----------
*Confidential treatment has been requested for this portion of Exhibit 10.46.
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on or arising out of the use of the Licensed Property by either MMT or the JV,
such party shall promptly give written notice thereof to the other parties.
9.2. Infringements of Licensed Property. In the event of any
Infringement of the Licensed Property or any claim that any Licensed Property,
or any equipment, material or process based on or utilizing Licensed Property,
infringes any proprietary right of any third Person (an "MMT Infringement
Claim"), then, subject to Section 9.4 below, MMT shall take such action as MMT
deems appropriate to address such Infringement or MMT Infringement Claim, as the
case may be. The JV, Nichimen and NKP shall cooperate as may be requested by MMT
in the prosecution, settlement or compromise of any such Infringement or MMT
Infringement Claim, and agrees to be joined as a party to any legal action or
proceeding commenced by MMT if it is deemed to be necessary or desirable by MMT
for the prosecution of such action or proceeding. If MMT proceeds to bring any
legal action or proceeding pursuant to the procedure provided for in this
Section 9.2, MMT will bear all reasonable costs of such action or proceeding
and, as applicable, will be entitled to receive and retain all proceeds realized
as a result of any settlement thereof or any judgment thereon or will pay any
judgment or settlement amount awarded or obtained with respect thereto.
9.3. JV Infringement Claims. In the event of any claim that any
combination by the JV of any non-infringing Licensed Property, or any
non-infringing equipment, material or process based on or utilizing Licensed
Property, with any Intellectual Property not furnished by MMT, or any claim that
the use by the JV of the Licensed Property, or any equipment, material or
process based on or utilizing Licensed Property, in a manner not contemplated by
this Agreement infringes, misappropriates, violates or dilutes any proprietary
right or property of any third Person (each a "JV Infringement Claim"), then,
subject to Section 9.4 below, the JV shall have the obligation to take all
actions reasonably necessary to oppose or defend such claims and to pay any
judgment or settlement amount awarded or obtained with respect to such JV
Infringement Claim. In the course of opposing or defending any such JV
Infringement Claim, the JV shall consult with MMT, Nichimen and NKP in
connection with all material issues relating to such opposition or defense and
shall consult with MMT, Nichimen and NKP prior to commencing the same and shall
consider any recommendations by MMT, Nichimen and NKP with respect to the
conduct and settlement or compromise thereof and any reasonable alternative
resolutions of the JV Infringement Claim. In the event that the JV does not
undertake to oppose or defend any such action within ninety (90) days after the
JV becomes aware of such JV Infringement Claim, MMT will have the right to
undertake the opposition or defense of such claim in the JV's name. MMT shall
not settle any JV Infringement Claim without the prior written consent of
Nichimen and NKP. If MMT undertakes to oppose or defend any JV Infringement
Claim pursuant to the procedure provided for in this Section 9.3, the JV shall
bear all costs of such action or proceeding and shall pay any judgment or
settlement amount awarded or obtained with respect to such JV Infringement
Claim. In the event that MMT does not undertake to oppose or defend any such
action within 180 days after the JV becomes aware of such JV Infringement Claim,
Nichimen and NKP shall have the right to undertake the opposition or defense of
such claim in the JV's name on the same basis as is applicable to MMT pursuant
to the preceding sentences.
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9.4. Mixed Claims. In the event of any claim which combines
elements of both an MMT Infringement Claim and a JV Infringement Claim, MMT and
the JV shall defend such claim jointly, with the costs of such defense and any
judgment or settlement amount awarded or obtained to be shared between them
based on the damages attributable to the MMT Infringement Claim versus the
damages attributable to the JV Infringement Claim.
Article 10
Representations and Warranties
10.1. Representations and Warranties of the JV and MMT. Each of the
JV and MMT represents and warrants to the other as follows:
(a) It has full power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated
hereby.
(b) It has obtained all necessary authorizations and approvals
required for the execution and delivery of this Agreement and
the consummation of the transactions contemplated hereby. This
Agreement has been duly executed and delivered by it and
constitutes the legal, valid and binding obligation of it,
enforceable against it in accordance with its terms.
(c) Neither the execution and delivery of this Agreement by it nor
the consummation by it of the transactions contemplated hereby
constitutes a violation of, or conflicts with, constitutes or
creates a default under, or results in the creation or
imposition of any liens upon any of its property pursuant to
(a) this Agreement; (b) any agreement or commitment to which
it is a party or by which it or any of its properties is bound
or to which it or any of its properties is subject; or (c) any
statute, regulation, rule, judgment, order, decree,
stipulation, injunction, charge or other restriction of any
government, governmental agency or court or other tribunal to
which it or any of its properties is subject. No consent,
approval or authorization of, or registration, qualification
or filing by it with, any governmental agency or authority is
required for the execution and delivery of this Agreement by
it or for the consummation by it of the transactions
contemplated hereby and thereby.
(d) It shall keep all of the Licensed Property and all of its
rights under this Agreement free and clear of any lien,
charge, security interest or other encumbrance.
(e) It is and shall continue to be in compliance with all
applicable laws and regulations which could, directly or
indirectly, affect its ability to perform its obligations
under this Agreement or any of the Related Agreements,
including but not limited to all United States and Japanese
laws regarding import or export controls.
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(f) It has and will obtain and maintain all licenses, permits,
approvals and authorizations necessary in order to enable it
to perform its obligations under this Agreement and the
Related Agreements.
10.2. Representations and Warranties Regarding Licensed Property.
MMT represents and warrants to the JV that, to the best of MMT's knowledge, (i)
MMT has good title to the Licensed Property and (ii) MMT is not aware that the
Licensed Property currently is infringing any Intellectual Property rights of
any third parties.
10.3. Other Representations and Warranties. The representations and
warranties set forth in Sections 10.1 and 10.2 are not exclusive and are in
addition to the other representations and warranties made by the JV and MMT in
this Agreement and the Related Agreements, including the obligation of MMT to
provide warranties to the JV in connection with sales of CEP Plants pursuant to
Section 8.1.
Article 11
Termination
11.1. Events of Termination. Except as provided in Section 11.2
below, this Agreement shall terminate upon the earliest to occur of:
(a) the mutual written consent at any time of the JV and MMT;
*
; and
(d) March 31, 2007, unless the JV and MMT agree prior to such date
to renew this Agreement for an additional term.
11.2. Effects of Termination.
(a) In the event of any termination of this Agreement pursuant to
Section 11.1, (i) the licenses granted pursuant to Article 2
shall terminate except as provided in paragraph (b) below;
(ii) the provisions of Articles 4, 5, 6, 9, 10, 12 and 13 and
----------
*Confidential treatment has been requested for this portion Exhibit 10.46.
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Sections 8.6 and 11.2 shall survive such termination; and
(iii) such termination shall not effect any party's rights
with respect to any breach or non-performance by any other
party prior to such termination.
(b) In the event of any termination of this Agreement pursuant to
Section 11.1, the licenses granted pursuant to Article 2 shall
remain in effect with respect to (i) all CEP Plants previously
sold by the JV, (ii) any CEP Plants under contract which have
not yet commenced commercial operation, to the extent the
Board of Directors elects to complete the development of such
CEP Plants, and (iii) any sublicense in effect at the time of
termination (including sublicenses granted in connection with
the operation and maintenance of one or more CEP Plants). The
licenses granted in Article 2 and any sublicense granted
pursuant to Article 7 shall remain in effect with respect to
any such CEP Plant for the life of such CEP Plant.
(c) In the event of any termination of this Agreement by MMT
pursuant to Section 11.1(b) as a result of a breach by the JV
of Article 4 of this Agreement, MMT shall have the right to
terminate the business relationship established by the JV
Agreement, this Agreement and the Related Agreements, subject
to paragraphs (a) and (b) above.
Article 12
*
Article 13
General
13.1. Expenses. Except as expressly set forth in this Agreement, all
expenses of the preparation, execution and consummation of this Agreement and of
the transactions
----------
*Confidential treatment has been requested for this portion of Exhibit 10.46.
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contemplated hereby and thereby, including, without limitation, attorneys',
accountants and outside advisers' fees and disbursements, shall be borne by the
party incurring such expenses.
13.2. Notices. All notices, demands and other communications hereunder
shall be in writing or by written telecommunication, and shall be deemed to have
been duly given if delivered personally or if mailed by certified mail, return
receipt requested, postage prepaid or if sent by overnight courier or sent by
written telecommunication, as follows:
If to the JV:
c/o NKK Plant Engineering Corporation
3 Benten-Cho, Tsurumi-ku
Yokohama, Japan 230
Attention: Kosaku Watando,
Director, R&D Department
If to MMT:
Molten Metal Technology, Inc.
000-0 Xxxxxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, III,
President and Chief Executive Officer
Xxxxx X. Xxxxx, Esq.,
Vice President and General Counsel
13.3. Entire Agreement. This Agreement (including the Exhibits and
Schedules hereto) together with the Related Agreements contains the entire
understanding of the parties hereto and thereto, and supersedes all prior
agreements and understandings relating to the subject matter hereof and thereof,
including but not limited to the Letter of Intent dated as of February 15, 1996
between MMT, Nichimen and NKP, and shall not be amended except by a written
instrument hereafter signed by all of the parties hereto or thereto, as
applicable. No waiver of any provision of the Agreement shall be effective
unless evidenced by a written instrument signed by the waiving party. MMT and
the JV further acknowledge and agree that, in entering into this Agreement and
the Related Agreements, they have not in any way relied upon any oral or written
agreements, statements, promises, information, arrangements, understandings,
representations or warranties, express or implied, not specifically set forth in
this Agreement or the Related Agreements.
13.4. Governing Law, Etc. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York,
all rights and remedies being governed by such laws, without regard to its
conflict of laws rules.
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13.5. Waiver of Jury Trial. Each of the JV and MMT hereby irrevocably
waives any rights that they may have to a trial by jury in respect of any
litigation based upon, or arising out of, this Agreement or any of the Related
Agreements or any course of conduct, course of dealing, statements or actions of
any of them relating thereto.
13.6. Sections and Section Headings. The headings of sections and
subsections are for reference only and shall not limit or control the meaning
thereof.
13.7. Assigns. This Agreement and the Related Agreements shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, successors and permitted assigns. For purposes of the preceding sentence,
any purchaser or all of a majority of the assets of MMT, Nichimen, NKP or the JV
shall be deemed to be a successor. Except as provided in Section 17.8 of the JV
Agreement, neither this Agreement nor the rights or obligations of any party
hereunder shall be assignable or transferable by such party without the prior
written consent of each of the other parties hereto.
13.8. No Implied Rights or Remedies. Except as otherwise expressly
provided herein, nothing herein expressed or implied is intended or shall be
construed to confer upon or to give any person, firm or corporation, except MMT
and the JV, any rights or remedies under or by reason of this Agreement.
13.9. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
13.10. Dispute Resolution. All disputes or claims arising under or in
any way relating to this Agreement shall be subject to the Dispute Resolution
Agreement.
13.11. Construction; English Version Controlling. The language used in
this Agreement will be deemed to be the language chosen by the parties to
express their mutual intent, and no rule of strict construction will be applied
against any party. In case of any conflict between the English version and any
translated version of this Agreement or any Related Agreement, the English
version shall govern.
13.12. Severability. The invalidity or unenforceability of any
particular provision of this Agreement or any Related Agreement shall not affect
the other provisions hereof or thereof, and this Agreement shall be construed in
all respects as if such invalid or unenforceable provision was omitted.
13.13. Payments in U.S. Dollars. Unless otherwise expressly agreed in
writing by MMT, all payments to MMT under this Agreement, including but not
limited to under Sections 4.1, 4.2 and 8.6, shall be made in U.S. dollars.
13.14. Acknowledgment of JV Agreement. The JV and MMT each acknowledge
that this Agreement has been entered into pursuant to, and in accordance with,
the JV Agreement, and
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that the JV Agreement sets forth the roles and responsibilities of MMT, Nichimen
and NKP with respect to the creation and operation of the JV.
IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties hereto have caused this Agreement to be duly executed and delivered as a
sealed instrument as of the date and year first above written.
Attest: YUGEN KAISHA (LLP) CEREX CEP JAPAN
_______________________ By: ______________________________________
Ituro Hashimoto
President-Director
Attest: MOLTEN METAL TECHNOLOGY, INC.
_______________________ By: ______________________________________
Xxxxxxx X. Xxxxx, III
President and Chief Executive Officer
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Exhibit F to Joint Venture Master Agreement
LIMITED GUARANTY
THIS GUARANTY is made as of ______________, 199__ (this "Guaranty") by
______________, a _________ corporation (the "Guarantor"), in favor of and for
the benefit of _____________, a ___________ corporation ("Company A"), and
_______________, a __________ corporation ("Company B").
RECITALS:
WHEREAS, the Guarantor, Company A and Company B have entered into a
Joint Venture Master Agreement dated as of October 30, 1996 (the "JV
Agreement"). Capitalized terms used herein and not otherwise defined are used as
defined in the JV Agreement.
WHEREAS, pursuant to Section 17.8 of the JV Agreement, the Guarantor
has elected to assign its rights and obligations under the JV Agreement and the
Related Agreements to ________________, a _____________ corporation (the
"Guarantor Subsidiary"), a wholly-owned subsidiary of the Guarantor.
WHEREAS, in accordance with the JV Agreement, the Guarantor has agreed
to execute and deliver to Company A and Company B this Guaranty to guarantee the
payment and performance of the obligations of the Guarantor Subsidiary under the
JV Agreement and the Related Agreements (collectively, the "Guarantor Subsidiary
Obligations").
NOW, THEREFORE, in consideration of value received, the sufficiency of
which is hereby acknowledged, the Guarantor does hereby agree as follows.
1. Guaranty. The Guarantor hereby unconditionally guarantees the prompt
and complete payment and performance, when due, of the Guarantor Subsidiary
Obligations to the JV, Company A and Company B, as applicable. This Guaranty is
one of payment and not of collection.
2. Waiver of Suretyship Defenses. Company A of Company B, as
applicable, may at any time and from time to time without notice to or consent
of the Guarantor and without impairing or releasing the obligations of the
Guarantor hereunder: (i) make any change in the terms of any obligation or
liability of the Guarantor Subsidiary, (ii) take or fail to take any action of
any kind in respect of any security for any obligation or liability of the
Guarantor Subsidiary to Company A, Company B or the JV, (iii) exercise or
refrain from exercising any rights against the Guarantor Subsidiary, or (iv)
compromise or subordinate any obligation or liability of the Guarantor
Subsidiary to Company A or Company B including any security therefor. The
Guarantor hereby waives all suretyship defenses.
3. Waiver of Notices. The Guarantor hereby waives notice of acceptance
of this Guaranty, and waives presentment, demand for payment, protest, notice of
dishonor or non-payment of any such obligation or liability, suit or the taking
of other action by Company A or Company B against the Guarantor Subsidiary or
the Guarantor.
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4. Termination of Limited Guaranty. This Guaranty shall continue in
full force and effect until the earlier of (i) termination or expiration of the
JV Agreements and all of the Related Agreements or (ii) written agreement by
Company A and Company B releasing the Guarantor from its obligations hereunder.
Notwithstanding any provision of this Guaranty or any Related Agreement to the
contrary, upon the payment or performance of any Guarantor Subsidiary Obligation
by the Guarantor, the JV and/or the Guarantor Subsidiary, the Guarantor shall be
discharged, and its obligations hereunder shall cease and terminate, with
respect to any such Obligation that has been satisfied by payment or
performance, notwithstanding whether any payment is required to be disgorged or
returned by Company A, Company B or the JV.
5. No Waiver of Subrogation, Indemnity and/or Contribution Rights.
Notwithstanding any provision of this Guaranty to the contrary, no subrogation
rights, indemnity rights and/or contribution rights are being waived hereunder
by the Guarantor.
6. Dispute Resolution. All disputes or claims arising under or in any
way relating to this Guaranty shall be subject to the Dispute Resolution
Agreement.
7. Governing Law. This Guaranty shall be governed by, construed and
enforced in accordance with, the laws of the State of New York (without regard
to its conflict of laws rules), and all rights and remedies shall be governed by
such laws.
8. English Version Controlling. In case of any conflict between the
English version and any translated version of this Agreement, the English
version shall govern.
9. Severability. The invalidity or unenforceability of any particular
provision of this Guaranty shall not affect the other provisions hereof or
thereof, and this Guaranty shall be construed in all respects as if such invalid
or unenforceable provision was omitted.
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound
hereby has duly and validly executed this Guaranty as of the day and year first
written above.
GUARANTOR:
By: _________________________________
Name:
Title:
Accepted:
[COMPANY A]
By: ________________________________
Name:
Title:
[COMPANY B]
By: ________________________________
Name:
Title:
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