EXHIBIT 10.9
STRICTLY CONFIDENTIAL
EXECUTION COPY
TECHNICAL INFORMATION LICENSE AGREEMENT
BETWEEN
RAYTHEON AIRCRAFT COMPANY
AND
RAYTHEON AEROSPACE COMPANY
----------
THIS TECHNICAL INFORMATION LICENSE AGREEMENT ("Agreement") is made and entered
into as of the 27th day of June, 2001 ("Effective Date"), by and between
Raytheon Aircraft Company, a corporation organized and existing under the laws
of the State of Kansas, with principal offices located at ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ("LICENSOR") and Raytheon Aerospace Company, a
corporation organized under the laws of the State of Kansas with principal
offices located at ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ ("LICENSEE")
(each of whom may be referred to hereafter as a "Party", or collectively as the
"Parties").
RECITALS:
WHEREAS, LICENSOR is engaged in the business of aircraft manufacturing,
including the manufacture of general aviation and military unique aircraft, and
owns certain technical and engineering information relating to such aircraft,
said information being proprietary to LICENSOR;
WHEREAS, LICENSEE is engaged in the business of providing aircraft maintenance,
support and related services to government and commercial customers;
WHEREAS, LICENSEE has obtained, from time to time in the past, technical and
engineering information from LICENSOR to assist LICENSEE in the performance of
various programs for its customers, including certain programs that, as of the
Effective Date of this Agreement, LICENSEE is contractually obligated to perform
("Pending Programs");
WHEREAS, LICENSEE desires to obtain, from time to time in the future, technical
and engineering information from LICENSOR to assist LICENSEE in connection with
such Pending Programs ("Pending Program Technical Information" or "PPTI"); and,
WHEREAS, LICENSOR is willing to continue providing such PPTI to LICENSEE in
connection with Pending Programs, subject to the terms and conditions contained
herein.
NOW THEREFORE, for and in consideration of the foregoing and the mutual promises
contained herein, and for other good and valuable consideration, the sufficiency
of which is acknowledged by the Parties, the Parties agree as follows:
1.0 PURPOSE.
1.1 The purpose of this Agreement is to set forth the terms and conditions
which shall apply to the licensing of PPTI by LICENSOR to LICENSEE in
support of Pending Programs.
2.0 PENDING PROGRAM TECHNICAL INFORMATION.
2.1 PPTI subject to this Agreement is the following:
A. All technical and engineering information provided by LICENSOR to
LICENSEE prior to the Effective Date of this Agreement that is
reasonably required to perform any Pending Program; and,
B. All technical and engineering information provided by LICENSOR to
LICENSEE subsequent to the Effective Date of this Agreement to assist
LICENSEE in the performance of any Pending Program.
2.2 For the avoidance of doubt, PPTI does not include the following:
A. Any technical or engineering information that LICENSOR may have
provided to LICENSEE at any time in the past that is not reasonably
required to perform any Pending Program;
B. Except as otherwise provided in paragraph 3.2 herein below, any
information that LICENSEE may desire to obtain in support of any
future program, contract or opportunity that is not a Pending Program;
or,
C. Any manual, bulletin, instruction or similar document concerning the
operation, maintenance or repair of LICENSOR's products that LICENSOR
makes available to the general public.
3.0 PENDING PROGRAMS.
3.1 The Pending Programs to which this Agreement shall apply are set forth in
Schedule A, hereto.
3.2 The rights and obligations set forth in this Agreement shall extend to
and include any follow-on contract awarded to RA by the U.S. government
for the Navy T-34/T-44 CLS Program (Item 1 in Schedule A) or the JPATS
T-6A CLS Program (Item 5 in Schedule A); provided however, any such
contract results from a Request for Proposal or other solicitation issued
by the U.S. government on or before December 31, 2005. In the event
either or both such follow-on contracts are awarded to RA as set forth in
this paragraph 3.2, it or they shall be considered to be Pending Programs
for all purposes associated with this Agreement.
4.0 LICENSE GRANTED.
4.1 Subject to such other qualifications, limitations and restrictions as are
contained in this Agreement, LICENSOR hereby grants to LICENSEE a
personal, nonexclusive, worldwide license, to use PPTI for purposes of
performance of Pending Programs ("License"). The License hereby granted
shall be without the right to further sublicense. Except as provide in
paragraph 17.12, the License hereby granted is non-transferable and
non-assignable.
4.2 LICENSEE covenants and agrees that PPTI shall not be used for any other
purpose other than that set forth in paragraph 4.1, unless agreed to by
LICENSOR in a separate writing.
5.0 ROYALTIES; FEES AND COSTS.
5.1 The License granted by LICENSOR to LICENSEE pursuant to this Agreement
shall be royalty free; provided however, nothing set forth herein shall
be interpreted or construed as preventing or limiting LICENSOR from
requiring the payment of mutually acceptable royalties for the furnishing
of any technical or engineering information or the use thereof when
requested by LICENSEE for programs, contracts or opportunities that are
not Pending Programs.
5.2 In the event LICENSEE should request, subsequent to the Effective Date of
this Agreement, PPTI from LICENSOR, LICENSEE shall pay LICENSOR as
follows: (1) LICENSEE shall pay for those labor hours expended by
LICENSOR in the locating, reproducing and shipping of PPTI at LICENSOR's
then prevailing composite rate for administrative staff; and, (2) any
additional costs actually incurred by LICENSOR in the locating,
reproduction and shipping of the PPTI. LICENSEE shall make such payments
within thirty (30) days following presentation of LICENSOR's commercial
invoice for any such effort.
5.3 In the event LICENSEE requests technical assistance or technical support,
other than the providing of PPTI in connection with any Pending Program,
such technical assistance or technical support will be provided subject
to the further agreement of the Parties, including agreement regarding
payment to LICENSOR for such additional technical assistance or technical
support.
6.0 AVAILABILITY OF PENDING PROGRAM TECHNICAL INFORMATION.
6.1 PPTI made available to LICENSEE by LICENSOR pursuant to this Agreement
shall be provided on an "as is" basis. Nothing in this Agreement shall be
interpreted or construed as requiring LICENSOR to develop PPTI or to
revise, modify, reformat or translate PPTI as it then may exist in
LICENSOR's files. LICENSOR shall not be required to provide LICENSEE with
revision or update services with respect to the PPTI.
7.0 RESTRICTIVE MARKINGS.
7.1 PPTI may contain markings identifying it as proprietary to LICENSOR or as
being subject to U.S. export control laws. LICENSEE shall not alter or
remove any such restrictive markings. Any copies of PPTI authorized by
this Agreement which are reproduced by LICENSEE shall contain identical
restrictive markings. Any compilations of PPTI or documents created by
LICENSEE containing PPTI shall likewise carry identical restrictive
markings.
8.0 CONFIDENTIALITY.
8.1 LICENSEE understands and acknowledges that the PPTI is proprietary to
LICENSOR. LICENSEE hereby agrees that the License granted by this
Agreement shall be subject to the following limitations in addition to
any other limitations set forth herein:
A. PPTI shall be used solely by LICENSEE directly in connection with
Pending Programs and shall not otherwise be used for the benefit of
LICENSEE or others;
B. PPTI shall not be disclosed to any third party, without the prior
written permission of LICENSOR; provided however, LICENSEE may
disclose PPTI to the U.S. government as may be reasonably required by
any Pending Program. In the event PPTI is disclosed to the U.S.
government, LICENSEE shall ▇▇▇▇ or otherwise identify it as being
subject to Limited Rights or Restricted Rights, as appropriate, as set
forth in the Federal Acquisition Regulations, including any applicable
supplements thereto; and,
C. PPTI shall not be reproduced by LICENSEE except as may be reasonably
required by LICENSEE in fulfilling Pending Program requirements.
9.0 TERM AND EXPIRY.
9.1 This Agreement, and the License hereby granted, shall commence as of the
Effective Date set forth above.
9.2 This Agreement, and the License hereby granted, shall expire with respect
to each Pending Program upon the expiration or termination of said
Program and LICENSEE shall thereupon return all PPTI associated with the
affected Pending Program as set forth in paragraph 16.2. Upon the
expiration of the final remaining Pending Program, the License granted by
this Agreement shall be ended and LICENSEE shall make no further use
whatsoever of the PPTI. The obligation of confidentiality and the
restriction on other uses of PPTI set forth in paragraph 8.1 shall
continue for a period of ten (10) years following the expiration of this
Agreement, or if this Agreement should be terminated prior to expiration
pursuant to paragraph 14.1, the obligation of confidentiality set forth
in paragraph 8.1 shall continue for a period of ten (10) years following
such termination.
10.0 WARRANTIES DISCLAIMED.
10.1 NO WARRANTY, GUARANTEE OR REPRESENTATION WITH RESPECT TO PPTI OR ITS
SUITABILITY FOR THE PURPOSES CONTEMPLATED BY LICENSEE IS MADE BY
LICENSOR, AND LICENSEE SHALL RELY SOLELY ITS OWN EXPERTISE AND EXPERIENCE
IN DETERMINING WHETHER PPTI IS SUITABLE AND SUFFICIENT FOR LICENSEE'S
INTENDED PURPOSES. TO THE EXTENT ALLOWED BY LAW, LICENSOR DISCLAIMS AND
LICENSEE WAIVES
ALL WARRANTIES PERTAINING TO PPTI, WHETHER EXPRESS OR IMPLIED, AND
WHETHER OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT OR OTHERWISE.
11.0 LIMITATION OF LIABILITY.
11.1 IN THE EVENT OF ANY BREACH OF THIS AGREEMENT, THE NONBREACHING PARTY
SHALL BE ENTITLED TO COMPENSATORY DAMAGES ONLY. NEITHER PARTY SHALL BE
LIABLE TO THE OTHER PARTY, AS A RESULT OF ANY BREACH OF THIS AGREEMENT,
FOR INCIDENTAL, CONSEQUENTIAL, MULTIPLE, PUNITIVE OR EXEMPLARY DAMAGES,
WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT OR OTHERWISE.
12.0 DISPUTES.
12.1 In the event of any dispute arising under this Agreement, each Party's
business unit or department most responsible for its company's
performance under this Agreement shall endeavor in good faith to amicably
resolve the dispute. In the event the dispute cannot be resolved by such
efforts, resolution of the dispute shall be escalated to senior
management within each company in the effort to reach an amicable
conclusion.
12.2 In the event the dispute cannot be resolved as set forth in paragraph
12.1, the dispute shall be finally settled in accordance with the
Commercial Rules, then prevailing, of the American Arbitration
Association ("AAA").
12.3 LICENSOR and LICENSEE expressly agree not to institute any litigation or
proceedings (whether judicial, administrative or otherwise) against the
other Party except as specifically provided herein; provided however,
nothing herein shall be construed as preventing or limiting either Party
from seeking injunctive relief to preserve any right or benefit under
this Agreement until arbitration can be concluded.
12.4 Arbitration shall be conducted by a panel of three arbitrators. Each
Party shall nominate one arbitrator. If a Party fails to nominate an
arbitrator within sixty (60) days from the date when a claimant's request
for arbitration has been communicated by the other Party, such
appointment shall be made by the AAA. The two arbitrators thus appointed
shall attempt to agree on a third arbitrator who shall act as Chair. If
the two arbitrators fail to nominate a Chair within sixty (60) days from
the date of appointment of the latter arbitrator, the Chair will be
selected by the AAA.
12.5 The location of the arbitration shall be Wichita, Kansas U.S.A.
Arbitration shall be conducted the English language.
12.6 The arbitrators may award compensatory damages to either Party, BUT UNDER
NO CIRCUMSTANCES SHALL THEY AWARD INCIDENTAL, CONSEQUENTIAL, MULTIPLE,
PUNITIVE OR EXEMPLARY DAMAGES.
12.7 Judgment on the award made by the arbitrators may be entered in any court
having jurisdiction thereof or having jurisdiction over one or more of
the Parties or their assets.
13.0 COMPLIANCE WITH LAW.
13.1 The Parties understand and acknowledge that PPTI is or may be subject to
the export laws and regulations of the United States. LICENSEE shall
comply with all applicable export laws and regulations and shall handle,
safeguard and protect PPTI from unauthorized export.
13.2 In the event that LICENSOR reasonably believes that the providing of PPTI
will or may violate any law or regulation of the United States, LICENSOR
shall notify LICENSEE and LICENSOR shall thereupon have no obligation to
provide PPTI until and unless LICENSEE demonstrates or provides evidence
reasonable under the circumstances that any such law or regulation would
not be violated by the providing of PPTI.
14.0 TERMINATION.
14.1 Either Party may terminate this Agreement and the License hereby granted
prior to expiration, upon the other Party's substantial and material
breach of any obligation arising hereunder, and such other Party's
failure to cure such breach within thirty (30) days following the receipt
of written notice, or such longer period of time as may be required to
cure a breach which cannot reasonably be cured within thirty (30)
calendar days.
14.2 Upon the termination of this Agreement pursuant to paragraph 14.1, either
Party may seek redress in accordance with the provisions of section 12.0,
DISPUTES.
15.0 EXCUSABLE NONPERFORMANCE.
15.1 Neither Party shall be liable for any delay in the performance of its
obligations under this Agreement when such delay is caused or created by
circumstances beyond its control. Such circumstances include, but are not
limited to: acts of force majeure; inability to obtain or retain
government licenses, permits or approvals; interruption of essential
services; or, any action or inaction by either Party which creates a
delay in the other Party meeting any schedule required by this Agreement.
15.2 In the event either Party is delayed by any of the causes set forth in
paragraph 15.1, its period of performance shall be extended as may be
reasonably necessary under the circumstances.
16.0 RETURN OF TECHNICAL AND ENGINEERING INFORMATION; PPTI.
16.1 Within one hundred eighty (180) days after the Effective Date of this
Agreement, LICENSEE shall identify, locate and return all technical and
engineering information residing in LICENSEE's files and records that
LICENSOR may have provided to LICENSEE at any time in the past that is
not reasonably required to perform any Pending Program. LICENSEE shall,
before or upon the conclusion of this 180 day period, issue a certificate
to LICENSOR, signed by a corporate officer authorized to bind LICENSEE,
certifying that all such technical and engineering information residing
in LICENSEE's files and records has been returned to LICENSOR.
16.2 Within ninety (90) days following the expiration or termination of any
Pending Program, LICENSEE shall return all PPTI that LICENSOR may have
provided to LICENSEE in support of such Pending Program, and all copies
thereof. LICENSEE shall at the time such PPTI is returned, issue a
certificate to LICENSOR, signed by a corporate officer authorized to bind
LICENSEE, certifying that all PPTI relating to the expired or terminated
Pending Program has been returned to LICENSOR.
17.0 ADDITIONAL PROVISIONS.
17.1 The Parties shall perform all efforts under this Agreement as independent
contractors. Nothing in this Agreement shall be interpreted or construed
as creating any form of partnership, agency, joint venture or other
formal business arrangement whatsoever. Neither Party is authorized to
represent, bind or act for the other Party.
17.2 Any notice required or permitted to be given hereunder shall be deemed
sufficiently given if sent by certified mail, commercial courier,
personal delivery or telefacsimile. Notice sent by certified mail or
commercial courier shall be deemed delivered as of the date received by
the recipient, as evidenced by a postal receipt or the records of the
commercial courier. Notice by personal delivery shall be deemed delivered
on the date of receipt by the employee of the recipient identified in
this paragraph 17.2. Notice by telefacsimile shall be deemed delivered
twenty-four (24) hours after being successfully transmitted to the
telefacsimile number indicated in this paragraph 17.2. Either Party may
change its notification information by providing the other Party with
written notice thereof. Until and unless changed by such written notice,
the addresses of the Parties shall be as follows:
For LICENSOR:
RAYTHEON AIRCRAFT COMPANY
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇,
Telefax Number: ▇▇▇-▇▇▇-▇▇▇▇.
For LICENSEE:
RAYTHEON AEROSPACE COMPANY
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone Number: ▇▇▇-▇▇▇-▇▇▇▇,
Telefax Number: ▇▇▇-▇▇▇-▇▇▇▇.
17.3 This Agreement shall be governed, interpreted and construed in accordance
with the laws of the State of Kansas, except for any provision thereof
specifying the application of the laws of another jurisdiction.
17.4 The failure of either Party to enforce at any time any of the provisions
of this Agreement shall not be construed as a waiver of such provisions,
nor affect the validity of this Agreement, nor the right of either Party
to thereafter enforce each and every provision hereof.
17.5 Other than the License expressly granted to LICENSEE by LICENSOR herein,
this Agreement shall not give either Party any title, interest or other
rights in intellectual property, proprietary information or trade secrets
owned or controlled by the other Party.
17.6 The headings to various sections and paragraphs of this Agreement are for
convenience of reference only and shall not in any way affect the
interpretation hereof.
17.7 The Parties acknowledge that this Agreement is the product of negotiation
and joint effort. Accordingly, the language, terms and conditions of this
Agreement shall not be construed more strictly against either of the
Parties in the event a question of interpretation, construction or
meaning should hereafter arise.
17.8 Time is of the essence with respect to all obligations set forth herein.
17.9 If any provision of this Agreement is found to be invalid by any
judicial, quasi-judicial or administrative body, the invalidity of such
provision shall not affect the remainder of this Agreement.
17.10 This Agreement may be executed in multiple counterparts, each of which
shall be deemed to be an original and together constitute one and the
same instrument. Copies signed and transmitted by facsimile shall be
legally binding as if they were signed in person.
17.11 Nothing in this Agreement shall be interpreted or construed as creating
any rights in favor of third parties.
17.12 No right or interest in this Agreement shall be assigned, and no duty
hereunder shall be delegated by either Party without the prior written
permission of the other Party; provided however, either Party may, upon
notice to the other Party, assign this Agreement to its successor upon
the merger, consolidation, sale or transfer of substantially all of that
Party's assets. Any such assignment or delegation shall be void unless
made in conformity with this paragraph 17.12.
17.13 All Schedules to this Agreement are by this reference incorporated into
this Agreement for all purposes as if they were fully set forth herein.
17.14 The terms and conditions herein contained shall take precedence over and
will not be varied by any conflicting or differing terms contained in any
purchase order or subcontract relating to the subject matter hereof.
17.15 This Agreement constitutes the entire agreement and understanding between
LICENSOR and LICENSEE with respect to the subject matter hereof. There
are no verbal understandings, agreements, representations or warranties
between the Parties which are not expressly set forth herein. This
Agreement supersedes all prior agreements, whether written, oral or
otherwise, between the Parties with respect to the subject matter set
forth herein. The Agreement may not be modified except by a written
amendment signed by both Parties.
WHEREFORE, the Parties have caused this Agreement to be entered into by their
duly authorized representatives as of the Effective Date set forth above.
RAYTHEON AIRCRAFT COMPANY RAYTHEON AEROSPACE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------- ----------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: VP - Gen. Counsel Title: Director
Date: Date:
