[EXHIBIT 10.37- Certain portions of this document have been
omitted in the publicly filed version of this document pursuant to
the Registrant's request for confidential treatment and filed
separately with the Securities and Exchange Commission.]
SPD-SMART WINDOW LICENSE AGREEMENT
BETWEEN
RESEARCH FRONTIERS INCORPORATED
AND
LEMINUR LIMITED.
This License Agreement ("Agreement") effective as of
December 11, 2003 by and between RESEARCH FRONTIERS
INCORPORATED, a Delaware corporation ("LICENSOR") and
LEMINUR LIMITED., a Cyprus corporation ("LICENSEE").
RECITALS
WHEREAS, LICENSOR has been engaged in research and
development in the application of physicochemical concepts to Light
Valves and Licensed Products (both as hereinafter defined) and of
methods and apparatus relating to products incorporating such
concepts; and is possessed of and can convey information and know-
how for such products and rights to manufacture, use and sell such
products; and
WHEREAS, LICENSEE is interested in manufacturing and
selling Licensed Products; and
WHEREAS, LICENSEE desires to acquire from LICENSOR,
and LICENSOR desires to grant to LICENSEE, certain rights and
licenses with respect to such technology of LICENSOR;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows.
1 DEFINITIONS.
The following terms when used herein shall have the respective
meanings set forth in this Article 1.
The "Effective Date" of this Agreement shall be the date which is
the last date of formal execution of this Agreement by duly
authorized representatives of the parties to this Agreement as
indicated on the signature page of this Agreement.
"Licensed Product" means a Light Valve Architectural Window
Product incorporating a Light Valve. The term "Licensed Product"
shall not include Light Valves used or intended for use in any
product other than as specifically defined herein, such as but not
limited to, other window products not specifically defined herein,
such as windows for transportation vehicles, including, but not
limited to passenger cars, recreational vehicles, trucks, mobile
cranes, trains, monorails. aircraft, boats, vans, sport utility vehicles,
space craft and space-stations, and non-window products such as but
not limited to displays, eyewear, sunvisors, toys, mirrors or filters for
scientific instruments, lamps or contrast enhancement of displays.
The term "display" means any device for displaying letters, numbers,
images or other indicia or patterns. Nothing contained herein shall
permit LICENSEE to sell, lease, or otherwise dispose of a Light
Valve which is not combined or intended to be combined as
described above into a Light Valve Architectural Window Product.
"Licensed Territory " means the Russian Federation, Armenia,
Azerbaijan, Belarus, Estonia, Georgia, Kazakhstan, Kyrgyz,
Republic, Latvia, Lithuania, Moldova, Tajikistan, Turkmenistan,
Ukraine and Uzbekistan.
"Light Valve" means a variable light transmission device
comprising: a cell including cell walls, containing or adapted to
contain an activatable material, described hereinafter, such that a
change in the optical characteristics of the activatable material
affects the characteristics of light absorbed by, transmitted through
and/or reflected from the cell; means incorporated in or on the cell,
or separate therefrom for applying an electric or magnetic field to the
activatable material within the cell; and coatings, (including, but not
limited to, electrodes), spacers, seals, electrical and/or electronic
components, and other elements incorporated in or on the cell. The
activatable material, which the cell contains or is adapted to contain,
includes in it solid suspended particles, which when subjected to a
suitable electric or magnetic field, orient to produce a change in the
optical characteristics of the device, and may be in the form a liquid
suspension, gel, film or other material.
"Light Valve Architectural Window Product" means a Light Valve
used or intended for use solely as a window integrally incorporated
in, or attached as a fixture to the external structure or internal
structure of any building, whether permanent or temporary, and
whether above or below ground.
The "Net Selling Price" of a Licensed Product on which royalties are
payable shall be the larger of the following: (A) the genuine selling
price of LICENSEE and its sublicensees hereunder (including
amounts charged for any wiring, related electronics and controllers,
installation, and related services provided by LICENSEE and its
sublicensees hereunder) f.o.b. factory at which nonaffiliated
customers are billed in the usual course of business for a Licensed
Product, as packed for shipment to the customer; and (B) $100 per
window. The aforementioned $100 figure specified in clause (B)
above shall be adjusted upward as of each January 1st hereafter
beginning on January 1, 2005 by any increase in the Producer Price
Index for Finished Goods (the "Index") for the 12 month period
ending in December of the prior year, prepared by the Bureau of
Labor Statistics of the United States Department of Labor (or if the
Index is not then being published, the most nearly comparable
successor index). In calculating a genuine selling price of a product
for the above calculation, such price may be reduced only by the
applicable proportions of the following if, and to the extent that,
amounts in respect thereof are reflected in such selling price: (i)
normal trade discounts actually allowed; (ii) sales, use or excise and
added value taxes and custom duties paid; (iii) if the genuine selling
price is other than f.o.b. factory, amounts paid for f.o.b.
transportation of the product to the customer's premises or place of
installation or delivery; (iv) insurance costs and the costs of packing
material, boxes, cartons and crates required for shipping; provided,
however, that for purposes of this calculation, the genuine selling
price of a product may not be less than 90% of the gross selling price
of said product after all deductions therefrom, if any. If a product is
leased, sold, used or otherwise disposed of on terms not involving a
bona fide arm's length sale to an unaffiliated third party, then the
Net Selling Price for such transactions shall be deemed to be the Net
Selling Price as defined above for identical products sold to a
nonaffiliated customer nearest to the date of such lease, sale, use, or
other disposition.
"Technical Information" means all useful information relating to
apparatus, methods, processes, practices, formulas, techniques,
procedures, patterns, ingredients, designs and the like including (by
way of example) drawings, written recitations of data, specifications,
parts, lists, assembly procedures, operating and maintenance
manuals, test and other technical reports, know-how of LICENSOR,
and the like owned or controlled by LICENSOR, to the extent they
exist, that relate to Light Valves, Licensed Products and/or to the
suspensions or other components used or usable for Licensed
Products or Light Valves including, but not limited to, particles,
particle precursors, coatings, polymers, liquid suspensions and
suspending liquids, or any combination thereof, and that consist of
concepts invented or developed by LICENSOR. Know-how of
LICENSOR's suppliers and of LICENSOR's other licensees and
their sublicensees under licenses from LICENSOR shall not be
considered Technical Information owned or controlled by
LICENSOR.
2 GRANT OF LICENSE.
2.1 License. During the term of this Agreement, LICENSOR
hereby grants LICENSEE a non-exclusive right and license to use (a)
all of the Technical Information, if any, (subject to Section 8.1
hereof), furnished by LICENSOR pursuant to this Agreement, and
(b) any invention claimed in (i) any of the unexpired patents now or
hereafter listed on Schedule A attached hereto or (ii) unexpired
patents which issue from pending patent applications now or
hereafter listed in Schedule A, and any continuations, continuations-
in-part, divisions, reissues, reexaminations, or extensions thereof to
make, have made, and to lease, sell, or otherwise dispose of Licensed
Products in the Licensed Territory.
2.2 No Other Rights. LICENSEE agrees that, except for the
specific licenses granted to it under Section 2.1 hereof for use in
Licensed Products, LICENSEE has not acquired any rights or
licenses under this Agreement to use Light Valves or any
components thereof made by or for LICENSEE or its sublicensees
pursuant to this Agreement.
2.3 Sublicenses. LICENSEE shall have the right to grant non-
exclusive sublicenses to any of its wholly-owned and controlled
subsidiaries, whose obligations to LICENSOR hereunder
LICENSEE hereby guarantees, and which acknowledges to
LICENSOR in writing that it wishes to become a sublicensee
hereunder prior to doing so and agrees to be bound by the terms and
conditions of this Agreement. All sublicenses shall (i) be non-
exclusive, (ii) shall terminate with the termination of the rights and
licenses granted to LICENSEE under Section 2.1 hereof, and be
otherwise limited in accordance with the limitations and restrictions
which are imposed on the rights and licenses granted to LICENSEE
hereunder, (iii) contain confidentiality provisions no less protective
than those contained in Section 12.1 hereof, and (iv) shall contain
such other terms, conditions, and licenses as are necessary to enable
LICENSEE to fulfill its obligations hereunder. LICENSEE shall
send LICENSOR a copy of every sublicense agreement or other
agreement entered into by LICENSEE in connection with a
sublicense hereunder within thirty (30) days of the execution thereof.
LICENSOR may terminate any such sublicense if there is any
change in the ownership or control of a sublicensee.
3 ROYALTY PAYMENTS, REPORTS AND RECORD-
KEEPING.
3.1 Royalties and Reports on Net Sales. During the term of this
Agreement, LICENSEE agrees to pay LICENSOR an earned royalty
which shall be ten percent (10%) of the Net Selling Price of
Licensed Products which embody, or the manufacture of which
utilizes, any of the rights granted under Section 2.1 hereof, and
which are manufactured by or for LICENSEE and sold, leased, used
or otherwise disposed of by or for LICENSEE or a permitted
sublicensee. Payments under this Section 3.1 shall be made on a
monthly basis and made within 10 days after the end of the calendar
month in which such Licensed Products were sold, leased, used or
otherwise disposed of by or for LICENSEE or a permitted
sublicensee hereunder. Each royalty payment shall be in U.S. dollars
and shall be accompanied by a statement by LICENSEE showing in
reasonable detail the amount of Licensed Products sold, used, leased
or otherwise disposed of by or for LICENSEE and its sublicensees
during the preceding month, any deductions taken or credits applied,
and the currency exchange rate used to report sales made in
currencies other than U.S. dollars. LICENSEE shall use the
exchange rates for buying U.S. dollars in effect on the last day of
each month, as specified in The New York Times. The first such
statement shall cover the period from the Effective Date of this
Agreement to the end of the first calendar month in which a Licensed
Product is sold, used, leased or otherwise disposed of by or for
LICENSEE or its sublicensees. LICENSEE shall also furnish to
LICENSOR at the same time it becomes available to any third party,
a copy of each brochure, price list, advertisement or other marketing
and promotional materials prepared, published or distributed by
LICENSEE or its sublicensees relating to Licensed Products.
LICENSOR shall have the right, but not the obligation, to approve
any use by LICENSEE of its name, logo, or other information about
Licensed Products, and to require the correction of any inaccurate
information.
3.2 Minimum Royalties - Regardless of whether LICENSEE
is selling any Licensed Products, during the term of this Agreement
LICENSEE agrees to pay LICENSOR a [Confidential Information
Omitted and filed separately with the Securities and Exchange
Commission] initial license fee and the non-refundable minimum
royalties (in U.S. Dollars) specified below for each of the stated
periods:
Period Minimum Royalty
[Confidential Information Omitted and filed separately with the
Securities and Exchange Commission]
3.3 Time and Method of Payment. The initial payment under
Section 3.2 shall be paid to LICENSOR within 10 days of the
Effective Date of this Agreement, and each subsequent payment
under Section 3.2 to LICENSOR shall be made on or before January
31 of each license year commencing January 1, 2004. All other
payments shall be due on the date specified in this Agreement, or if
no date is specified, within 30 days of invoice. All payments made
to LICENSOR shall be paid by wire transfer of immediately
available funds to the account of Research Frontiers Incorporated at
Chase Manhattan Bank, 0000 Xxxxxxx Xxxx, Xxxxxxxx, Xxx Xxxx
00000, Account No.: 000-000-000, ABA Wire Code No.: 021 000
021, or to such other account or place, as LICENSOR may specify
in a notice to LICENSEE.
3.4 Sales, Use and Returns. Licensed Products shall be
considered as sold, leased or used and royalties shall accrue on the
earlier of when such Licensed Products are billed out, or when
delivered, shipped or mailed to the customer. If as a result of a
price reduction or a return of Licensed Products previously sold, a
credit or refund to a customer is given on part or all of the sale price
of such Licensed Products, a credit shall be allowed against
royalties accruing thereafter under this Agreement equal to the
royalty paid on that part of the sales price so credited or refunded.
3.5 Recordkeeping. LICENSEE shall keep and shall cause
each sublicensee to keep for six (6) years after the date of
submission of each statement supported thereby, true and accurate
records, files and books of accounts that relate to Licensed
Products, all data reasonably required for the full computation and
verification of the Net Selling Price of Licensed Products,
deductions therefrom and royalties to be paid, as well as the other
information to be given in the statements herein provided for, and
shall permit LICENSOR or its duly authorized representatives, upon
reasonable notice, adequately to inspect the same at any time during
usual business hours. LICENSOR and LICENSEE agree that an
independent certified public accounting firm (selected by
LICENSOR from the largest ten certified public accounting firms in
the United States of America or Russia) may audit such records,
files and books of accounts to determine the accuracy of the
statements given by LICENSEE pursuant to Section 3.1 hereof.
Such an audit shall be made upon reasonable advance notice to
LICENSEE and during usual business hours no more frequently
than annually. The cost of the audit shall be borne by LICENSOR,
unless the audit shall disclose a breach by LICENSEE of any term
of this Agreement, or an underpayment error in excess of two
percent of the total monies paid to LICENSOR by LICENSEE
during the audited period, in which case LICENSEE shall bear the
full cost of such audit. LICENSEE agrees to pay LICENSOR all
additional monies that are disclosed by the audit to be due and
owing to LICENSOR within thirty days of the receipt of the report.
3.6 Customer Referrals. Although LICENSOR is under no
obligation to do so, LICENSOR may from time to time refer
customers to LICENSEE. In the event that such customer purchases,
leases or rents products or services from LICENSEE other than a
Licensed Product upon which a royalty is paid by LICENSEE to
LICENSOR, LICENSEE shall include the details of such
transaction in its monthly report under Section 3.5 hereof, and shall
pay LICENSOR a sales commission equal to 10% of the amount
received from such customer for which a royalty under Section 3.1
hereof is not paid. No such payment shall be due from LICENSEE
to LICENSOR if the referred customer was already a customer of
LICENSEE prior to the date of referral by LICENSOR and
LICENSEE informs LICENSOR of such fact at the time that the
referral by LICENSOR is made.
4 OBLIGATIONS OF LICENSEE.
4.1 Compliance. LICENSEE agrees that, without limitation,
any manufacture, sale, lease, use or other disposition of Licensed
Products that is not in strict accordance with the provisions of this
Agreement shall be deemed a material breach of this Agreement.
4.2 End Users. LICENSEE agrees to require all direct
recipients of Licensed Products to whom Licensed Products are
sold, leased, or otherwise disposed of by LICENSEE or its
sublicensees, to look only to LICENSEE and not to LICENSOR or
its affiliates for any claims, warranties, or liability relating to such
Licensed Products. LICENSEE agrees to take all steps to
reasonably assure itself that Licensed Products sold, leased or
otherwise disposed of by or for LICENSEE is being used for
permitted purposes only.
4.3 Laws and Regulations. LICENSEE agrees that it shall be
solely responsible for complying with all laws and regulations
affecting the manufacture, use and sale or other disposition of
Licensed Products by LICENSEE and its sublicensees, and for
obtaining all approvals necessary from governmental agencies and
other entities. LICENSEE agrees to maintain a file of all such
approvals and to send LICENSOR a copy of all such approvals
(including English translations thereof in the case of approvals
required by any foreign country) within 10 business days of any
written request for such copies by LICENSOR. LICENSEE
represents and warrants to LICENSOR that no approval from any
governmental agency or ministry, or from any third party, is
required to effectuate the terms of this Agreement or the
transactions contemplated hereby.
4.4 Purchase of Components from Others. By virtue of the
disclosure of Technical Information and information, if any,
provided from time to time by LICENSOR to LICENSEE and to its
other licensees, and each of their sublicensees and affiliates, any
component of a Light Valve, including, without limitation,
materials, suspensions, films, polymers, coatings, particle
precursors, and particles (each, a "Component"), which LICENSEE
or its sublicensees makes, has made for it, or purchases from any
third party for use in Licensed Products shall be deemed to have
been manufactured at least in part using the Technical Information
provided by LICENSOR if LICENSEE or any supplier of a
Component to LICENSEE has had access to Technical Information
of any kind of LICENSOR or its licensees and their sublicensees,
consultants, subcontractors, agents or representatives. LICENSEE
and its sublicensees each hereby agrees that (i) all Components shall
be used only in strict accordance with the provisions of this
Agreement, and that such Components may not be used for any
other purpose or resold by LICENSEE or its sublicensees except as
specifically permitted by the license granted in Section 2.1 hereof,
and (ii) LICENSEE and its sublicensees will only look to the
manufacturer or supplier of such Component or other item used by
LICENSEE or its sublicensees and not to LICENSOR or its
affiliates for any claims, warranties, or liability relating to such
Component or other item. LICENSEE acknowledges that
LICENSOR has not made any representations or warranties
regarding the availability of any Component, or the price thereof,
and that in all respects LICENSEE shall deal directly with the
suppliers of such Components and will obtain from them
information regarding availability, pricing, and/or other terms
relating to such Components.
4.5 No Warranties by LICENSOR. LICENSOR does not
represent or warrant the performance of any Licensed Product or of
any material, Component, or information provided hereunder, and
LICENSEE expressly acknowledges and agrees that any such
material, Component or information provided by LICENSOR
hereunder is provided "AS IS" and that LICENSOR makes no
warranty with respect thereto and DISCLAIMS ALL
WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE, WITH RESPECT THERETO, ITS USE OR ANY
INABILITY TO USE IT, OR THE RESULTS OF ITS USE. Except
for any breach of the terms of this Agreement, in no event shall any
party to this Agreement be liable for any damages, whether in
contract or tort (including negligence), including but not limited to
direct, consequential, special, exemplary, incidental and indirect
damages, arising out of or in connection with this Agreement or the
use, the results of use, or the inability to use any Licensed Product,
material, Component or information provided hereunder.
4.6 Analysis. LICENSEE represents and agrees that it will
only incorporate Components received from authorized suppliers
into Licensed Products and for no other purpose, and that
LICENSEE will not directly or indirectly attempt to reverse-
engineer any material provided to it hereunder by LICENSEE or any
supplier of any Component.
4.7 Personnel. LICENSEE agrees to assign personnel from its
technical staff who shall be responsible for the development of
Licensed Products during the term of this Agreement.
4.8 Promotional Activities. [Confidential Information Omitted
and filed separately with the Securities and Exchange Commission].
In addition, LICENSEE shall promptly develop and maintain a web
site relating to its business which prominently features
LICENSOR's SPD technology and LICENSEE's relationship to
LICENSOR, and shall participate at industry trade shows and
conferences and/or engage in other marketing and promotional
activities reasonably necessary to promote LICENSOR's SPD
technology and LICENSEE's business relating thereto.
5 TRADEMARKS.
5.1 Trademarks. All trademarks or service marks that either
party may adopt and use for Licensed Products or other products
incorporating Light Valves are and shall remain the exclusive
property of the adopting party, and the other party shall not obtain
any rights and license to such marks under this Agreement, but may
inform others that the adopting party has licensed or produced
Licensed Products or products incorporating Light Valves under
such xxxx or marks, and may use the adopting party's logo in
connection therewith. LICENSOR may require LICENSEE or its
permitted sublicensees to indicate on packaging that such product is
licensed from Research Frontiers Incorporated or to otherwise
include language and/or designations approved by LICENSOR
indicating an affiliation with Research Frontiers Incorporated.
6 INSURANCE AND INDEMNIFICATION.
6.1 Insurance. LICENSEE shall maintain at all times ample
product liability and other liability insurance covering its operations
relating to the subject matter of this Agreement and shall name
LICENSOR as an additional insured. Upon request, LICENSEE
shall provide LICENSOR of evidence of such insurance.
6.2 Indemnification. LICENSEE, and its affiliates, successors
and assigns and sublicensees (each, an "Indemnifying Party"), each
hereby indemnify and agree to hold harmless LICENSOR and its
shareholders, officers, directors, agents and employees (each, an
"Indemnified Party"), against any liability, damage, loss, fine,
penalty, claim, cost or expense (including reasonable costs of
investigation and settlement and attorneys', accountants' and other
experts' fees and expenses) arising out of any action or inaction by
any Indemnifying Party relating to this Agreement including an
Indemnifying Party's manufacture, sale, use, lease or other
disposition of Licensed Products, and related materials, or other use
of the information and rights granted hereunder. Any knowledge of
LICENSEE's or its sublicensee's activities by LICENSOR or its
representatives shall in no way impose any liability on LICENSOR
or reduce the responsibilities of LICENSEE hereunder or relieve it
from any of its obligations and warranties under this Agreement.
7 FUTURE PATENTS.
7.1 Future Patents. Each party, at its cost, shall have the right
to file patent applications in the United States and in foreign
countries covering any invention made by such party.
7.2 Improvements and Modifications. (a) Any future
improvements or modifications invented or developed by or on
behalf of LICENSEE, LICENSEE's sublicensees and LICENSOR
after the Effective Date of this Agreement, if any, which relate in
any way to or are useful in the design, operation, manufacture and
assembly of Licensed Products, and/or to the suspensions or other
components used or usable in Licensed Products shall not be
included in this Agreement. Upon written request by the non-
inventing party, LICENSOR and LICENSEE shall negotiate with
each other regarding the grant of nonexclusive rights and licenses to
use such improvements and modifications, but neither party shall be
obligated to grant such rights and licenses to one another.
(b) During the term of this Agreement each of the parties
hereto agrees to inform the other in writing (without any obligation
to reveal details which would be confidential information), at least
as frequently as once a year in January of each calendar year, if any
significant improvements or modifications have been made relating
to the subject matter of this Agreement, and as to the general nature
of any such improvements and modifications.
(c) Notwithstanding the foregoing, LICENSOR may, but shall
not be required to, voluntarily and without additional cost to
LICENSEE disclose certain information relating to future
improvements and modifications and license to LICENSEE rights in
such certain future improvements and modifications, and any
information so disclosed will be considered Technical Information
which LICENSEE shall be obligated to keep confidential pursuant
to Section 12.1 of this Agreement. In connection therewith,
LICENSOR, may voluntarily add patents and/or patent applications
to Schedule A hereof. No disclosure of any information by
LICENSOR shall in any way establish a course of dealing or
otherwise require LICENSOR to make any future disclosure of
information under this Agreement.
7.3 Foreign Patent Applications. During the term of this
Agreement, LICENSEE shall have the right to designate that any
patent application now or hereafter listed on or incorporated into
Schedule A shall be filed or maintained in any foreign country
included in the Licensed Territory. If so designated and if legally
possible to do so, LICENSOR agrees to promptly file, prosecute and
maintain such applications and resulting patents, and LICENSEE
shall pay to LICENSOR the complete cost, including reasonable
attorney's fees, to file, prosecute and maintain any such patent
application and resulting patents specifically so designated by
LICENSEE.
8 TECHNOLOGY TRANSFER.
8.1. Materials. Upon request by LICENSEE, during the term
of this Agreement and when mutually convenient to LICENSOR and
LICENSEE, LICENSOR shall supply LICENSEE with small
quantities of materials related to Licensed Products for experimental
use only by LICENSEE, and shall charge LICENSEE $750 per
man/day plus the cost of any other materials used in making such
materials, plus the cost of shipping such materials to LICENSEE.
Each invoice submitted by LICENSOR for such service shall
include detailed explanations of the charges, and, if requested by
LICENSEE, copies of receipts. The parties acknowledge that
LICENSOR has no obligation to transfer to LICENSEE any
Technical Information other than as may be embodied in such
sample materials, and that, other than sample materials, if any, that
may be supplied by LICENSOR as aforesaid, LICENSEE will be
acquiring materials from authorized suppliers other than
LICENSOR.
8.2 Inquiries. LICENSEE and LICENSOR may also at any
time during the term of this Agreement make reasonable inquiry by
telephone, facsimile or mail to one another in regard to any
information or data furnished pursuant to this Agreement.
8.3 Visits. During all visits by either party to the facilities of
the other party, visitors shall comply with all reasonable rules of the
host company, and each party to this Agreement will indemnify and
hold the other party harmless from any liability, claim or loss
whatsoever (i) for any injury to, or, death of, any of its employees or
agents while such persons are present at the facility of the other
party; and (ii) for any damages to its own property or to the property
of any such employee or agent which may occur during the presence
of any such person at the facility of the other party, regardless of
how such damage occurs.
8.4 Sole Purpose. Any documentation or information supplied
pursuant to this Agreement by either party to the other shall be used
solely for the purposes set forth in this Agreement.
9 INTELLECTUAL PROPERTY PROTECTION
RESPONSIBILITIES.
9.1 Proprietary Rights: Notices. Each party shall provide
appropriate notices of patents, or other similar notice of the patent
rights of the other party on all products utilizing the patented
inventions of the other party. Either party may add its own patent
notice to any copy or embodiment which contains its patented
inventions.
9.2 LICENSOR Exclusive Owner. LICENSEE hereby
acknowledges LICENSOR as purporting to be the sole and
exclusive owner of the patents and patent applications listed on
Schedule A, and that, except for the rights granted hereunder,
LICENSEE shall not have any rights or attempt to assert any
ownership rights in and to those patents and patent applications.
10 TERM AND TERMINATION.
10.1 Term. The term of this Agreement shall extend from the
Effective Date of this Agreement to the date of termination of this
Agreement. Unless sooner terminated or extended, as herein
provided for below, this Agreement shall terminate upon the
expiration of the later of (A) the last to expire of the patents now or
hereafter listed in Schedule A hereof, and (B) the expiration of the
period in which LICENSEE is obligated to maintain confidential
Technical Information of LICENSOR pursuant to Section 12.1
hereof.
10.2 Termination by LICENSEE. LICENSEE may terminate
this Agreement effective as of December 31, 2007 or as of any
anniversary thereof by giving LICENSOR prior notice thereof
unless sooner terminated as hereinafter provided. Such notice shall
be made in writing and shall be given between 60 and 90 days prior
to the effective date for which such termination is to be effective. If
LICENSEE decides to terminate this Agreement for any reason,
LICENSEE shall provide LICENSOR, along with the
aforementioned notice of termination, with a written report
describing the reasons for such termination.
10.3 Termination by LICENSOR. LICENSOR may terminate
this Agreement at any time effective as of December 31, 2007 or as
of any anniversary thereof upon at least 30 days' notice to
LICENSEE for any reason, provided, however, that LICENSOR
shall give LICENSEE at least one years' notice of any early
termination under this Section 10.3 if LICENSEE is producing and
selling Licensed Products hereunder. Notwithstanding the
foregoing, LICENSOR may terminate this Agreement at any time
upon at least 30 days' notice to LICENSEE if LICENSEE shall have
failed to make any payment when due or at any time breach any
material term of this Agreement and such payment is not made or
such breach is not cured within any applicable cure period specified
in Article 11 of this Agreement, or repeatedly provide inaccurate
reports hereunder, or if there has been a cessation by LICENSEE of
general operations or of work related to Licensed Products.
10.4 Effect of Termination. If this Agreement expires or is
terminated for any reason whatsoever, in addition to any other
remedies which one party may have against the other: (1) all of
LICENSEE's rights and licenses under this Agreement shall cease,
and LICENSEE shall immediately return to LICENSOR all
Technical Information furnished to LICENSEE under this
Agreement, together with all reproductions, copies and summaries
thereof; provided, however, that LICENSEE may retain solely for
archival purposes one copy of all such documents in its legal
department files, (2) at LICENSOR's option, LICENSEE shall,
within 30 days of the date of such termination, either (A) sell and
deliver to LICENSOR at LICENSEE's direct cost of manufacture
any Licensed Products which shall then be in the possession of
LICENSEE, and, if requested by LICENSOR, LICENSEE shall
finish and deliver to LICENSOR any Licensed Products in the
process of manufacture as soon as possible and, in any case, not
later than 30 days after receiving LICENSOR's request, and/or (B)
with respect to any unsold inventory and work in the process of
manufacture, to complete such work in process and sell any
remaining inventory during the period not to exceed six months
from the date of termination or expiration of this Agreement
provided that at the completion of such six-month period,
LICENSEE shall promptly destroy and dispose of any Licensed
Products (and Licensed Products in the process of manufacture) not
sold under this Section 10.4 and (3) if this Agreement is terminated
for any reason on or before December 31, 2007, LICENSEE hereby
grants to LICENSOR a nonexclusive, royalty-free, irrevocable,
worldwide license with the right to grant sublicenses to others to
utilize all technical information, improvements and/or modifications
(whether or not the subject of patents or pending patent
applications) developed or invented by or on behalf of LICENSEE
and/or its sublicensees, subcontractors, or agents hereunder through
the date of such termination of this Agreement relating to Light
Valves, or Licensed Products, and upon such termination,
LICENSEE shall provide LICENSOR in reasonable detail complete
information regarding such technical information, improvements
and/or modifications. The foregoing license shall be self-
effectuating, but LICENSEE agrees upon written notice by
LICENSOR at any time hereafter to deliver to LICENSOR within
30 days of such notice any document or other instrument reasonably
requested by LICENSOR to convey such license rights to
LICENSOR such as, by way of example, confirmations or
instruments of conveyance or assignment. No termination of this
Agreement by expiration or otherwise shall release LICENSEE or
LICENSOR from any of its continuing obligations hereunder, if
any, or limit, in any way any other remedy one party may have
against the other party. Notwithstanding the foregoing,
LICENSEE's obligations to LICENSOR under Sections 3.1, 3.5,
4.2, 4.3, 4.4, 4.5, 4.6, 6.1, 6.2, 7.2, 8.3, 8.4, 10.4, 12.1, and Articles
13 and 14 shall survive any termination or expiration of this
Agreement.
11 EVENTS OF DEFAULT AND REMEDIES.
11.1 Events of Default. Each of the following events shall
constitute an "Event of Default" under this Agreement:
11.1.1 (a) A party's failure to make any payment due in a
timely manner or a party's material breach or material failure to
punctually perform any of its duties and obligations under this
Agreement, which material breach or failure, if curable, remains
uncured for thirty (30) days after written notice of such breach or
failure is received by the breaching party; or (b) a material
misrepresentation is made by a party in any representation or
warranty contained in this Agreement and the misrepresented facts
or circumstances, if curable, remain uncured thirty (30) days after
written notice of such misrepresentation is received by the
breaching party; and, in either case, if such breach or
misrepresentation is not curable, termination shall occur thirty (30)
days after such misrepresentation or breach at the option of the non-
breaching party; or
11.1.2 The failure by a party upon request to provide the
other party with adequate assurances of its performance of all
obligations under this Agreement upon: (a) such first party's filing
of a voluntary petition in bankruptcy; (b) the filing of any
involuntary petition to have such first party declared bankrupt which
has not been dismissed within ninety (90) days of its filing; (c) the
appointment of a receiver or trustee for such first party which has
not been rescinded within ninety (90) days of the date of such
appointment; or (d) such first party otherwise becoming insolvent or
otherwise making an assignment for the benefit of creditors.
11.2 Default by a Party. If there occurs an Event of Default
with respect to a party, the other party may:
(a) seek damages; and/or
(b) seek an injunction or an order for mandatory or specific
performance; and/or
(c) terminate this Agreement and the licenses granted to
LICENSEE hereunder whereupon the non-defaulting
party shall have no further obligations under this
Agreement except those which expressly survive
termination, and except with respect to royalty payments
due and owing to LICENSOR as of the termination date
or any subsequent period specified in Section 10.4.
12 CONFIDENTIALITY.
12.1 Confidential Information. (a) LICENSEE agrees for
itself, its sublicensees, and their employees and agents that for
twenty (20) years from the later of the Effective Date of this
Agreement or the latest date of its receipt of information disclosed
to LICENSEE by LICENSOR pursuant to this Agreement, such
information shall be held in confidence; provided, however, there
shall be no obligation to treat as confidential information which is
or becomes available to the public other than through a breach of
this obligation, or which was already possessed by LICENSEE in
writing (or otherwise provable to be in the possession of
LICENSEE) prior to the Effective Date of this Agreement (and was
not received from LICENSOR) or which is shown by LICENSEE to
have been received by it from a third party who had the legal right to
so disclose it without restrictions and without breach of any
agreement with LICENSOR or its licensees. LICENSOR shall affix
an appropriate legend on all written documentation given to
LICENSEE which contains confidential information. LICENSEE
acknowledges that the list of patent applications contained on
Schedule A is confidential information of LICENSOR. If
confidential information is otherwise conveyed orally by
LICENSOR, LICENSOR shall specify to LICENSEE at the time
such information is being conveyed (or in a subsequent letter
referring to the conversation) that the information conveyed is
confidential. It is understood and agreed that, unless otherwise
provided in a separate agreement between LICENSEE and
LICENSOR, LICENSEE has no obligation hereunder to provide
LICENSOR with any confidential or proprietary information, and
that LICENSOR shall have no obligation hereunder to LICENSEE
to maintain in confidence or refrain from commercial or other use of
any information which LICENSOR is or becomes aware of under
this Agreement. The terms and provisions of this Agreement or any
other agreement between the parties shall not be considered
confidential except that LICENSEE may not disclose the minimum
annual royalty payments specified in Article 3 hereof without
LICENSOR's prior written consent, and the parties hereto
acknowledge that, pursuant to the Securities Exchange Act of 1934,
as amended, and the regulations promulgated thereunder,
LICENSOR may file copies of this Agreement with the Securities
and Exchange Commission and with NASDAQ and with any other
stock exchange on which LICENSOR's securities may be listed.
LICENSEE agrees that for the period of time during which
LICENSEE is obligated to keep information confidential hereunder,
LICENSEE will not make, use, sell, lease or otherwise dispose of
products using or directly or indirectly derived from Licensed
Products, Light Valves, or Components, or which otherwise
comprise suspended particles, which when subjected to a suitable
electric or magnetic field, orient to produce a change in the optical
characteristics of the suspension ("SPD Technology") unless an
agreement between LICENSOR and LICENSEE permitting it to do
so is in full force and effect and the royalties, if any, provided in
such agreement are being paid to LICENSOR on such products.
The foregoing restriction shall not apply to products (i) which do
not directly or indirectly incorporate SPD Technology, such as, but
not limited to, liquid crystal devices, or electrochromic devices, or
(ii) which incorporate technology involving suspended particles,
which when subjected to a suitable electric or magnetic field, orient
to produce a change in the optical characteristics of the suspension
but which is independently developed and which is not in any way
directly or indirectly derived from any Technical Information of
LICENSOR or its licensees, sublicensees, or any of their affiliates.
LICENSEE shall have the burden of proving by clear and
convincing evidence that the availability of any exception of
confidentiality exists or that the foregoing restrictions do not apply
to a particular product. Nothing contained in this section, however,
shall be construed as granting LICENSEE any rights or licenses
with respect to any Technical Information or patents of LICENSOR
or its other licensees or their sublicensees.
(b) LICENSEE will have the right to provide materials to, and
to disclose information to, a subcontractor relating to this
Agreement; provided, however, that LICENSEE shall only disclose
such information as is strictly necessary to enable said subcontractor
to perform its manufacturing task, and provided that prior to
disclosing any information to said subcontractor, said subcontractor
has signed a secrecy agreement with LICENSEE at least as
protective of LICENSOR's Technical Information as the provisions
of this Agreement, including, without limitation, said
subcontractor's specific agreement to be bound by the provisions of
Section 12.1 hereof to the same extent as LICENSEE. For such
purposes, LICENSEE may develop a standard form of secrecy
agreement for LICENSOR's approval, after which LICENSEE may
use such secrecy agreement with all subcontractors without
LICENSOR's prior approval of the secrecy agreement being
necessary. LICENSEE shall have all subcontractors sign said
secrecy agreement prior to the disclosure of Technical Information
to said subcontractor, and LICENSEE shall send LICENSOR a copy
of every such secrecy agreement within thirty (30) days after the
execution thereof.
13 WARRANTIES AND REPRESENTATIONS.
13.1 Reciprocal Representations. Each party represents and
warrants to the other that:
13.1.1 Valid Agreement. The execution and delivery of this
Agreement by the officer or representative so doing, and the
consummation of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action by LICENSOR
and LICENSEE and this Agreement is a valid and binding
obligation enforceable against the parties in accordance with its
terms, except to the extent limited by bankruptcy, insolvency,
moratorium and other laws of general application relating to general
equitable principles;
13.1.2 No Conflicts. Nothing herein conflicts with its rights
and obligations pursuant to any agreement by a party and any other
entity; and
13.1.3 Publicity. The parties shall have the right to use non-
confidential information, including but not limited to information
concerning this Agreement, for marketing, sales, technical
assistance, investor relations, disclosure and public relations
purposes, and that information permitted to be disclosed by a party
under this Section 13.1.3 may appear on such party's (or its
subsidiaries' or sublicensees') Internet web site, along with links to
the Internet web sites, and specific pages therefrom, of the other
party and its subsidiaries and sublicensees.
13.2 LICENSOR Representations. LICENSOR represents
and warrants, for the benefit of LICENSEE, that:
13.2.1 Title. As of the date hereof, LICENSOR represents
and warrants that it has the right to convey the rights and licenses
granted by this Agreement, and otherwise to perform its obligations
under this Agreement. LICENSOR has caused its employees who
are employed to do research, development, or other inventive work
to disclose to it any invention or information within the scope of this
Agreement and to assign to it rights in such inventions and
information in order that LICENSEE shall receive, by virtue of this
Agreement, the licenses granted to it under Section 2.1 hereof.
13.2.2 Infringement. As of the date hereof, LICENSOR is not
aware of any claim for patent infringement or the misappropriation
of trade secrets, being asserted against it by any third party; or of
any infringement of the patents listed on Schedule A hereto by any
entity.
13.2.3 Patents in Force. To the best of LICENSOR's
knowledge, all of the patents listed on Schedule A hereto are
currently in force.
13.3 No Warranty. LICENSOR and LICENSEE make no
guaranty or warranty to one another under this Agreement (a) that
LICENSEE will be able to develop, manufacture, sell or otherwise
commercialize Licensed Products, or (b) as to the validity of any
patent.
14 MISCELLANEOUS.
14.1 Applicable Law. This Agreement shall be interpreted,
construed, governed and enforced in accordance with and governed
by the laws of the State of New York, and LICENSOR and
LICENSEE hereby submit to the exclusive jurisdiction of the state
or federal courts located in the County of Nassau and State of New
York for such purposes.
14.2 Confidentiality In Court Proceeding. In order to protect
and preserve the confidential information of a party which the
parties recognize may be exchanged pursuant to the provisions of
this Agreement, the disclosing party may request, and the receiving
party shall not oppose, the court in any action relating to this
Agreement to enter a protective order to protect information which
is confidential information under Section 12.1 and to seal the record
in the action or to hold the proceedings, or portion of the
proceedings, in camera; provided, that the requested terms do not
prejudice the receiving party's interests. Nothing, however, shall
preclude either party from thereafter moving to unseal its own
records or to have matter and information designated as confidential
under any relevant protective order designated otherwise in
accordance with the circumstances as they shall appear at that time.
14.3 Severability. If any provision of this Agreement is
declared or found to be illegal, unenforceable or void, the parties
shall negotiate in good faith to agree upon a substitute provision that
is legal and enforceable and is as nearly as possible consistent with
the intentions underlying the original provision. If the remainder of
this Agreement is not materially affected by such declaration or
finding and is capable of substantial performance, then the
remainder shall be enforced to the extent permitted by law.
14.4 Waiver. Unless agreed to by the parties in writing to the
contrary, the failure of either party to insist in any one or more
instances upon the strict performance of any one or more of the
provisions of this Agreement, or to exercise any right contained in
this Agreement or provided by law, shall not constitute or be
construed as a waiver or relinquishment of the performance of such
provision or right or the right subsequently to demand such strict
performance or exercise of such right, and the rights and obligations
of the parties shall continue unchanged and remain in full force and
effect.
14.5 Captions. The captions and headings in this Agreement
are inserted for convenience and reference only and in no way
define or limit the scope or content of this Agreement and shall not
affect the interpretation of its provisions.
14.6 Assignment. This Agreement shall be binding on and
shall inure to the benefit of the parties and their successors and
assigns. However, LICENSEE agrees that it shall not assign this
Agreement or its rights hereunder without the prior written consent
of LICENSOR except to a successor to substantially all of its
business relating to Light Valves and whose obligations hereunder
are guaranteed to LICENSOR by LICENSEE. LICENSOR may
assign all of its rights and obligations hereunder to any successor to
any of its business interests or to any company controlling or
controlled by LICENSOR. All assignees shall expressly assume in
writing the performance of all the terms and conditions of this
Agreement to be performed by the assigning party, and an originally
signed instrument of such assumption and assignment shall be
delivered to the non-assigning party within 30 days of the execution
of such instrument.
14.7 Schedules. All Schedules attached to this Agreement
shall be deemed to be a part of this Agreement as if set forth fully in
this Agreement.
14.8 Entire Agreement. This Agreement constitutes the entire
understanding and agreement between LICENSOR and LICENSEE
with respect to the subject matter hereof, supersedes all prior
agreements, proposals, understandings, letters of intent, negotiations
and discussions with respect to the subject matter hereof and can be
modified, amended, supplemented or changed only by an agreement
in writing which makes specific reference to this Agreement and
which is executed in writing by the parties; provided, however, that
either party may unilaterally waive in writing any provision
imposing an obligation on the other.
14.9 Notices. Any notice required or permitted to be given or
made in this Agreement shall be in writing and shall be deemed
given on the earliest of (i) actual receipt, irrespective of method of
delivery, (ii) on the delivery day following dispatch if sent by
express mail (or similar next day courier service), or (iii) on the
sixth day after mailing by registered or certified air mail, return
receipt requested, postage prepaid and addressed as follows:
LICENSOR: Xxxxxx X. Xxxx, Chairman and CEO
Research Frontiers Incorporated
000 Xxxxxxxxx Xxxx Xxxxx
Xxxxxxxx, Xxx Xxxx 00000-0000 XXX
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
LICENSEE: Xxxxx Xxxxxxx, attorney-in-fact
LEMINUR LIMITED.
Archiepiskopou Makariou III, 80
Xxxxx Xxxxxxxx, 5-th floor, Xxxx/Xxxxxx 000
X.X. 0000, Xxxxxxx, Xxxxxx
Facsimile: 7 095 133 5468
Telephone: 0 000 000 0000,x0 000 000 0000
or to such substitute addresses and persons as a party may designate
to the other from time to time by written notice in accordance with
this provision.
14.10 Bankruptcy Code. In the event that either party should
file a petition under the federal bankruptcy laws, or that an
involuntary petition shall be filed against such party, the parties
intend that the non-filing party shall be protected in the continued
enjoyment of its rights hereunder to the maximum feasible extent
including, without limitation, if it so elects, the protection conferred
upon licensees under section 365(n) of Title 17 of the U.S. Code.
Each party agrees that it will give the other party immediate notice
of the filing of any voluntary or involuntary petition under the
federal bankruptcy laws.
14.11 Construction. This Agreement and the exhibits hereto
have been drafted jointly by the parties and in the event of any
ambiguities in the language hereof, there shall no be inference
drawn in favor or against either party.
14.12 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original,
but all of which shall constitute one and the same instrument.
14.13 Status of the Parties. The status of the parties under this
Agreement shall be solely that of independent contractors. No party
shall have the right to enter into any agreements on behalf of the
other party nor shall it represent to any person that it has such right
or authority.
The parties, through their duly authorized representatives, and
intending to be legally bound, have executed this Agreement, as of
the date and year first above written, whereupon it became effective
in accordance with its terms.
RESEARCH FRONTIERS INCORPORATED
By:_____________________________________________
Xxxxxx X. Xxxxxx, President
Date: December 11, 2003
LEMINUR LIMITED.
By:___________________________________________
Xxxxx Xxxxxxx, attorney-in-fact
Date: November 28, 2003
Schedule A
(As of December 11, 2003)
LIST OF UNITED STATES, INTERNATIONAL AND
FOREIGN PATENTS AND PATENT APPLICATIONS
(*-indicates a patent with respect to non-US filings)
Date Expiration
Patents in the United States Issued Date
4,772,103 Xxxxxx X. Xxxx
"Light Valve Containing an Improved
Suspension, and Liquids Therefor" 9/20/88 8/8/06
5,002,701 Xxxxxx X. Xxxx
"Light Polarizing Materials and
Suspensions Thereof" 3/26/91 3/26/08
4,877,313 Xxxxxx X. Xxxx et al
"Light Polarizing Materials and
Suspensions Thereof" 10/31/89 2/10/09
5,093,041 Xxxxxx X. Check, III et al
"Light-Polarizing Material Based on
Ethylene-diamine Polyacetic Acid
Derivatives" 3/03/92 7/30/10
5,111,331 Xxxx Xxxxxxxxx
"Electro-Optical Light Modulator"5/05/92 7/5/09
5,130,057 Xxxxxx X. Xxxx
"Light Polarizing Materials and
Suspensions Thereof" 7/14/92 10/31/06
5,279,773 Xxxxxx X. Xxxx
"Light Valve Incorporating A Suspension
Stabilized With A Block Polymer" 1/18/94 3/23/12
Schedule A (Continued)
Date Expiration
Patents in the United States Issued Date
5,325,220 Xxxxxx X. Xxxx
"Light Valve With Low Emissivity
Coating As Electrode" 6/28/94 3/9/13
5,463,491 Xxxxxx X. Check III
"Light Valve Employing a Film Comprising
An Encapsulated Liquid Suspension And
Method of Making Such Film" 10/31/95 11/6/12
5,463,492 Xxxxxx X. Check III
"Light Modulating Film of Improved
Clarity For A Light Valve" 10/31/95 11/6/12
5,461,506 Xxxxxx X. Check III et al
"Light Valve Suspensions Containing A
Trimellitate Or Trimesate And Light
Valves Containing The Same"10/24/95 5/11/13
5,467,217 Xxxxxx X. Check III et al
"Light Valve Suspensions and Films
Containing UV Absorbers and Light
Valves Containing The Same" 11/14/95 5/11/13
5,516,463 Xxxxxx X. Check III et al
"Method of Making Light
Polarizing Particles" 05/14/96 07/08/14
5,650,872 Xxxxxx X. Xxxx et al
"Light Valve Containing
Ultrafine Particles" 07/22/97 07/22/14
5,728,251 Xxxxxx X. Check, III
"Light Modulating Film of Improved
UV Stability For a Light Valve" 03/17/98 09/27/15
Schedule A (Continued)
Date Expiration
Patents in the United States Issued Date
5,764,402 Xxxx-Xxxxxxxx Xxxxxx; Xxxxxx Xxxxx
"Optical Cell Control System" 06/09/98 xx/xx/xx
5,838,482 Xxxxxx Xxxxxxxxx; Xxxxxx Xxxxxxx
"Optical Cell" 11/17/98 xx/xx/xx
5,691,849 Xxxx Xxxxxxx; Xxxx-Xxxxxxxx Xxxxxx; Xxxxx
Xxxx
"Rear-View Assembly for a Vehicle
and an Adaptor Therefor" 11/25/97 xx/xx/xx
6,114,405 Xxxxxxx Xxxxxx et al
"Ultraviolet Radiation-Curable
Light-Modulating Film for a Light
Valve, and Method of Making Same"09/05/00 10/09/17
6,156,239 Xxxxxx X. Xxxx et al
"Light Polarizing Material, Liquid
Suspensions and Films Thereof, and Light
Valve Incorporating Same" 12/05/00 2/26/19
6,271,956B1 Xxxxxx X. Xxxx et al
"Method and Materials for Enhancing the
Adhesion of SPD Films and Light Valves
Comprising Same" 08/07/01 03/02/20
6,301,040 Xxxxxxxxxx Xxxxxxxxxx et al
"SPD Films Having Improved Properties and
Light Valves Comprising Same" 10/09/01 05/24/20
6,334,967 B1 Xxxxxx X. Xxxx et al
"Light Polarizing Particles of Improved
Particle Size Distribution" 01/01/02 12/21/20
(See also listing for PCT/US99/15508)
6,416,827 Xxxxxxxxxx Xxxxxxxxxx et al
"SPD Films and Light Valves
Comprising Same"07/09/02 [10/27/20]
6,429,961B1 Xxxxxx X. Xxxxxx et al
"Methods for Retrofitting Windows With Switchable
and Non-Switchable Window Enhancements and
Retrofitted Windows Produced Thereby" 08/06/02 10/03/20
Date Expiration
Patents in the United States Issued Date
6,517,746 Xxxxxx X. Xxxx et al.
"Polyhalide Particles and Light Valves
Comprising Same" 02/11/03 01/05/21
6,522,446 Xxxxxx X. Xxxx
"Anisometrically Shaped Metal Particles,
Liquid Suspensions and Films Thereof And
Light Valves Comprising Same" 02/18/03 04/25/21
6,529,312B1 Xxxxxx X. Xxxx
"Anisometrically Shaped Carbon and/or
Graphite Particles, Liquid Suspensions and Films
Thereof And Light Valves
Comprising Same" 03/04/03 06/07/19
[See also U.S. Patent Application No. 10/330,645 filed
December 27, 2002, a continuation-in-part of this
patent]
PENDING UNITED STATES APPLICATIONS
Serial Number Filing Date
[Confidential Information Omitted and filed separately with the Securities and
Exchange Commission]
