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Execution Copy
PATENT LICENSE AGREEMENT
Effective as of June 30, 2000, LUCENT TECHNOLOGIES GRL CORPORATION, a Delaware
corporation ("LUCENT-GRL"), having an office at Suite 105, 14645 N.W. 77th
Avenue, Miami Lakes, Florida 33014-2569, and INTERMAGNETICS GENERAL CORPORATION,
a New York corporation ("IGC"), having an office at 450 Old Niskayuna Road,
Latham, New York 12110-0461 agree as follows:*
ARTICLE I
GRANTS OF LICENSES
1.01 Grant
(a) LUCENT-GRL grants to IGC under LUCENT's PATENTS personal,
nonexclusive and non-transferable licenses for:
LICENSED PRODUCTS.
(b) IGC grants to LUCENT-GRL under IGC's PATENTS personal, nonexclusive,
royalty-free and non-transferable licenses for:
LICENSED PRODUCTS.
1.02 Duration and Extent
(a) All licenses granted herein by LUCENT-GRL to IGC under any patent
and/or application shall continue for the entire unexpired term of such patent
or term for any patents issuing from such applications, or for as much of such
term as, and to the maximum extent that, LUCENT-GRL has the right to grant.
(b) All licenses granted herein by IGC to LUCENT-GRL under any patent
and/or application shall continue for the entire unexpired term of such patent
or term for any patents issuing from such applications, or for as much of such
term as, and to the maximum extent that, IGC has the right to grant.
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*Any term in capital letters which is defined in the Definitions Appendix shall
have the meaning specified therein.
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1.03 Scope
(a) The licenses granted herein are licenses to (i) make, have made, use,
lease, offer to sell, sell and import LICENSED PRODUCTS; (ii) make, have made,
use and import machines, tools, materials and other instrumentalities, insofar
as such machines, tools, materials and other instrumentalities are involved in
or incidental to the development, manufacture, testing or repair of LICENSED
PRODUCTS which are or have been made, used, leased, owned, sold or imported by
the grantee of such license; and (iii) convey to any customer of the grantee,
with respect to any LICENSED PRODUCT which is sold or leased by such grantee to
such customer, rights to use and resell such LICENSED PRODUCT as sold or leased
by such grantee (whether or not as part of a larger combination); provided,
however, that no rights may be conveyed to customers with respect to any
invention which is directed to (1) a combination of such LICENSED PRODUCT (as
sold or leased) with any other product, (2) a method or process which is other
than the inherent use of such LICENSED PRODUCT itself (as sold or leased), or
(3) a method or process involving the use of a LICENSED PRODUCT to manufacture
(including associated testing) any other product.
(b) Licenses granted herein to IGC are not to be construed either (i) as
consent by the grantor to any act which may be performed by the grantee, except
to the extent impacted by a patent licensed herein to the grantee, or (ii) to
include licenses to contributorily infringe or induce infringement under U.S.
law or a foreign equivalent thereof.
(c) The grant of each license hereunder includes the right to grant
sublicenses within the scope of such license to a Party's RELATED COMPANIES for
so long as they remain its RELATED COMPANIES. Any such sublicense may be made
effective retroactively, but not prior to the effective date hereof, nor prior
to the sublicensee's becoming a RELATED COMPANY of such Party.
(d) The grant of each license hereunder also includes the right of a
Party to sublicense (within the scope of its own licenses) any business which is
divested by that Party or any of its RELATED COMPANIES provided that the
sublicense is granted within sixty (60) days of divestiture and the divested
business is itself a legal entity at the time of divestiture or within sixty
(60) days thereafter. Such sublicense may continue for so long as the divested
business remains a legal entity and shall extend only to the LICENSED PRODUCTS
[*] and only for the patents of the non-divesting Party [*]. Furthermore, any
sublicense shall not extend to the products sold or services furnished by a
third party which acquires the divested business, even if they are of the same
kind or similar to those of the divested business and even if made, sold or
provided by the divested business. Any payment obligations of a divesting Party
under this Agreement shall continue in effect for all LICENSED PRODUCTS,
including the LICENSED PRODUCTS of the divested business. The divested business
shall be jointly and severally liable with the divesting Party for the licensee
fees payable on account of the LICENSED PRODUCTS of the divested business.
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1.04 Ability to Provide Licenses
(a) LUCENT-GRL has received the rights to grant the licenses and releases
under LUCENT-GRL's PATENTS herein granted to IGC.
(b) It is recognized that certain past actions of the Parties to this
Agreement, such as the assignment of title to any invention or patent, or the
granting of any licenses, may limit their ability to provide licenses hereunder.
In particular, prior to the execution of this Agreement, a Party may have
limited by contract its ability to provide licenses hereunder with respect to
certain patents or technologies. A Party's failure to meet any obligation
hereunder due to any such actions shall not constitute a breach of this
Agreement, provided that such assignment or granting of licenses was made for
bona fide business purposes and not for the purpose of frustrating or preventing
the grant of licenses hereunder.
(c) A Party's failure to meet any obligation hereunder, due to the
assignment of title to any invention or patent, or the granting of any licenses,
to the United States Government or any agency or designee thereof pursuant to a
statute or regulation of, or contract with, such Government or agency, shall not
constitute a breach of this Agreement.
1.05 Joint Inventions
(a) There are countries (not including the United States) which require
the express consent of all inventors or their assignees to the grant of licenses
or rights under patents issued in such countries for joint inventions.
(b) Each Party shall give such consent, or shall obtain such consent from
its RELATED COMPANIES, its employees or employees of any of its RELATED
COMPANIES, as required to make full and effective any such licenses and rights
respecting any joint invention granted to the grantee hereunder by such Party
and by another licensor of such grantee.
(c) Each Party shall take steps which are reasonable under the
circumstances to obtain from third parties whatever other consents are necessary
to make full and effective such licenses and rights respecting any joint
invention purported to be granted by it hereunder. If, in spite of such
reasonable steps, such Party is unable to obtain the requisite consents from
such third parties, the resulting inability of such Party to make full and
effective its purported grant of such licenses and rights shall not be
considered to be a breach of this Agreement.
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1.06 Publicity
(a) [*]
(b) [*]
ARTICLE II
LICENSE FEES AND PAYMENTS
2.01 License Fees
In consideration of the releases set forth in Section 4.09 and in payment
for the grant of rights hereunder by LUCENT to IGC as of the Effective Date of
this Agreement, IGC shall pay to LUCENT in lieu of royalties the payments set
forth in subsections (a) and (b) below.
(a) An up-front license fee of [*] United States dollars (U.S. $[*]) that
is payable in two (2) installment payments as follows:
(i) a sum of [*] United States dollars (U.S. $[*]) payable upon
execution of this Agreement; and
(ii) a sum of [*] United States dollars (U.S. $[*]) payable on or
before September 1, 2001.
(b) a licensee fee payable in warrants in the form of a grant to
Lucent-GRL of one hundred thousand (100,000) shares of IGC's Common Stock. Such
warrants are of the form attached hereto as Appendix C. The warrants are granted
to Lucent-GRL on the day both Parties sign this Agreement ("Grant Date"), which
shall not be later than July 14, 2000. Upon the issuance of the YBCO PATENT
APPLICATION as a United States patent, such warrants may be exercised at [*],
however, such warrants must be exercised not later than seven (7) years
following the Grant Date.
2.02 Payments
[*]. So long as the installment payments set forth in Section 2.01(a) are paid
in a timely manner to LUCENT-GRL, no late fee or interest shall be applicable.
Should such payments be considered overdue, however, then such payments shall be
subject to a late payment charge calculated at an annual rate of [*] over the
prime rate or successive prime rates (as posted in New York City) during
delinquency. If the amount of such charge exceeds the maximum permitted by law,
such charge shall be reduced to such maximum.
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ARTICLE III
TERMINATION
3.01 Breach
In the event of a breach of this Agreement by either Party, the other Party may,
in addition to any other remedies that it may have, at any time terminate all
licenses and rights granted by it hereunder by not less than two (2) months'
written notice specifying such breach, unless within the period of such notice
all breaches specified therein shall have been remedied.
3.02 Survival
(a) If a company ceases to be a RELATED COMPANY of a Party, licenses and
rights granted hereunder with respect to patents of such company on inventions
made prior to the date of such cessation, shall not be affected by such
cessation.
(b) Any termination of licenses and rights of a Party under the
provisions of this Article III shall not affect such Party's licenses, rights
and obligations with respect to any LICENSED PRODUCT made prior to such
termination, and shall not affect the other Party's licenses and rights (and
obligations related thereto) hereunder.
ARTICLE IV
MISCELLANEOUS PROVISIONS
4.01 Disclaimer
Neither Party nor any of its SUBSIDIARIES makes any representations, extends any
warranties of any kind, assumes any responsibility or obligations whatever, or
confers any right by implication, estoppel or otherwise, other than the
licenses, rights and warranties herein expressly granted in Subsections (a)
through (f) herein below.
(a) LUCENT-GRL has sufficient right, power and authority to grant the
licenses granted in this Agreement;
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(b) the grant of the licenses in this Agreement does not conflict with,
violate or constitute a breach or default under any contract or other obligation
of LUCENT-GRL;
(c) [*];
(d) [*];
(e) [*]; and
(f) [*].
4.02 Nonassignability
The Parties hereto have entered into this Agreement in contemplation of personal
performance, each by the other, and intend that, other than set forth in Section
1.03(d), the licenses and rights granted hereunder to a Party not be extended to
entities other than such Party's RELATED COMPANIES without the other Party's
express written consent. All of LUCENT-GRL's rights, title and interest in this
Agreement and any licenses and rights granted to it hereunder may be assigned to
any of its RELATED COMPANIES or any direct or indirect successor to the business
of LUCENT-GRL as the result of any internal reorganization, which successor
shall thereafter be deemed substituted for LUCENT-GRL as the Party hereto,
effective upon such assignment; but neither this Agreement nor any licenses or
rights hereunder shall be otherwise assignable or transferable (in insolvency
proceedings, by reason of a corporate merger, or otherwise) by either Party
without the express written consent of the other Party, which consent will not
be unreasonably withheld.
4.03 Addresses
(a) Any notice or other communication hereunder shall be sufficiently
given to IGC when sent by certified mail addressed to ______________________
(or, if no address is otherwise specified, to IGC's office above specified), or
to LUCENT-GRL when sent by certified mail addressed to Contract Administrator,
Intellectual Property Organization, Lucent Technologies GRL Corp., Suite 105,
14645 N.W. 77th Avenue, Miami Lakes, Florida 33014, United States of America.
Changes in such addresses may be specified by written notice.
(b) Payments by IGC shall be made to LUCENT-GRL at [*]. Changes in such
address or account may be specified by written notice.
4.04 Taxes
(a) IGC shall bear all taxes, duties, levies and similar charges (and any
related interest and penalties), however designated, imposed as a result of the
existence or operation of this Agreement, except (i) any tax imposed upon
LUCENT-GRL in a jurisdiction other than the United States if such tax is
allowable as a credit against the United States income taxes of LUCENT; and (ii)
any net income tax imposed upon LUCENT-GRL by the United States or any
governmental entity within the United States (the fifty (50) states and the
District of Columbia). In order for the exception contained in (i) to apply, IGC
must furnish LUCENT-GRL with evidence issued by the taxing authority in such
jurisdiction that such tax has been paid. The evidence must be furnished within
thirty (30) days of issuance by the taxing authority and must be sufficient to
satisfy United States taxing authorities that such tax has been paid.
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(b) If IGC is required to bear a tax, duty, levy or similar charge
pursuant to (a) above, IGC shall pay such tax, duty, levy or similar charge and
any additional amounts as are necessary to ensure that the net amounts received
by LUCENT-GRL hereunder after all such payments or withholdings equal the
amounts to which LUCENT-GRL is otherwise entitled under this Agreement as if
such tax, duty, levy or similar charge did not apply.
4.05 Choice of Law
The Parties are familiar with the principles of New York commercial law, and
desire and agree that the law of New York, exclusive of its conflict of laws
provisions, shall apply in any dispute arising with respect to this Agreement.
4.06 Integration
This Agreement sets forth the entire agreement and understanding between the
Parties as to the subject matter hereof and merges all prior discussions between
them. Neither of the Parties shall be bound by any warranties, understandings or
representations with respect to such subject matter other than as expressly
provided herein or in a writing signed with or subsequent to execution hereof by
an authorized representative of the Party to be bound thereby.
4.07 Outside the United States
(a) There are countries in which the owner of an invention is entitled to
compensation, damages or other monetary award for another's unlicensed
manufacture, sale, lease, use or importation involving such invention prior to
the date of issuance of a patent for such invention but on or after a certain
earlier date, hereinafter referred to as the invention's "protection
commencement date" (e.g., the date of publication of allowed claims or the date
of publication or "laying open" of the filed patent application). In some
instances, other conditions precedent must also be fulfilled (e.g., knowledge or
actual notification of the filed patent application). The Parties agree that (i)
an invention which has a protection commencement date in any such country may be
used in such country pursuant to the terms of this Agreement on and after any
such date, and (ii) all such conditions precedent are deemed satisfied by this
Agreement.
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(b) There may be countries other than the United States in which a Party
hereto may have, as a consequence of this Agreement, rights against infringers
of the other Party's patents licensed hereunder. Each Party hereby waives any
such right it may have by reason of any third party's infringement or alleged
infringement of any such patents.
(c) IGC hereby agrees to register or cause to be registered, to the
extent required by applicable law, and without expense to LUCENT-GRL or any of
its RELATED COMPANIES, any agreements wherein sublicenses are granted by it
under LUCENT's PATENTS. IGC hereby waives any and all claims or defenses,
arising by virtue of the absence of such registration, that might otherwise
limit or affect its obligations to LUCENT-GRL.
4.08 Dispute Resolution
(a) If a dispute arises out of or relates to this Agreement, or the
breach, termination or validity thereof, the Parties agree to submit the dispute
to a sole mediator selected by the Parties or, at any time at the option of a
Party, to mediation by the American Arbitration Association ("AAA"). If not thus
resolved, it shall be referred to a sole arbitrator selected by the Parties
within thirty (30) days of the mediation, or in the absence of such selection,
to AAA arbitration which shall be governed by the United States Arbitration Act.
(b) Any award made (i) shall be a bare award limited to a holding for or
against a Party and affording such remedy as is deemed equitable, just and
within the scope of the Agreement ; (ii) shall be without findings as to issues
(including but not limited to patent validity and/or infringement) or a
statement of the reasoning on which the award rests; (iii) may in appropriate
circumstances (other than patent disputes) include injunctive relief; (iv) shall
be made within four (4) months of the appointment of the arbitrator; and (v) may
be entered in any court.
(c) The requirement for mediation and arbitration shall not be deemed a
waiver of any right of termination under this Agreement and the arbitrator is
not empowered to act or make any award other than based solely on the rights and
obligations of the Parties prior to any such termination.
(d) The arbitrator shall be knowledgeable in the legal and technical
aspects of this Agreement and shall determine issues of arbitrability but may
not limit, expand or otherwise modify the terms of the Agreement .
(e) The place of mediation and arbitration of this Agreement shall be New
York City.
(f) Each Party shall bear its own expenses but those related to the
compensation and expenses of the mediator and arbitrator shall be borne equally.
(g) A request by a Party to a court for interim measures shall not be
deemed a waiver of the obligation to mediate and arbitrate.
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(h) The arbitrator shall not have authority to award punitive or other
damages in excess of compensatory damages and each Party irrevocably waives any
claim thereto.
(i) The Parties, their representatives, other participants and the
mediator and arbitrator shall, except as required by law, hold the existence,
content and result of mediation and arbitration in confidence.
4.09 Releases
(a) In consideration of the up-front license fee pursuant to Section
2.01(a) and other good and valuable consideration paid by IGC to LUCENT-GRL, and
subject to the receipt thereof upon execution of this Agreement and to Section
4.09(c), LUCENT-GRL, for itself and for its present RELATED COMPANIES, hereby
releases IGC, its present RELATED COMPANIES and all customers (purchasers and
users) of products of the kinds herein licensed as of the Effective Date hereof
to IGC and sold or leased to such customers by IGC, from all claims, demands and
rights of action which LUCENT-GRL or any of its present RELATED COMPANIES may
have on account of any infringement or alleged infringement of any patent issued
in any country of the world by reason of the manufacture or any past or future
use, lease, sale or importation of any of such products which, prior to the
Effective Date hereof, were used or furnished by IGC or any of its present
RELATED COMPANIES.
(b) Subject to Section 4.09(c), IGC, for itself and for its present
RELATED COMPANIES, hereby releases LUCENT-GRL, its present RELATED COMPANIES
(for the purposes of this Section 4.09(b) the RELATED COMPANIES include Lucent
Technologies Inc. as it presently exists and as it formerly existed as the
equipment/manufacturing entity of AT&T Corp. and the present SUBSIDIARIES of
Lucent Technologies Inc., other than LUCENT-GRL), and all customers (purchasers
and users) of products of the kinds herein licensed as of the Effective Date
hereof to LUCENT-GRL and sold or leased to such customers by LUCENT-GRL, from
all claims, demands and rights of action which IGC or any of its present RELATED
COMPANIES may have on account of any infringement or alleged infringement of any
patent issued in any country of the world by reason of the manufacture or any
past or future use, lease, sale or importation of any of such products which,
prior to the Effective Date hereof, were manufactured by or for, or used,
furnished or imported by, LUCENT-GRL or any of its present RELATED COMPANIES.
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(c) With respect to customers (purchasers and users) of a grantee, such
releases shall not extend to any patent which is directed to (i) a combination
of a product of the kind herein licensed as of the Effective Date hereof with
any other product; (ii) a method or process which is other than the inherent use
of a product of the kind herein licensed (as furnished to such customers); or
(iii) a method or process involving the use of a product of the kind herein
licensed as of the Effective Date hereof to manufacture (including associated
testing) any other product.
(d) [*].
4.10 Prosecution and Maintenance
(a) LUCENT-GRL shall prosecute diligently the YBCO PATENT APPLICATION and
shall pay all costs associated with such prosecution.
(b) [*].
4.11 Infringement
LUCENT-GRL reserves any and all rights to commence, prosecute, compromise and
settle any claim, action or proceeding for infringement, unfair competition,
unauthorized use, misappropriation or violation of any of the LUCENT-GRL PATENTS
by any third party. LUCENT-GRL may commence, prosecute, compromise or settle any
such claim, action or proceeding, as well as any claim, action or proceeding to
defend any of the LUCENT-GRL PATENTS, in its sole discretion, and shall not have
any obligation to do so. If IGC notifies LUCENT-GRL of any infringement of any
LUCENT-GRL PATENT that impairs IGC's commercial use of a LICENSE PRODUCT
(including the manufacture, sale or distribution thereof), then upon IGC's
written request, LUCENT-GRL shall, in its sole discretion, take commercially
reasonable steps to terminate further infringement through enforcement of the
applicable LUCENT-GRL PATENTS.
4.12 Execution in Counterparts
This Agreement may be executed in any number of counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
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IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed
in duplicate originals by its duly authorized representatives on the respective
dates entered below.
LUCENT TECHNOLOGIES GRL CORPORATION
By: /s/ Daniel P. McCurdy
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Daniel P. McCurdy
Chairman
Date: 7/7/00
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INTERMAGNETICS GENERAL CORPORATION
By: /s/ Michael C. Zeigler
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Title: Senior Vice President, Finance
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Date: 6.30.2000
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THIS AGREEMENT DOES NOT BIND OR OBLIGATE EITHER PARTY
IN ANY MANNER UNLESS DULY EXECUTED BY AUTHORIZED
REPRESENTATIVES OF BOTH PARTIES.
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APPENDIX A
DEFINITIONS
IGCs PATENTS means every patent (including utility models but excluding design
patents and design registrations) issued in any country of the world
which claims or is otherwise directed to an INVENTION disclosed
in any patent application filed in that country or in any other
country prior to the effective date hereof,
provided that, at any time after the earliest filing of any such
application disclosing such INVENTION, IGC (or any company while
a RELATED COMPANY of IGC)
(i) has ownership or control of any such patent or
application, or
(ii) otherwise has the right to grant any licenses of the
type herein granted by IGC under such patent.
INVENTION means any invention made prior to the effective date hereof and
covering the subject matter described in LUCENT-GRL's PATENTS or covering an
improvement, enhancement, modification or combination involving such subject
matter.
LICENSED PRODUCT(S) means any and all products utilizing any material, whether
in bulk or shaped form, which exhibits superconducting properties.
LUCENT-GRL's PATENTS means the YBCO PATENT APPLICATION and the patents and
patent applications listed in Appendix B. LUCENT-GRL's PATENTS also means all
patents issuing in any and all countries of the world corresponding to such
patents and applications (including the YBCO PATENT APPLICATION), and all
continuations, reissues and extensions of such patents and applications.
RELATED COMPANIES with respect to IGC are its SUBSIDIARIES. RELATED COMPANIES
with respect to LUCENT-GRL are SUBSIDIARIES of LUCENT-GRL, Lucent Technologies
Inc. ("LUCENT"), the parent of LUCENT-GRL, and SUBSIDIARIES of LUCENT, other
than LUCENT-GRL.
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SUBSIDIARY of a company means a corporation or other legal entity (i) the
majority of whose shares or other securities entitled to vote for election of
directors (or other managing authority) is now or hereafter controlled by such
company either directly or indirectly; or (ii) which does not have outstanding
shares or securities but the majority of whose ownership interest representing
the right to manage such corporation or other legal entity is now or hereafter
owned and controlled by such company either directly or indirectly; but any such
corporation or other legal entity shall be deemed to be a SUBSIDIARY of such
company only as long as such control or ownership and control exists.
YBCO PATENT APPLICATION means United States patent application Serial Number
07/021,229 filed March 3, 1987 which is directed to yttrium-barium-copper oxide
(YBCO) superconductor materials and has its inventors Batlogg, Cava and van
Doser.
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APPENDIX B
PATENTS and Pending
Patent Applications
[*]
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APPENDIX C
Form of Warrants
THIS WARRANT AND THE SHARES OF COMMON STOCK ISSUED UPON ITS
EXERCISE ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER SET
FORTH IN SECTION 4 OF THIS WARRANT
Number of Shares: 100,000 shares (subject to adjustment as provided herein)
Date of Issuance: July 7, 2000
INTERMAGNETICS GENERAL CORPORATION
Common Stock Purchase Warrant
Intermagnetics General Corporation, a New York corporation (the
"Company"), for value received, hereby certifies that Lucent Technologies GRL
Corporation, a Delaware corporation ("Lucent"), is entitled, subject to the
terms set forth below, to purchase from the Company, at any time or from time to
time during the periods specified herein, one hundred thousand (100,000) shares
of Common Stock, par value $.10 per share, of the Company (the "Common Stock"),
at a purchase price of $19.940375 [*] per share. The shares purchasable upon
exercise of this Warrant, and the purchase price per share, each as adjusted
from time to time pursuant to the provisions of this Warrant, are hereinafter
referred to as the "Warrant Shares" and the "Purchase Price," respectively. This
Warrant is issued pursuant to Section 2.01(b) of the Patent License Agreement
between Lucent and the Company, dated as of July 7, 2000 and effective as of
June 30, 2000 (the "License Agreement")
1. Exercise.
[*]
2. Adjustments.
[*]
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3. Fractional Shares.
The Company shall not be required upon the exercise of this Warrant to issue any
fractional shares, but shall make an adjustment therefor in cash on the basis of
the Fair Market Value per share of Common Stock, as determined pursuant to
Section 1(c) above.
4. Transfer Restrictions.
[*]
5. No impairment.
The Company will not, by amendment of its charter or through reorganization,
consolidation, merger, dissolution, sale of assets or any other voluntary
action, avoid or seek to avoid the observance or performance of any of the terms
of this Warrant, but will at all times in good faith assist in the carrying out
of all such terms and in the taking of all such action as may be necessary or
appropriate in order to protect the rights of Lucent against impairment.
6. Notices of Record Date, etc.
In case:
(a) the Company shall take a record of the holders of its Common Stock
(or other stock or securities at the time deliverable upon the exercise of this
Warrant) for the purpose of entitling or enabling them to receive any dividend
or other distribution, or to receive any right to subscribe for or purchase any
shares of stock of any class or any other securities, or to receive any other
right; or
(b) of any capital reorganization of the Company, any reclassification
of the capital stock of the Company, any consolidation or merger of the Company
with or into another corporation (other than a consolidation or merger in which
the Company is the surviving entity), or any transfer of all or substantially
all of the assets of the Company; or
(c) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company,
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then, and in each such case, the Company will give to Lucent a written notice
specifying, as the case may be, (i) the date on which a record is to be taken
for the purpose of such dividend, distribution or right, and stating the amount
and character of such dividend, distribution or right, or (ii) the effective
date on which such reorganization, reclassification, consolidation, merger,
transfer, dissolution, liquidation or winding-up is to take place, and the time,
if any is to be fixed, as of which the holders of record of Common Stock (or
such other stock or securities at the time deliverable upon the exercise of this
Warrant) shall be entitled to exchange their shares of Common Stock (or such
other stock or securities) for securities or other property deliverable upon
such reorganization, reclassification, consolidation, merger, transfer
dissolution, liquidation, or winding-up. Such written notice shall be given at
least [*] days prior to the record date or effective date for the event
specified in such notice.
7. Covenants of the Company.
[*]
8. Registration Rights. The Company and Lucent covenant and
agree as follows:
[*]
9. Replacement and Cancellation of Warrant; Register.
(a) Replacement of Warrant. Upon receipt of evidence
reasonably satisfactory to the Company of the loss, theft, destruction, or
mutilation of this Warrant and, in the case of any such loss, theft, or
destruction, upon delivery of an indemnity agreement reasonably satisfactory in
form and amount to the Company, at its expense, will execute and deliver, in
lieu thereof, a new Warrant of like tenor.
(b) Cancellation; Payment of Expenses. Upon the
surrender of this Warrant in connection with any transfer, or replacement as
provided in this Section 9, this Warrant shall be promptly cancelled by the
Company. The Holder shall pay all taxes and all other reasonable and customary
expenses and charges payable in connection with the preparation, execution, and
delivery of Warrants pursuant to this Section 9.
(c) Register. The Company shall maintain, at its
principal executive offices (or such other office or agency of the Company as it
may designate by notice to the holder hereof), a register for this Warrant, in
which the Company shall record the name and address of the person in whose name
this Warrant has been issued, as well as the name and address of each transferee
and each prior owner of this Warrant.
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10. Mailing of Notices. All notices, requests, and other communications
required or permitted to be given or delivered hereunder to the holder of this
Warrant shall be in writing, and shall be personally delivered, or shall be sent
by certified or registered mail or by recognized overnight mail courier, postage
prepaid and addressed, to Attention: Contract Administrator, Intellectual
Property Organization, Lucent Technologies GRL Corp., Suite 105, 14645 N.W. 77th
Avenue, Miami Lakes, Florida 33014, United States of America. (or to such other
address as the Holder shall specify) or, after transfer of this Warrant in
accordance with Section 4 hereof, each such successive holder shall notify the
Company of its address within five (5) days of such transfer, thereafter the
Company shall send any communications to such holder at the address shown for
such holder on the books of the Company, or at such other address as shall have
been furnished to the Company by notice from such holder. All notices, requests,
and other communications required or permitted to be given or delivered
hereunder to the Company shall be in writing, and shall be personally delivered,
or shall be sent by certified or registered mail or by recognized overnight mail
courier, postage prepaid and addressed, to the office of the Company at 450 Old
Niskayuna Road, P.O. Box461, Latham, New York 12110, Attention: Chief Executive
Officer, or at such other address as shall have been furnished to the holder of
this Warrant by notice from the Company. Any such notice, request, or
communication may be sent by facsimile, but shall in such case be subsequently
confirmed by a writing personally delivered or sent by certified or registered
mail or by recognized overnight mail courier as provided above. All notices,
requests, and other communications shall be deemed to have been given either at
the time of the receipt thereof by the person entitled to receive such notice at
the address of such person for purposes of this Section 10, or, if mailed by
registered or certified mail or with a recognized overnight mail courier upon
deposit with the United States Post Office or such overnight mail courier, if
postage is prepaid and the mailing is properly addressed, as the case may be.
11. No Rights as Stockholder. Until the exercise of this Warrant,
Lucent shall not have or exercise any rights by virtue hereof as a stockholder
of the Company and the Company shall not hold Lucent out as a shareholder or
investor until such time.
12. Change or Waiver. Any term of this Warrant may be changed or waived
only by an instrument in writing signed by the party against which enforcement
of the change or waiver is sought.
13. Headings. The headings in this Warrant are for purposes of
reference only and shall not limit or otherwise affect the meaning of any
provision of this Warrant.
14. Definitions. The following terms as used in this Warrant shall have
the meanings set forth below:
Person means an individual, a partnership, a joint venture, a
corporation, an association, a trust or any other entity or organization,
including a government or any department or agency thereof.
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Change in Control of the Company shall be deemed to have
occurred at such time as any Person or any group ("Group") of Persons within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended, and
the rules promulgated thereunder, is or becomes the beneficial owner, directly
or indirectly, through a purchase, merger or other acquisition transaction or
series of transactions, of shares of capital stock of the Company entitling such
Person or Group to exercise [*] of the total voting power of each class of
shares of capital stock of the Company entitled to vote in elections of
directors.
15. Governing Law. This Warrant will be governed by and construed in
accordance with the laws of the State of New York.
16. Publicity. Except as required by law, [*].
17. Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
INTERMAGNETIC GENERAL CORPORATION
By: /s/ Michael C. Zeigler
-----------------------------------
Title:________________________________
AGREED:
LUCENT TECHNOLOGIES GRL CORPORATION
By: /s/ Daniel P. McCurdy
---------------------------------
Title: Chairman
------------------------------
19
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EXHIBIT I
PURCHASE FORM
To: Intermagnetics General Corporation,
Dated:_____________
The undersigned, pursuant to the provisions set forth in the attached
Warrant, hereby irrevocably elects to purchase ____________ shares of the Common
Stock covered by such Warrant. The undersigned herewith makes payment of
$_______________, representing the full purchase price for such shares at the
price per share provided for in such Warrant. Such payment takes the form of
(check applicable box or boxes):
$______ by wire transfer, bank check or other method
acceptable to Intermagnetics General Corporation,
and/or
the cancellation of such portion of the attached Warrant as is
exercisable for a total of _______ Warrant Shares (using a
Fair Market Value of $_______ per share for purposes of this
calculation).
LUCENT TECHNOLOGIES GRL CORPORATION
By:_________________________________________
Title:______________________________________
20
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APPENDIX D
Investor's Rights Agreement
INTERMAGNETICS GENERAL CORPORATION
INVESTOR'S RIGHTS AGREEMENT
JULY 7, 2000
21
<PAGE>
INTERMAGNETICS GENERAL CORPORATION
INVESTOR'S RIGHTS AGREEMENT
This Investor's Rights Agreement (the "Agreement") is made as of the 7th day of
July, 2000, by and between Intermagnetics General Corporation, a New York
corporation (the "Company"), the Lucent Technologies GRL Corporation, a Delaware
corporation (which is herein referred to as the "Investor").
RECITALS
The Company and the Investor have entered into a Patent License Agreement (the
"License Agreement"), dated as of July 7, 2000 and effective as of June 30,
2000. A condition to the Investor's obligations under the License Agreement is
that the Company and the Investor enter into this Agreement in order to provide
the Investor with (i) certain rights to register shares of the Company's Common
Stock issuable upon exercise of the Warrant and (ii) certain rights to receive
or inspect information pertaining to the Company.
AGREEMENT
The parties hereby agree as follows:
1. Registration Rights. The Company and the Investor covenant and
agree as follows:
[*]
2. Covenants of the Company.
2.1 Delivery of Information. The Company shall deliver to the
Investor copies of filings made by the Company with the SEC pursuant to the
Securities and Exchange Act of 1934, as amended, contemporaneously with the
filing thereof.
2.2 [*].
3. Miscellaneous.
3.1 Successors and Assigns. Except as otherwise provided in
this Agreement, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective permitted successors and assigns
of the parties (including transferees of the Warrant or any Common Stock issued
upon exercise thereof). Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
3.2 Amendments and Waivers. Any term of this Agreement may be
amended or waived only with the written consent of the Company and the holders
of a majority of the Registrable Securities then outstanding. Any amendment or
waiver effected in accordance with this paragraph shall be binding upon each
party to the Agreement, whether or not such party has signed such amendment or
waiver, each future holder of all such Registrable Securities, and the Company.
<PAGE>
3.3 Mailing of Notices. All notices, requests, and other
communications required or permitted to be given or delivered hereunder to the
Holder hereof shall be in writing, and shall be personally delivered, or shall
be sent by certified or registered mail or by recognized overnight mail courier,
postage prepaid and addressed, to Attention: Contract Administrator,
Intellectual Property Organization, Lucent Technologies GRL Corp., Suite 105,
14645 N.W. 77th Avenue, Miami Lakes, Florida 33014, United States of America.
(or to such other address as the Holder shall specify) or, after assignment or
transfer of this Agreement in accordance with Section 1.12 hereof, each such
successive holder shall notify the Company of its address within five (5) days
of such transfer, thereafter the Company shall send any communications to such
holder at the address shown for such holder on the books of the Company, or at
such other address as shall have been furnished to the Company by notice from
such holder. All notices, requests, and other communications required or
permitted to be given or delivered hereunder to the Company shall be in writing,
and shall be personally delivered, or shall be sent by certified or registered
mail or by recognized overnight mail courier, postage prepaid and addressed, to
the office of the Company at 450 Old Niskayuna Road, P.O. Box 461, Latham, New
York 12110, Attention: Chief Executive Officer, or at such other address as
shall have been furnished to the holder of this Warrant by notice from the
Company. Any such notice, request, or communication may be sent by facsimile,
but shall in such case be subsequently confirmed by a writing personally
delivered or sent by certified or registered mail or by recognized overnight
mail courier as provided above. All notices, requests, and other communications
shall be deemed to have been given either at the time of the receipt thereof by
the person entitled to receive such notice at the address of such person for
purposes of this Section 3.3, or, if mailed by registered or certified mail or
with a recognized overnight mail courier upon deposit with the United States
Post Office or such overnight mail courier, if postage is prepaid and the
mailing is properly addressed, as the case may be.
3.4 Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then
(a) such provision shall be excluded from this Agreement, (b) the balance of the
Agreement shall be interpreted as if such provision were so excluded and (c) the
balance of the Agreement shall be enforceable in accordance with its terms.
3.5 Governing Law. This Agreement and all acts and
transactions pursuant hereto shall be governed, construed and interpreted in
accordance with the laws of the State of New York, without giving effect to
principles of conflicts of laws.
3.6 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
2
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3.7 Titles and Subtitles. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
3.8 Publicity. Except as required by law, [*].
The parties have executed this Investor's Rights Agreement as of the
date first above written.
COMPANY: INVESTOR:
INTERMAGNETICS GENERAL LUCENT TECHNOLOGIES GRL
CORPORATION CORPORATION
By: /s/ Michael C. Zeigler By: /s/ Daniel P. McCurdy
---------------------- ---------------------
Name: Daniel P. McCurdy
-------------------
Address: (print)
Fax: Title: Chariman
------------------
3
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EXHIBIT A
INVESTOR
Name/Address/Fax No. No. of Shares
-------------------- -------------
