Exhibit 10.58


MATERIAL NOTED WITH [* *] IS CONFIDENTIAL

AND HAS BEEN DELETED PURSUANT TO A

REQUEST FOR CONFIDENTIAL TREATMENT,

AND FILED SEPARATELY WITH THE

SECURITIES AND EXCHANGE COMMISSION 


 


[Execution Copy]


AMENDED AND RESTATED

TECHNOLOGY EXCHANGE AND

CROSS LICENSE AGREEMENT


THIS AMENDED AND RESTATED TECHNOLOGY EXCHANGE AND
CROSS LICENSE AGREEMENT (the “Agreement”), made and entered into this       
day of January, 2007 by and between DAIKYO SEIKO, LTD., a corporation organized and existing under the laws of
Japan, having a place of business at 38-2 Sumida 3-Chome, Sumida-Ku, Tokyo 131-0031, Japan (hereinafter, together
with its Subsidiaries, referred to as “Daikyo”) and WEST PHARMACEUTICAL
SERVICES, INC. (formerly known as THE WEST COMPANY, INCORPORATED), a
corporation organized and existing under the laws of the Commonwealth of
Pennsylvania, United States of America, having a place of business at 101
Gordon Drive, Lionville, Pennsylvania 19341, United States of America
(hereinafter, together with its Subsidiaries, referred to as “West”).  West and Daikyo are sometimes referred to in
this Agreement collectively as the “Parties” and each individually as a “Party.”


WITNESSETH:


WHEREAS, West and Daikyo have entered into an Amended
and Restated Technology Exchange and Cross License Agreement, dated January 30,
1997 (the “1997 Agreement”), which provides for the exchange of technology
relating to the manufacture of closures, vials, medical device components, and
similar products (defined herein as “Products”) and the licensing of know-how
and patents relating to such Products; and


WHEREAS, the Parties desire to amend and restate the
1997 Agreement to reflect certain changes to the provisions thereof;


NOW THEREFORE, in consideration of the mutual
covenants herein set forth, the Parties hereto agree to amend and restate the
1997 Agreement as follows:


ARTICLE 1   CERTAIN
DEFINITIONS


Terms defined in this Article 1 and parenthetically
elsewhere in this Agreement will throughout this Agreement have the meanings
here or there provided.  Defined terms
may be used in the singular or in the plural, as sense shall require.


A “Change in Control” shall be deemed to have
occurred when, in connection with or as the direct or indirect result of any
acquisition or sale of any assets or capital stock of West or Daikyo, as the
case may be, whether or not approved by that company’s board of directors or
its shareholders, any entity or Person either alone or acting in concert with
others acquires shares of the company’s stock and such acquisition results in
that entity or Person 













either alone or acting in
concert with others directly or indirectly owning beneficially 51% or more of
the company’s outstanding shares.


“Developments” means developments and
improvements, whether or not patentable, relating to a Party’s Licensed
Patents, Know-How or Products produced thereby.


“First Commercial
Sale of a Product” means the shipment of a Licensed Product to
a customer in quantities of at least [**] units.


“Know-How” means all useful technical
information that is not generally known or accessible but is not protected by a
patent, which a Party uses or may use in connection with its manufacture of
Products.  Know-How of a Party may
include, without limitation, documents, models, the design and configuration of
molds, formulae, prototypes containing design and technical information, data,
drawings, plans, specifications, formulations and reports, in written or
non-written form.  Know-How shall also
include Developments.


“Licensed Patents” means patents owned by a Party and licensed to the other
Party under the terms of this Agreement, or any interest in such patents, and all continuations,
divisions, reissues or extensions of any of such patents, as well as any
reexamination certificate relating thereto.


“Licensed Product” means Products whose process of manufacture
or use incorporate Know-How or come
within the scope of any unexpired claim of any Licensed Patent.


“Licensed Trademarks” means the trademarks of
West or Daikyo, as the case may be, identified in Schedule A hereto.  Schedule A may be amended from time to time
by mutual consent of the Parties.


“Licensee” means West or Daikyo, as the case
may be, in its capacity as licensee of Know-How or Licensed Patents.


“Licensor” means West or Daikyo, as the case
may be, in its capacity as licensor of Know-How or Licensed Patents.


“Net Sales” means gross sales of the relevant
Licensed Product less returns, customary trade discounts and amounts included
in the sales price with respect to insurance, shipping, handling and taxes.


“Person” means an individual, partnership,
corporation, trust or unincorporated organization, and a government or agency
or political subdivision thereof.


“Products” means closures, vials, medical
device components, and similar products used in connection with the packaging,
delivery or dispensing of pharmaceutical products, along with materials for
making the same, manufactured or sold by West or Daikyo. “West Products” means
Products manufactured or sold by West, and “Daikyo Products” means Products
manufactured or sold by Daikyo.



 2
 









“Special Material, Formula or Process” means a
material, formula, or process together with finished product specifications,
used in or useful to the manufacture of Products, and which (i) constitutes Know-How or is protected by Licensed Patents and (ii) has demonstrated commercial potential.


“Subsidiaries” means (i)
any corporation or other legal entity of which West or Daikyo owns 100% of the
stock ownership or other equity interest, directly or indirectly, (ii) any
other entity that both West and Daikyo consent to designate as a subsidiary, provided, however, that West or Daikyo may in any case revoke such
consent for any reason without prejudice to the revoking Party, and (iii) in the case of West, West
Pharmaceutical Services of Mexico, Inc. and Medimop Medical Projects, Ltd.


“Territory” means all countries
in the world.


ARTICLE 2   FURNISHING
OF KNOW-HOW


2.01         Furnishing of Know-How.  To the extent that they are legally free to
do so, the Parties shall (i) mutually furnish to each other their complete
present Know-How, (ii) assist each other in the
exploitation of such Know-How, (iii) keep each other fully and promptly
informed as to all Developments, and
(iv) cooperate to jointly develop new Products and improvements to existing Products for their mutual benefit and the benefit
of their customers.


2.02         Exchange of Documents.  Subject
to the terms of any confidentiality or non-disclosure agreements or obligations
that may be binding on a Party, upon request, the Parties will furnish each
other with such records, work-drawings, other drawings, formulae and
other technical records as may be necessary or
desirable to further the purposes of this Agreement.


2.03         Assistance. 
Each Party may send personnel to the premises of the other Party for the
purpose of acquainting such personnel with all existing and future Know-How so
long as the normal course of production and
business of the other Party are not disrupted by such personnel.  Upon request, each Party shall send
personnel to assist in acquainting the other Party with Know-How, but only in
the event and to the extent that the normal course of production and business
of the sending Party is not disrupted.


2.04         Expenses of Furnishing
Know-How.   All expenses incurred in connection with furnishing
Know-How will be borne by the Party to which the Know-How is being furnished,
except that the salaries of personnel and
related salary costs will be borne in any case by their employer, unless also in respect of such salaries a
different arrangement has been reached by prior written agreement.


ARTICLE 3   CROSS
LICENSE


3.01         Daikyo License. 
Subject to the terms and conditions of this Agreement, West grants to Daikyo, and Daikyo accepts:



 3
 









(a)           The non-exclusive right and license to use and employ
Licensed Patents of West solely in the manufacture, use and sale of Licensed
Products in the Territory;


(b)           The non-exclusive right
and license to use and employ Know-How of West disclosed to Daikyo under
this Agreement solely in the manufacture, use and sale of Licensed Products in the Territory;


(c)           The non-exclusive right to use and employ Licensed
Trademarks of West solely in the sale of
Licensed Products in the Territory; and


(d)           The right to sublicense any or all of the rights granted
in paragraphs (a), (b) and (c) above to any
Subsidiary of Daikyo but to no other Person.


3.02         West License. 
Subject to the terms and conditions of this Agreement, Daikyo grants to West, and West accepts:


(a)           The non-exclusive right
and license to use and employ Licensed Patents of Daikyo solely in the
manufacture, use and sale of Licensed Products in the Territory;


(b)           The non-exclusive right and license to use and employ
Know-How of Daikyo disclosed to West under this Agreement solely in the
manufacture, use and sale of Daikyo’s Licensed Products in the Territory;


(c)           The non-exclusive right to use and employ Licensed
Trademarks of Daikyo solely in the sale of
Licensed Products in the Territory; and


(d)           The right to sublicense any and all of the rights granted
under paragraphs (a), (b) and (c) above to
any Subsidiary of West but to no other Person.


3.03         Restrictions on Manufacturing Sites.  The Parties acknowledge that the Licensor has
an interest in assuring that (i) Licensed Products meet quality standards that are at least
equivalent to those generally prevailing in the industry and (ii) Licensee shall keep all the technical information provided by
Licensor in accordance with this Agreement secret.  Licensee shall obtain prior written consent
of Licensor with respect to Licensee’s manufacturing site(s) for
Licensed Products and processes.  Licensor shall not unreasonably withhold or
delay such consent to Licensee’s manufacturing site(s) and processes. Notwithstanding
the foregoing provisions, if Licensee’s manufacturing site(s) shall be located
in any country (such as China) which may not comply with legal process and
patent system, Licensor shall withhold such consent.


3.04         Negotiation of
Sublicensing Rights.  To the extent
that Know-How subject to this Agreement is owned by third Persons, each Party
shall use commercially reasonable efforts to negotiate
contracts or agreements with such third Parsons which permit sublicensing and
technology transfer to the other Party and its permitted sublicensees in
accordance with the terms of this Agreement.



 4
 









3.05
        Continuing Rights upon Expiration.  Upon expiration of the full term of the
rights granted under any Licensed Patents, the Licensee will have a perpetual,
royalty-free, nonexclusive, fully paid-up license of the expired Licensed
Patent to manufacture, use and sell Products which were Licensed
Products within the Territory under the
Licensed Trademarks (as such terms are in effect immediately prior to such expiration); provided, however, that the
Licensee will comply with confidentiality restrictions in place with respect to any confidential information as
may remain confidential, and provided, further, that the Licensee shall
continue to pay royalties assigned to any Know-How under Section 4.04
hereof.


3.06         Acknowledgement of License.  The Licensee’s Internet website and each
written brochure, catalogue or other promotional material that displays or
refers to a Licensed Product shall contain the following notation “[name of
Licensed Product or Technology] licensed from [Licensor name]”, provided that
Licensee may continue to use brochures and other promotional material that does
not contain the notation to the extent it was already in use or on hand at the
effective date of the Agreement.  The
Licensee’s Internet website, and each written brochure, catalogue or other
promotional material that contains a Licensed Trademark or other registered
trademark of the Licensor shall also identify the mark with the symbol “®” and
appropriately indicate that the mark is a registered trademark of [Licensor
name].  Licensor shall provide to
Licensee a list of its registered marks and the countries or jurisdictions
where such marks are registered with respect to any new trademarks that become
so registered.


ARTICLE 4   ROYALTIES;
FEES


4.01         General Rule.  [**].


4.02         Designation and
Disclosure of Special Material, Formula
or Process.  Before furnishing Know-How or granting the license of a Licensed
Patent, either Party may declare
that such Know-How or the
Licensed Patent contains a “Special Material, Formula, or Process,” in which event the Parties shall
consult with each other and mutually determine, before the Licensee elects to receive such Know-How or the license of the Licensed Patent, in which rank the Special Material, Formula, or Process shall be classified.  In the event that the classification for rank
is not agreed by the Parties, the rank should be “A” rank.  If so designated, such Party shall promptly
provide the other Party with such
information concerning the Special Material, Formula, or Process as is
necessary to enable the other Party
to determine if such Special Material, Formula, or Process would be useful to
it.  Each transfer of a Special Material, Formula or Process shall be made
pursuant to a separate transfer agreement, substantially in the form of Exhibit
A hereto, which shall be executed at the time of transfer by the Parties involved. 
The Parties entered into separate transfer agreements pursuant to the
1997 Agreement.  Such agreements shall
continue in effect after execution of this Agreement in accordance with the
terms of this Agreement.


4.03         Quality Assurances.    The
Licensor may provide a Certificate of Equivalency satisfactory
in form and substance to the Licensee or to its sublicensee with respect to
Licensed Products manufactured using a
Special Material, Formula, or 



 5
 









Process after the Licensee has demonstrated that Licensed Products using the
Special Material, Formula, or Process meet the finished product specifications provided by the Licensor.


4.04         Royalties Payable In Respect of a Special Material,
Formula or Process.


(a)           If the Licensee elects
to utilize the Special Material, Formula, or Process in the manufacture
and sale of Licensed Products, it shall pay royalties to the Licensor according
to the table set forth below.  If the Special Material, Formula, or Process
involves both Know-How and is wholly or partially covered by one or more
Licensed Patents, separate royalties may be assigned to the Know-How and
Licensed Patent(s), as specified in the separate transfer agreement.


Royalty
Payments Table


[Percentages are of Net Sales]


	
  Material, Formula,

  or Process Rank

  	
   

  	
  Quantities

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  
	
  S

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  
	
  A

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  
	
  B

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  
	
  C

  	
   

  	
   

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  
	
  D

  	
   

  	
  [**]

  	
   

  	
  [**]

  	
   

  	
  [**]

  



 


Month “1” of the royalty
payment schedule begins with the first month in which the First  Commercial Sale of a Product occurs.


(a)           Notwithstanding the foregoing provisions, if more than one
Special Material, Formula, or Process is used together in the manufacture of a
single Licensed Product, the total royalties
due pursuant to this Section 4.04 will be aggregated, but in no event shall
such royalties exceed [**] of
Net Sales.


(b)           Initial license fees
due pursuant to Section 4.04 shall be paid within 30 days following
execution of the transfer agreement, and all other royalties shall be paid
quarterly within 25 days after the end of
each calendar quarter.  All amounts due
are payable in the currency of the Licensor’s
country.  Payments shall be accompanied
by a statement identifying the Special Material, Formula, or Process and showing, in reasonable detail, the calculation of
the payment.



 6















 


4.05         Exceptions to Payment of Royalties. 
Notwithstanding the provisions of this Agreement, the Special Materials, Formulas, or
Processes set forth on Schedule B
and licensed to the Licensee prior to the date of this Agreement shall
be subject to the royalty payments schedule set forth below.


(a)   In
the case of [**], month “1” of the royalty payment
schedule begins with the first month in which the First  Commercial Sale of a Licensed Product occurs.


(b)   In the case of [**], the [**] means the formulations (such as [**]), which became available to the customer’s regular business before 10th day of May, 1992.  The formulations of [**]and [**], which became available to the customer’s regular business after 10th day of May, shall not apply to [**] and are not part of the transferred Know-How.


Royalty Payments Table for Previously
Licensed Products


[Percentages
are of Net Sales]


	
  Material,
  Formula, or Process Rank

  	
  [**]

  	
  [**]

  	
  [**]

  	
  [**]

  	
  [**]

  
	
  S

  	
   

  	
  [**]

  	
  [**]

  	
  [**]

  	
  [**]

  
	
  A

  	
   

  	
  [**]

  	
  [**]

  	
  [**]

  	
  [**]

  
	
  B

  	
   

  	
  [**]

  	
  [**]

  	
  [**]

  	
  [**]

  
	
  C

  	
   

  	
  [**]

  	
  [**]

  	
  [**]

  	
  [**]

  
	
  D

  	
  [**]

  	
  [**]

  	
  [**]

  	
  [**]

  



 


4.06         Limitations
on Payment of Royalties.


(a)           All existing monetary obligations of the Licensee
to the Licensor will cease with respect to (i) any Licensed Product that
is no longer covered by at least one valid claim in a Licensed Patent and (ii) any Know-How which becomes publicly available in
the industry.


(b)           If in any suit involving the validity or
infringement of claims of any Licensed Patents, such claims have been
held to be invalid, or not infringed, by a final judgment or decree from which
no appeal can be taken, then in that event the Licensee shall thereafter be
free of any royalty obligation hereunder to
the same extent, as and to the non-infringing subject matter, as the Party in
whose favor said judgment or decree shall have been entered, while said final
judgment or decree shall be in effect.


4.07         Additional Fees and Commissions. 
Unless otherwise agreed on a purchase-by-purchase basis, if the Licensee
wishes to acquire special production or laboratory machinery or equipment, the
development of which was directed and financed by 



 7
 









 


the Licensor, whether such equipment or
machinery is manufactured by the Licensor or by a third Person, and if such
machinery or equipment is not readily available to users other than the
Parties, the Licensee shall appoint the Licensor its agent to acquire such
equipment or machinery and shall pay the Licensor a commission equal to [**] of
the invoiced cost of such equipment or machinery, excluding charges for handling,
shipping, insurance and taxes.


ARTICLE 5   PATENTS


5.01         Right
to File Patent Applications.


(a)           Each Party has the right, but is not obligated, in
respect of its own inventions to file patent applications (including
utility models) covering the manufacture, use or sale of Products in its own name and at its own expense in
any country.


(b)           If
a Licensor shall not have filed an application for a Patent and, upon inquiry,
such Licensor indicates that it does not intend to file any such application,
then such Licensee, at its own expense, may
file applications therefor in such country. 
In such event, the Licensor shall cooperate with the Licensee in
the making and filing of any such application, and the Licensee will reimburse the Licensor for any expense incurred by
the Licensor in providing such assistance, promptly upon receipt of an invoice therefor.


(c)           If
a Licensee shall file an application for a patent pursuant to paragraph (b) above, such Licensee may not assign or abandon any
patent rights arising therefrom without the consent of the Licensor.


5.02         Duty
to Assist.  The Parties shall assist
each other in the filing of patent applications under the preceding Section and
in the maintenance and defense of corresponding patents, including furnishing
each other with all required declarations and records.  The expenses shall be borne by the assisted Party. 
The Parties shall also assist each other in the registration of licenses
granted under this Agreement, as required by law.


5.03         Prosecution,
Maintenance and Defense.  Neither
Party is obligated to prosecute patent applications,
or to maintain and defend such patent applications or any patents resulting
therefrom of the other Party hereto, unless such other Party shall
reasonably request specific action therefor and shall undertake to bear all expenses related thereto.  In case one Party intends not to maintain or defend any patent resulting from its own invention,
such Party shall inform the other Party in order to enable such other Party to undertake such maintenance or defense at
its own cost and expense.


ARTICLE 6   INFRINGEMENT


6.01         Notice.  If either Party becomes aware of actual or
threatened infringement by a third Person of the Licensed Patents,
Licensed Trademarks, or



 8
 









 


misappropriation by third Persons of Know-How licensed under this Agreement, it will promptly notify the other
Party in writing.


6.02         Right
to Bring Suit.  The Licensee will be
entitled by itself and at its own expense to
bring suit in its name or in the Licensor’s name against any infringement of
any Licensed Patent, Licensed Trademark and/or misappropriation of
Know-How if, in the Licensee’s judgment, such infringement
and/or misappropriation is likely to interfere with the rights granted or
reserved to it under this Agreement. 
The Licensor agrees to join the Licensee as a plaintiff in any such
suit, as may be required by law, and will
cooperate in the prosecution of any such suit, at the request of the Licensee, provided that the Licensee will
reimburse the Licensor for its reasonable expense, including reasonable attorneys’ fees, for such cooperation.  The Licensor may elect to participate in any such suit at its own expense by counsel of its
own choosing.   The Licensee will retain
all amounts recovered, whether by
judgment, award, settlement or otherwise, in any suit commenced and maintained to its conclusion by the Licensee,
except that after deduction of the reasonable expenses and reasonable attorneys’ fees of Licensee and the Licensor,
the Licensee will share any remaining recovery with the Licensor on the basis
of the Licensee retaining [**] of the remaining recovery and the Licensor
receiving [**] of such remaining recovery.


6.03         Option
to Bring Suit.  If the Licensee fails
to bring suit with respect to infringement or
misappropriation of any Licensed Patent and/or Licensed Trademark and/or
Know-How within 60 days after notice thereof, the Licensor will then
have the right to bring suit in its own name and at its own expense.  The Licensee
agrees to join such suit and/or cooperate in the prosecution of any such suit,
at the request of the Licensor, as a party plaintiff, provided that the
Licensor will reimburse the Licensee for its reasonable expenses, including
reasonable attorneys’ fees, for such cooperation.  In the event the Licensor exercises
such right, the Licensor will retain all amounts recovered, whether by
judgment, award, settlement or otherwise.


ARTICLE 7   ARRANTIES AND
LIMITATIONS THEREOF


7.01         Authority to Enter Agreement.  Each of
Daikyo and West represents and warrants to the other that it has the
right to enter into this Agreement, and that there are no outstanding assignments, grants, licenses, encumbrances,
obligations or agreements, either written, oral or implied, inconsistent with this Agreement.


7.02         No
Assertion.  Each Party represents and
warrants to the other that it will not assert against
the other any Patent, trademark and/or other intellectual property right now
owned or hereafter acquired, that would interfere with the other Party’s
permitted activities within the scope of the licenses herein granted.


7.03         Disclaimer.  No Party warrants the validity of any present
or future industrial property rights or the freedom of such industrial property
rights or of any Know-How furnished under this Agreement from industrial
property rights of third Persons.  No
Party warrants the freedom of any Know-How
furnished under this Agreement from faults, or the technical feasibility or
economic exploitability of such Know-How.



 9
 









 


ARTICLE 8   INDEMNIFICATION


No Assumption of Liability: Indemnification.  The Licensor assumes no liability to the
Licensee or third Persons with reference to the performance characteristics of
the Licensed Products manufactured, distributed and sold by the Licensee hereunder
or with respect to any other claim made or asserted by any third Person with
respect to the manufacture, use and sale by the Licensee hereunder, and the
Licensee agrees to indemnify and hold harmless the Licensor against losses
incurred through claims of third Persons against the Licensor as a result of
such manufacture, distribution and sale by the Licensee of Licensed Products.


ARTICLE 9   TERM AND
TERMINATION; DEFAULT


9.01         Term.  The term of this Agreement will commence on
the date first written above and, unless terminated earlier in accordance with
other provisions of the Agreement, shall extend for a period of ten years from such date.


9.02         Termination.  This Agreement may be terminated as follows:


(a)           By
West or Daikyo upon 90 days’ written notice at any time after West ceases to be
a shareholder of Daikyo.


(b)           By
mutual written consent of both Parties at any time.


(c)           By
either Party in the event of a Change in Control of the other Party.  The terminating Party will make this decision
within one year after learning of such Change in Control and provide written
notice three months prior to the termination.


(d)           By
either Party if the other Party becomes the subject of a filing or a petition
in bankruptcy, or in a judicial proceeding with the object of an arrangement
with creditors, or if the rights of this Agreement are seized for the benefit
of creditors, or if the other Party becomes the subject of a petition for
liquidation.


(e)           By either Party if the other Party breaches a material
provision of this Agreement through adverse action or a failure to act and such
breach continues unremedied for 20 days despite written notification.


9.03         Continuing
Obligations After Termination.   For
a period of 30 days following termination of this Agreement under Section 9.02,
the Parties will negotiate terms (including royalty payments) under which they
may continue to utilize Know-How, Licensed Trademarks and to make, use or sell
Licensed Products under the Licensed Patents. 
If no agreement is reached within that time period:


(a)           Each
Party shall immediately cease and desist from any and all making, using and
selling of Licensed Products, provided that each Party may complete and sell or
use all Licensed Products produced or commenced before notice of termination
was given;



 10
 









 


(b)           Each Party will immediately cease and desist from
any and all use of Confidential Information received under this
Agreement from the other Party and will not at any time disclose to others or assist others in using Confidential Information
supplied by the other Party;


(c)           Each Party will, at its expense, promptly return
all tangible Confidential Information received under this Agreement,
including all written or printed materials and all copies thereof;


(d)           Each
Party and all sublicensees of each Party will immediately cease using all
Licensed Trademarks, except to the extent that use thereof may be reasonable
and necessary in connection with the sale of
products permitted by paragraph (a) above; and


(e)           Neither
Party will use, disclose to others, or assist others in using Know-How received
from such licensor hereunder and will continue to abide by confidentiality
obligations.


Each Party agrees to cause each of its sublicensees
and any other Person to whom it has
disclosed Know-How in accordance with this Agreement to comply with the
foregoing provisions.


9.04         Survival.  Notwithstanding anything to the contrary in
this Agreement, the continuing rights and obligations of the Parties and any
cause of action or claim of either Party, accrued or to accrue, because of any breach or default by the other Party, will
survive any termination of this Agreement
to the degree necessary to permit their complete fulfillment or discharge, and
as to any particular piece of Know-How, will continue until such
information becomes public knowledge through
no fault of the disclosee.


ARTICLE 10   MISCELLANEOUS


10.01       Severability.  Unenforceability of any provision or
provisions of this Agreement will not render unenforceable, or impair, the
remainder of this Agreement.  If any
provision or provisions of this Agreement
are found to be invalid, illegal or unenforceable, either in whole or in part,
this Agreement will be deemed amended
to delete or modify as necessary the offending provision or provisions and to alter the bounds thereof in
order to render it valid and enforceable.


10.02       Transferability
of Rights and Obligations.  Neither
Party may transfer or assign (whether
voluntarily, involuntarily or by operation of law) any of its rights or
obligations under this Agreement to any Person without the prior written
consent of the other Party.  Any attempt
to transfer or assign any rights or
obligations under this Agreement in violation of this Section will be void.  Subject to the foregoing, this Agreement will
bind and inure to the benefit of permitted successors
and assigns of the Parties.


10.03       Notices.  All notices permitted or required to be given
hereunder will be written in English and
will be deemed duly given: (a) when delivered by hand, (b) ten



 11
 









 


(10) business days after it is
mailed, certified or return receipt requested, with postage prepaid, (c) when
sent by telecopy (with receipt confirmed) or (d) when receipt is signed for
when sent by Federal Express, DHL or other
express delivery service.  Notices will
be addressed as follows:


If to
West, to:


West
Pharmaceutical Services, Inc.

101 Gordon Drive

Lionville, Pennsylvania 19341

Attention:    President

Telecopier:  (610) 594-3021


With
a required copy to:


West
Pharmaceutical Services, Inc.

101 Gordon Drive

Lionville, Pennsylvania  19341

Attention:    General Counsel

Telecopier: (610) 594-3013


If
to Daikyo Seiko Ltd., to:


38-2,
Sumida 3-Chome

Sumida-Ku

Tokyo 131-0031, Japan

Attention:    Masamichi Sudo, President

Telecopier:  81 3 36101241


or at
such other address as either Party may direct the other in writing.  Each Party will promptly inform the
other of any change of address or personnel to receive such notices.


10.04       Modifications
and Amendments.  No modification,
addition or amendment of this Agreement shall be binding on any Party unless
set forth in a document duly executed by or on behalf of such Party.  No waiver
of any provision of this Agreement will constitute waiver of or excuse for any other breach or default.  All waivers hereunder must be in writing
signed by the Party against which enforcement of such waiver is sought.


10.05       Headings.  The headings preceding the text of the
sections and subsections hereof are inserted solely for convenience of
reference, and will not constitute a part of this Agreement, nor, will they affect its meaning, construction or
effect.


10.06       Counterparts.  This Agreement may be executed in
counterpart, and each counterpart will be deemed to be an original instrument,
provided that all such counterparts together will constitute only one agreement.



 12
 









 


10.07       Governing
Law and Venue.  Japanese law shall be
applicable to this Agreement.  There are
English language and Japanese language versions of this Agreement.  The English language version is controlling.  The
first-instance jurisdiction over all controversies arising out of this Agreement shall lie with the Tokyo District Court
or the United States District Court for the Eastern District of Pennsylvania.


10.08       Entire
Agreement.  This Agreement, together
with the Exhibit and Schedules hereto and each transfer agreement covering a
Special Material, Formula or Process, each
of which is incorporated herein, constitute the entire agreement of the parties
with respect to the subject matter contained herein and supersedes any
prior agreements or understandings, written or
oral, between the parties with respect to the subject matter hereof, provided,
however, that any transfer agreement covering a Special Material,
Formula or Process executed prior to the date hereof shall remain in full force and effect in accordance with the terms
thereof.


IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the
day and year first above written.


	
  DAIKYO SEIKO, LTD.

  
	
   

  
	
   

  
	
  By 

  	
  /s/ Masamichi Sudo

  	
   

  
	
   

  	
  Masamichi Sudo, President

  	
   

  
	
   

  
	
   

  
	
  WEST PHARMACEUTICAL SERVICES, INC.

  
	
   

  
	
   

  
	
  By 

  	
  /s/ Donald E. Morel, Ph.D.

  	
   

  
	
   

  	
  Donald E. Morel, Ph.D.

  	
   

  
	
   

  	
  Chairman and Chief
  Executive Officer

  



 



 13















 


EXHIBIT A


TRANSFER AGREEMENT


This Agreement, made and
entered into this ___ day of _______, ____ by
and between ______________, a corporation organized and existing under the laws
of __________ (“the “Licensee”), and
_____________, a corporation organized and existing under the laws of
_____________(“the “Licensor”).


WITNESSETH:


WHEREAS, Licensor and
Licensee are parties to an Amended and Restated Technology Transfer and Cross
License Agreement dated January       ,
2007 between Daikyo Seiko, Ltd. and West
Pharmaceutical Services, Inc. (the “License
Agreement”) (terms not defined herein having the same meanings assigned
to such terms in the License Agreement); and


WHEREAS, the License
Agreement provides, among other things, for the licensing of certain Know-How and/or
Licensed Patents to manufacture, use and sell Licensed Products embodying a
designated Special Material, Formula or Process at a royalty rate described
therein; and


WHEREAS, the parties
desire to designate such a Special Material, Formula or Process and fix the
royalty rate applicable thereto.


NOW, THEREFORE, the
parties hereto agree as follows:


1.             The following is hereby designated as a Special
[Process] [Formula] [Material]:


2.             For purposes of determining the royalty to be paid under
the License Agreement, such Special [Process] [Formula] [Material] shall have a
Rank of “       ” [and an initial license fee of _______ shall be paid within 30 days
following execution of the Agreement by the Licensee].


3.             The Special [Process] [Formula] [Material] is covered by
the following Licensed Patent(s):


[4.            Royalties shall be assigned
separately to Know-How and the Licensed Patents in the following proportion:


% of Royalties assigned to Licensed Patent(s): _____%


% of Royalties assigned to Know-How: _____%]


5.             The Licensor shall furnish the Special [Process]
[Formula] [Material] to the Licensee for the purpose of manufacturing, using
and selling Products in accordance with the terms of the License Agreement
immediately following execution of this Agreement by Licensee.


IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to be duly executed as of the day and
year first written above.


	
   

  	
  [LICENSEE]

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [LICENSOR]

  
	
   

  	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  



 













SCHEDULE
A


TRADEMARKS


 


Daikyo Trademarks


Daikyo Flurotec


Daikyo Flurotec Closures


Daikyo Resin CZ Crystal
Innovation


CZ


West Trademarks


West Spectra


Westar


West


Diamond Logo     













 


SCHEDULE
B


PRE-EXISTING TECHNOLOGY TRANSFER
AGREEMENTS


	
  Know-How

  	
   

  	
  Rank

  	
   

  	
  Contract date

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [**]

  	
   

  	
  A

  	
   

  	
  22nd day of September, 1992

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [**]

  	
   

  	
  B

  	
   

  	
  2nd day of
  February, 1992

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [**]

  	
   

  	
  B

  	
   

  	
  10th day of May,
  1992

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [**]

  	
   

  	
  C

  	
   

  	
  2nd day of
  February, 1992

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [**]

  	
   

  	
  S

  	
   

  	
  2nd day of
  February, 1992

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [**]

  	
   

  	
  A

  	
   

  	
  19th day of July,
  2001

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [**]

  	
   

  	
  D

  	
   

  	
  31st day of October, 2003

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  [**]

  	
   

  	
  D

  	
   

  	
  31st day of October,
  2003