exv10w17









Exhibit 10.17




CROSS LICENSE AGREEMENT



THIS CROSS-LICENSE AGREEMENT (the “Agreement”) is made as of the 1st day of April, 2006 (the
“Effective Date”) between:



Cabot Corporation, a corporation organized and existing under the laws of the State of Delaware
whose principal place of business is at Two Seaport Lane, Boston, Massachusetts, 02210 (“Cabot”);
and



Aspen Aerogels, Inc., a corporation organized and existing under the laws of the State of Delaware
whose principal place of business is at 30 Forbes Road, Building B, Northborough, Massachusetts,
01532 (“Aspen”).



(Aspen and Cabot individually referred to herein as a “Party” and together as the “Parties”)



WHEREAS:



Aspen and Cabot each have patents and patent applications directed to various aspects of Aerogels,
their methods or materials of manufacture and/or uses thereof;



Aspen and Cabot are interested in licensing certain of each other’s patents;



Aspen and Cabot are also interested in licensing each other’s patent applications and granted
patents based thereon.



NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and
valuable consideration, the receipt of which is hereby acknowledged, the Parties hereby agree as
follows:





	1.	 	DEFINITIONS
	 
	1.1	 	“Aerogel(s)” shall mean a solid matrix gel with air or any other gas dispersed in it. This
includes all forms of highly-divided states (small interconnected domains with high porosity,
high surface area, and small pore size) of inorganic oxides, nonoxides, polymers, and carbons
which can be achieved only by chemical preparation of the material and cannot be created by
mechanical grinding or flame processing. This includes, by way of example, those solids which
have been dried under supercritical conditions (above the critical temperature and pressure of
the solvent) as originally conceived by S. S. Kistler in 1932 for which the name aerogel was
given as well as solids which have been dried directly from a solvent but with minimal
shrinkage.
	 
	1.2	 	“Aspen Blanket” shall mean a fiber reinforced Aerogel blanket or products derived therefrom.
	 
	1.3	 	“Affiliates” shall mean, with respect to either Party, any entity which directly or
indirectly controls, is controlled by, or under common control with, such Party. For the
purposes of this definition, “controls” (including, with correlative meanings, “control,”




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



 









 






	 	 	“controlled by,” and “under common control with”) means
the power to direct or cause the direction of the
management and policies of such entity or party, as the
case may be, directly or indirectly, whether through the
ownership of voting securities, by contract, or
otherwise. With respect to a corporation, limited
liability company, partnership or other legal entity,
“control” will also mean direct or indirect ownership of
more than fifty percent (50%) of the voting stock,
limited liability company interest, general partnership
interest or voting interest in any such corporation,
limited liability company, partnership or entity.
	 
	1.4	 	“Aspen Field of Use” shall mean
	 
	 	 	(1) the manufacture of the Aspen Blanket, using only [***] or oligomers of the foregoing, or any combinations thereof as primary
feedstock, provided, however,






	 	(a)	 	that at least [***]% by weight of the Aerogel Structure of the Aspen Blanket
shall be derived from these primary feedstock materials; and,
	 
	 	(b)	 	the use of [***] shall be no more than [***]% by weight of the
Aerogel Structure of the Aspen Blanket, and
	 
	 	(c)	 	wherein the aforementioned manufacture shall have as its predominant means of
drying (i.e. solvent removal), a step that uses a fluid which is at least [***]% (by
volume) supercritical carbon dioxide, at a pressure of about [***] psi or greater, and
	 
	 	(2)	 	the use and sale of the Aspen Blanket for energy dissipation, Separation, sound or
thermal insulation applications.






	1.5	 	“Cabot Field of Use” shall mean
	 
	 	 	(1) the manufacture of Aerogels, using only [***] or derivatives of the foregoing (other
than [***]), or any combinations thereof as primary feedstock,
provided, however, that at least [***]% of the Aerogel Structure of the Aerogels shall be
derived from these primary feedstock materials and wherein the aforementioned manufacture
shall have as its predominant means of drying (i.e. solvent removal), drying at a pressure
that is less than about [***] psi, of Aerogels, and
	 
	 	 	(2) the use and sale of such Aerogels for energy dissipation, Separation, sound or thermal
insulation applications.
	 
	1.6	 	“Change of Control” shall mean the happening of any of the following to occur:






	 	(a)	 	If, with respect to either Party, any person or entity or group of persons or
entities acting in concert acquires ownership of or the right to vote or to direct the
voting




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



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	 		 	of shares of capital stock of such Party representing 50% or more of the total
voting power of such Party; or
	 
	 	(b)	 	Either Party shall have merged into or consolidated with another entity, or
merged another entity into the Party, on a basis whereby less than 50% of the total
voting power of the surviving entity is represented by shares held by former
shareholders of the Party prior to such merger or consolidation; or
	 
	 	(c)	 	Either Party shall have sold substantially all of its Aerogel assets to another
corporation, entity or person, excluding Affiliates, excluding a sale pursuant to a
bankruptcy or insolvency proceeding.






	 	 	Notwithstanding anything set forth in (a)-(c) above, a Change of Control shall not include a
Qualified Public Offering (“QPO”) as such term is defined in the Amended and Restated
Charter of Aspen as of the date of this Agreement.
	 
	1.7	 	“[***]” shall mean [***] of the following compounds: [***].
	 
	1.8	 	“Issued Patents” shall mean any and all patents worldwide that have issued as of the
Effective Date and their corresponding counterpart applications pending elsewhere in the world
and patents issued from such counterpart applications, which as of the Effective Date (a) are
owned, controlled or licensed by a Party, and (b) a Party has the right to license without
accounting to others, and (c) claim Aerogels, their methods or materials of manufacture and/or
uses thereof.
	 
	1.9	 	“Aspen Issued Patents” shall mean those Issued Patents of Aspen and its Affiliates necessary
for Cabot to practice within the Cabot Field of Use.
	 
	1.10	 	“Cabot Issued Patents” shall mean those Issued Patents of Cabot and its Affiliates necessary
for Aspen to practice within the Aspen Field of Use. Without limiting the foregoing, Cabot
Issued Patents shall specifically exclude all patents and/or patent applications licensed to
Cabot from [***] (“[***]”) pursuant to the [***] Licensing and Joint
 Development Agreement by
and between Cabot and [***] dated [***].
	 
	1.11	 	An “Event of Default” shall mean the happening of any of the following events:






	 	(a)	 	Aspen fails to pay Cabot when and as required to be paid herein any amount
payable hereunder, including, but not limited to Aspen’s payment obligations in
Sections 4.1(a) and 6.5 hereunder; or
	 
	 	(b)	 	Either Party fails to perform or observe any other material covenant or
agreement (not specified in subsection (a) above) contained in this Agreement to be
performed or observed on its part or




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



3









 






	 	(c)	 	Any material representation, warranty or certification made by or on behalf of
either Party herein shall be incorrect, or misleading, in any material respect when
made; or
	 
	 	(d)	 	Cabot is unable to exchange its Equity Investment Credit at an Equity Closing,
as contemplated in Section 4.1(b)(i) hereof provided an Equity Closing occurs prior to
the expiration of 120 days following the execution of this Agreement; or
	 
	 	(e)	 	If no Equity Closing occurs prior to the expiration of 120 days following the
execution of this Agreement and Cabot is unable to exchange its Equity Investment
Credit for Series D Preferred Stock of Aspen, as contemplated by Section 4.1(b)(iii),
within 180 days following the execution of this Agreement; or
	 
	 	(f)	 	Aspen fails to raise a total of at least $35,000,000 in debt and/or equity
financings between the date of execution of this Agreement and September 30, 2007.






	1.12	 	“Equity Closing” shall mean the closing and funding of the next round of equity financing in
Aspen by investors contemplated in Section 4.1 (b) below, which shall include at least one
Lead Investor, currently contemplated to occur within 120 days of the execution of this
Agreement, in an amount of at least $35,000,000, excluding the Equity Investment Credit.
	 
	1.13	 	“Lead Investor” shall mean a new equity investor (other than Cabot) in Aspen who shall, at
the Equity Closing, make the largest investment equal to or in excess of $10,000,000.
	 
	1.14	 	“[***]” shall mean the following compounds: [***].
	 
	1.15	 	“Patent Applications and Acquired Patents” shall mean, excluding those applications described
in Section 1.8: (a) any (i) original or provisional applications; and (ii) continuations,
continuations-in-part, divisionals, reissues or re-exams of Issued Patents that as of the
Effective Date either Party or its Affiliates has the right to license without accounting to
others, which are owned (by assignment or assignment obligation), controlled, acquired or
licensed by a Party or its Affiliates, and which claim Aerogels, their methods or materials of
manufacture and/or uses thereof and that are pending either as of the Effective Date or at any
time during the Period, or claim priority to an application pending either as of the Effective
Date or at any time during the Period, and issued patents based thereon; and (b) any and all
worldwide issued patents licensed or acquired by a Party or its Affiliates, and which claim
Aerogels, their methods or materials of manufacture and/or uses thereof that: (i) said Party
or its Affiliates: has the right to license without accounting to others at any time during
the Period, or (ii) claims priority to an owned, controlled, acquired or licensed application
of a Party or its Affiliates pending either as of the Effective Date or at any time during the
Period.
	 
	 	 	For purposes of this definition and as used in Section 3.4 below, “Period” shall mean the
term between the Effective Date and the five year anniversary of the Effective Date and




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



4









 






	 	 	“Shortened Period” shall mean the term between the Effective Date and the date of a Change
of Control of a Party.
	 
	1.16	 	“Licensed Intellectual Property” shall mean (a) either Cabot Issued Patents or Aspen Issued
Patents licensed hereunder, and (b) either Party’s Patent Applications and Acquired Patents
licensed hereunder.
	 
	1.17	 	“Aerogel Structure” shall mean the mass of the primary 3-dimensional structure derived from
the sol-gel step. This explicitly excludes the mass of any fiber, functionality enhancing
additives and other treatments.
	 
	1.18	 	“Separation” shall mean the separation of one or more components from a mixture of
components.
	 
	2.	 	CROSS LICENSE OF ISSUED PATENTS






	 	(a)	 	Subject to the terms and conditions of this Agreement, Cabot hereby grants to
Aspen as of the Effective Date, under Cabot Issued Patents, a non-exclusive, worldwide
license, to make, have made, use and sell the Aspen Blanket solely in the Aspen Field
of Use. This license shall include the right to grant sublicenses to (i) Aspen’s
customers but only for their use of the Aspen Blanket in energy dissipation,
Separation, sound or thermal insulation end-use applications and (ii) Aspen’s
Affiliates (so long as such entity remains an Affiliate of Aspen). Such license will
become effective as of the Effective Date and shall continue to be effective until the
last to expire of the Cabot Issued Patents. This license may not be assigned or
sublicensed to any third party without Cabot’s prior written consent except as
expressly delineated herein.
	 
	 	(b)	 	Subject to the terms and conditions of this Agreement, Aspen hereby grants to
Cabot as of the Effective Date, under the Aspen Issued Patents, a non-exclusive,
worldwide license, to make, have made, use and sell Aerogels, solely in the Cabot Field
of Use. This license shall include the right to grant sublicenses to (i) Cabot’s
customers but only for their use of the products in energy dissipation, Separation,
sound or thermal insulation end-use applications and (ii) Cabot’s Affiliates (so long
as such entity remains an Affiliate of Cabot). This license shall continue to be
effective until the last to expire of the Aspen Issued Patents. This license may not
be assigned or sublicensed to any third party without Aspen’s prior written consent
except as expressly delineated herein.
	 
	 	(c)	 	The above licenses shall be retroactive from the earlier of the date of grant
or publication of the respective Party’s Issued Patents.
	 
	 	(d)	 	Cabot agrees to maintain U.S. Patent [***] and its currently maintained foreign
counterparts (“[***] Patents”) for their entire term, and Cabot represents and warrants
that the [***] Patents are included within the Cabot Issued Patents.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



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	 	(e)	 	The Parties each agree not to sell, transfer, pledge or mortgage its respective
Issued Patents or its Patent Applications and Acquired Patents except any Change of
Control that includes a sale of either Party’s Aerogel business shall not be a
prohibited sale for purposes of this paragraph.
	 
	 	(f)	 	In the event of a Change of Control, the Parties agree that any intellectual
property rights held by an acquiror prior to the Change of Control shall not be deemed
Issued Patents hereunder.




Except as a joined party by [***], to the extent that Cabot has any right to enforce any patents
and/or patent applications licensed to Cabot from [***] pursuant to the [***] Licensing and Joint
Development Agreement by and between Cabot and [***] dated [***] (the “[***] Patents/Patent
Applications”) or patents emanating from the [***] Patents/Patent Applications, Cabot agrees that
it will not bring any infringement action against Aspen under, or attempt to enforce against Aspen,
any such rights. Notwithstanding the foregoing, nothing herein shall be construed as limiting
and/or affecting, in any way, [***]’s right to assert its patents or applications against Aspen.





	3.	 	CROSS LICENSE OF PATENT APPLICATIONS AND ACQUIRED PATENTS
	 
	3.1	 	Subject to the terms and conditions of this Agreement, Cabot agrees to grant to Aspen as of
the Effective Date a non-exclusive, worldwide license to practice any invention claimed in its
Patent Applications and Acquired Patents, only with respect to Aerogels and/or the Aspen
Blanket manufactured using as its predominant means of drying (i.e. solvent removal), a step
that uses a fluid which is at least [***]% (by volume) supercritical carbon dioxide, at a
pressure of about [***] psi or greater. Such license shall be effective until the last to
expire of the issued patents (as included in the definition in Section 1.15) and includes the
right to sublicense only its customers to use products in any end-use applications. This
license may be sublicensed to any Affiliate of Aspen, so long as such entity remains an
Affiliate of Aspen. Notwithstanding the foregoing, (i) any claims to uses in the field of
[***] in any of Cabot’s intellectual property described in Section 1.15 are not licensed by
Cabot to Aspen under this Agreement; and (ii) Aspen may not use Cabot’s intellectual property
described in Section 1.15 to manufacture or sell the Aerogels and/or the Aspen Blanket where
the so manufactured or sold Aerogels and/or the Aspen Blanket is intended to be used in the
field of [***]. The restrictions stated in (i) and (ii) of the preceding sentence shall run
concurrent with the restrictions Cabot has or may have with [***] on licensing and/or selling
into the field of [***] and shall cease when such restrictions cease. Cabot agrees to
promptly notify Aspen following the time when such restrictions cease.
	 
	3.2	 	Subject to the terms and conditions of this Agreement, Aspen hereby grants to Cabot as of the
Effective Date a non-exclusive, worldwide license to practice any invention claimed in its
Patent Applications and Acquired Patents only with respect to Aerogels wherein the method of
manufacture shall have as its predominant means of drying (i.e. solvent removal) drying at a
pressure that is less than about [***] psi. This license shall




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



6









 






	 	 	be effective until the last to expire of the issued patents (as included in the definition
in Section 1.15) and includes the right to sublicense only its customers to use products in
end-use applications. This license may be sublicensed to any Affiliate of Cabot, so long as
such entity remains an Affiliate of Cabot.
	 
	3.3	 	Other than as expressly provided in this Agreement, nothing herein shall be deemed a grant or
license, directly or indirectly, under any Issued Patents, Patent Applications and Acquired
Patents, or any other intellectual property right (including, without limitation, know-how and
trade secrets) of either party. More specifically, in the event claims of an Issued Patent
dominate an invention claimed in a Patent Application and Acquired Patent in a particular
jurisdiction, the practice of the invention in such Patent Application is restricted by a
party’s Field of Use.
	 
	3.4	 	In the event of a Change of Control of a Party before the expiration of the Period (referred
to in Section 1.15), the other Party shall have the sole option to change such Period to the
Shortened Period.
	 
	3.5	 	The above licenses, once effective, shall be retroactive from the earlier of the date of
grant or publication of the respective Patent Applications and Acquired Patents.
	 
	3.6	 	In the event of a Change of Control, the Parties agree that any intellectual property rights
held by an acquiror prior to the Change of Control shall not be deemed Patent Applications and
Acquired Patents hereunder.
	 
	4.	 	FEES PAYABLE TO CABOT
	 
	4.1	 	In consideration of avoiding potential claims on prior use of the Cabot Issued Patents and
avoiding legal fees associated therewith, and upon due execution and delivery of this
Agreement by the Parties, Aspen agrees to pay Cabot a non-refundable fee of Twenty-four
Million Dollars ($24,000,000) payable in two forms, cash and equity, as follows:






	 	(a)	 	Cash Payment






	 	(i)	 	Aspen shall pay Cabot a total of Eight Million Dollars
($8,000,000) cash in ten equal semi-annual installments of Eight-Hundred
Thousand Dollars ($800,000) each commencing the sooner of September 1, 2006 or
thirty (30) days after the Equity Closing.
	 
	 	(ii)	 	All payments shall be made by wire transfer to such bank
account as designated by Cabot in writing.
	 
	 	(iii)	 	In the event of a Change of Control of Aspen, the unpaid
balance of the Eight Million Dollar payment shall become immediately due and
payable to Cabot within 30 days of such Change of Control.






	 	(b)	 	Equity Payment




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



7









 












	 	(i)	 	Aspen hereby grants Cabot a credit to be applied to an equity
investment in Aspen of Sixteen Million Dollars ($16,000,000) (the “Equity
Investment Credit”) for shares of convertible preferred stock of Aspen upon
terms and conditions outlined below. The value of the Equity Investment Credit
shall be $16,000,000 based on an expectation by the Parties that the total post
money value of Aspen after the Equity Closing (including such Equity Investment
Credit) (“Aspen’s Value”) will be not greater than $240 Million. In the event
that Aspen’s Value is to exceed $240 Million at the Equity Closing, Cabot’s
Equity Investment Credit shall be increased proportionately based on the
increase in Aspen’s Value at such time.
	 
	 	(ii)	 	In preparation of the Equity Closing, the Parties shall prepare
and at the Equity Closing enter into a Share Purchase Agreement, a
Stockholders’ Agreement and any other agreements necessary to enable Cabot to
apply its Equity Investment Credit for convertible preferred shares (the
“Equity Series”) in Aspen. The Parties have agreed that the stock provided at
the Equity Closing will contain all the same legal and economic rights and
privileges for Cabot as for the Lead Investor, except that in those certain
cases set forth in Schedule B attached hereto where the Equity Series
is entitled to vote on certain matters separately as a class, the requisite
approval by the Equity Series will be determined without reference to
the shares held by Cabot, and Cabot will then vote its shares of the Equity Series
in the same proportion as the other holders of such Series. Without limiting
the foregoing, Cabot shall have no vote for any representative on the board of
directors of Aspen but will have the same registration rights granted to such
Lead Investor, excluding the right to require an S-1 registration. In all other
respects, Cabot shall have the same voting rights and privileges as all other
holders of the Equity Series. The Share Purchase Agreement shall provide that
Cabot shall have no access to information regarding Aspen, in its capacity as a
shareholder of or investor in Aspen, other than the annual audited financial
statements of Aspen commencing with those as of December 31, 2006 and the right
to have informal discussions with the President of Aspen on a quarterly basis,
during which no confidential or proprietary information of Aspen shall be
discussed. Said annual audited financial statements shall be furnished to
Cabot promptly upon becoming available, but in any event within 10 business
days of the date they are issued by Aspen’s auditors. Finally, the Parties
agree that the Share Purchase Agreement shall include an undertaking by Aspen
to cause its legal counsel to deliver to Cabot at the Equity Closing a legal
opinion in form and substance substantially identical to that opinion delivered
to the other holders of the convertible preferred securities of Aspen with
respect to all matters, including, but not limited to due incorporation,
authorization and issuance of shares, approvals and the like.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



8









 






	 	(iii)	 	In the event that the Equity Closing does not occur within 120
days of the date of the execution of this Agreement or, the Equity Closing does
not provide Cabot the ability to apply its Equity Investment Credit as
contemplated herein for whatever reason, Cabot may require Aspen to enter into
all necessary agreements and obtain all necessary approvals required to apply
Cabot’s Equity Investment Credit for shares of convertible preferred stock in
Aspen upon the following terms:






	 	(1)	 	The investment shall be on terms no less
favorable than those provided the Series D Preferred Shareholders,
including their per share price, and shall provide Cabot rights and
privileges equal to or superior to those already existing for the
Series D Preferred Shareholders. The Parties shall enter into a Share
Purchase Agreement and a Stockholder’s Agreement and any other
agreement necessary to effectuate application of the Equity Investment
Credit as provided for in this subsection. The Series D Preferred
Stock issued to Cabot will contain all the same legal and economic
rights and privileges for Cabot as for the lead investor in the
original Series D round. Notwithstanding the foregoing, the same
rights and exceptions outlined in Section 4.1(b)(ii) shall apply to the
foregoing agreements, and Cabot shall be furnished with an opinion of
counsel as described above.
	 
	 	(2)	 	In addition, if, after the issuance of Series D
Preferred Stock of Aspen to Cabot pursuant to this Section 4.1(b)(iii)
but prior to a QPO, Aspen shall have an equity financing which meets
the definition of “Equity Closing” at a valuation lower than the
implied post money valuation of Aspen under its original Series D
financing round ($150,000,000), the conversion price of the Series D
Preferred Stock issued to Cabot under this Section 4.l(b)(iii) shall be
reduced to give Cabot the same valuation as that received by the Lead
Investor at said Equity Closing. In other words, Cabot shall have full
ratchet anti dilution protection with respect to said equity financing
round.
	 
	 	(3)	 	The agreements identified in Section
4.1(b)(iii)(1) above shall provide for a closing to enable Cabot to
apply its Equity Investment Credit as outlined above not later than six
(6) months from the date of the execution of this Agreement and, in any
event, prior to any QPO.






	 	(iv)	 	When Cabot acquires shares in Aspen in exchange for the Equity
Investment Credit as outlined in paragraphs (ii) or (iii) above, Cabot agrees
to provide Aspen with appropriate and customary representations and warranties,
including:




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



9









 












	 	(1)	 	That it would be acquiring such shares for
investment for its own account, not as a nominee or agent, and not with
the view to, or for resale in connection with, any distribution of any
part thereof;
	 
	 	(2)	 	That it understands that such shares to be
acquired have not been registered under the Securities Act of 1933, as
amended (the “Securities Act”), or applicable state and other
securities laws by reason of a specific exemption from the
registrations provisions of the Securities Act and applicable state and
other securities laws, the availability of which depends upon, among
other things, the bona fide nature of the investment intent and the
accuracy of Cabot’s representations as expressed therein.
	 
	 	(3)	 	That it understands any transfer agent of Aspen
shares will issue stop-transfer instructions with respect to such
shares unless any transfer thereof is subsequently registered under the
Securities Act and applicable state and other securities laws or unless
an exemption from such registration is available.






	5.	 	REPRESENTATIONS, WARRANTIES AND DISCLAIMERS
	 
	5.1	 	(a) Cabot represents and warrants that it has the right to grant to Aspen the licenses set
forth in this Agreement.






	 	(b)	 	Except as provided in sub-paragraph (a) of this Section and Section 2.1(d)
above, Cabot makes no representation or gives any warranty with respect to the Licensed
Intellectual Property licensed hereunder by Aspen. Cabot shall have no responsibility
with respect to either (a) the use made of the Licensed Intellectual Property by Aspen
or any third party or (b) any products made by Aspen or any third party under the
Licensed Intellectual Property.
	 
	 	(c)	 	Without limiting the generality of the foregoing, Cabot: (a) shall under no
circumstances be liable for any loss, damage, personal injury or death resulting from,
arising out of or connected with (i) the use by Aspen under this Agreement of the
Licensed Intellectual Property made available hereunder or (ii) the use by Aspen or any
third party of any products manufactured under the Licensed Intellectual Property.






	5.2	(a) 	 	Aspen represents and warrants that it has the right to grant to Cabot the licenses set
forth in this Agreement, including, but not limited to licenses under the following US patents
and applications associated with the following publications (including their corresponding
counterpart applications pending elsewhere in the world and/or all applications claiming
priority to same): [***];[***] (limited to Aerogel related subject matter); [***] (limited to
Aerogel related subject matter); [***] (limited to Aerogel related subject matter); [***];
[***]; [***]; and [***].




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



10









 












	 	(b)	 	Except as provided in sub-paragraph (a) of this Section, Aspen makes no
representation or gives any warranty with respect to the Licensed Intellectual Property
licensed hereunder by Cabot. Aspen shall have no responsibility with respect to either
(a) the use made of the Licensed Intellectual Property by Cabot or any third party or
(b) any products made by Cabot or any third party under the Licensed Intellectual
Property.
	 
	 	(c)	 	Without limiting the generality of the foregoing, Aspen: (a) shall under no
circumstances be liable for any loss, damage, personal injury or death resulting from,
arising out of or connected with (i) the use by Cabot under this Agreement of the
Licensed Intellectual Property made available hereunder or (ii) the use by Cabot or any
third party of any products manufactured under the Licensed Intellectual Property.






	5.3	 	Neither party gives any warranty regarding the validity of its Licensed Intellectual Property
or that the utilization of its Licensed Intellectual Property will not result in the
infringement of any third party’s patent, and grants no indemnity against any costs, damages,
expenses or royalties resulting from any action taken by such third party. With respect to
the Licensed Intellectual Property, neither party shall have any liability hereunder for any
consequential, incidental, indirect, special or punitive damages.
	 
	5.4	 	EXCEPT AS SET FORTH IN THIS ARTICLE 5, THERE ARE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR
IMPLIED, CONCERNING THE LICENSED INTELLECTUAL PROPERTY LICENSED HEREUNDER, AND NO SUCH
WARRANTIES OR REPRESENTATIONS SHALL BE IMPLIED UNDER ANY APPLICABLE LAW OR IN EQUITY,
INCLUDING WITHOUT LIMITATION, A WARRANTY OF MERCHANTABILITY AND A WARRANTY OF FITNESS FOR A
PARTICULAR PURPOSE OR ANY OTHER WARRANTY WHICH MAY BE IMPLIED UNDER COMMON LAW OR UNDER THE
UNIFORM COMMERCIAL CODE OF ANY STATE OR OTHER JURISDICTION OF THE UNITED STATES OF AMERICA.
	 
	5.5	 	Aspen hereby represents and warrants that it has, or with respect to any preferred stock to
be issued to Cabot pursuant to Section 4.1(b) will have on or prior to the closing date of the
issuance of such preferred shares, the full right, power and authority, including any
shareholder or Board of Director approvals which may be required under its Charter, Bylaws or
otherwise to enter into this Agreement, and at the Closing, to transfer to Cabot the shares of
Aspen contemplated in Section 4.1 (b).
	 
	5.6	 	Aspen hereby represents and warrants that it is not a party to, subject to or bound by any
agreement or any judgment, order, writ, prohibition, injunction or decree of any court or
other governmental body which would prevent the execution or delivery of this Agreement or the
consummation of the transactions contemplated herein, provided, however, that the issuance of
the preferred shares to Cabot as contemplated by Section




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



11









 






	 	 	4.1(b) will be subject to obtaining the necessary consents from the Board of Directors and
Stockholders and appropriate amendments to the Certificate of Incorporation of Aspen.
	 
	5.7	 	Aspen hereby represents and warrants that it is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, and has all requisite
power and authority (corporate and otherwise) to own its properties, to carry on its business
as now being conducted, to execute and deliver this Agreement and the agreements contemplated
herein, and to consummate the transactions contemplated hereby and thereby. Aspen is duly
qualified to do business and is in good standing in all jurisdictions in which its ownership
of property or the character of its business requires such qualification. Aspen has furnished
Cabot with copies of its most current Certificate of Incorporation, Bylaws and Shareholders
Agreement currently in effect and such copies are true, correct and complete and contain all
amendments as of the Effective Date.
	 
	5.8	 	Aspen hereby represents and warrants that as of the date of this Agreement the authorized
capital stock of Aspen as of the Effective Date consists of 58,321,710 shares of Common Stock,
having a par value of $0.01 and 24,688,009 shares of Preferred Stock, having a par value of
$0.01. A summary capitalization table of Aspen is attached hereto as Schedule A,
which table shows the number of shares of common stock, or common stock equivalents in the
case of preferred stock, stock purchase warrants and stock options issued or issuable under
Aspen’s equity and incentive plans as of the date of this Agreement.
	 
	5.9	 	Aspen hereby represents and warrants that: (a) the execution and delivery by Aspen of this
Agreement and the agreements provided for herein, and the consummation by Aspen of all
transactions contemplated hereunder and thereunder by Aspen, have been (or will be at the time
such agreements may be entered into and/or such transactions consummated) duly authorized by
all requisite corporate action, including, but not limited to any required shareholder
approval. (b) This Agreement has been duly executed by Aspen. (c) This Agreement and all
other agreements and obligations entered into and undertaken in connection with the
transactions contemplated hereby to which Aspen is a party constitute the valid and legally
binding obligations of Aspen, enforceable against it in accordance with its respective terms.
(d) The execution, delivery and performance by Aspen of this Agreement and the agreements
provided for herein, and the consummation by Aspen of the transactions contemplated hereby and
thereby, will not, with or without the giving of notice or the passage of time or both, (i)
violate the provisions of any law, rule or regulation applicable to Aspen; (ii) violate the
provisions of the Certificate of Incorporation or Bylaws of Aspen; (iii) violate any judgment,
decree, order or award of any court, governmental body or arbitrator; or (iv) conflict with or
result in the breach or termination of any term or provision of, or constitute a default
under, or cause any acceleration under, or cause the creation of any lien, charge or
encumbrance upon the properties or assets of Aspen pursuant to, any indenture, mortgage, deed
of trust or other instrument or agreement to which Aspen is a party or by which Aspen or any
of its properties is or may be bound, provided, however, that the
issuance of the preferred shares to Cabot as contemplated by Section 4.1(b) will be subject to obtaining the




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



12









 






	 	 	necessary consents from the Board of Directors and Stockholders and appropriate amendments
to the Certificate of Incorporation of Aspen.
	 
	5.10	 	Cabot hereby represents and warrants that: (a) the execution and delivery by Cabot of this
Agreement and the agreements provided for herein, and the consummation by Cabot of all
transactions contemplated hereunder and thereunder by Cabot, have been duly authorized by all
requisite corporate action. (b) This Agreement has been duly executed by Cabot. (c) This
Agreement and all other agreements and obligations entered into and undertaken in connection
with the transactions contemplated hereby to which Cabot is a party constitute the valid and
legally binding obligations of Cabot, enforceable against it in accordance with its respective
terms. (d) The execution, delivery and performance by Cabot of this Agreement and the
agreements provided for herein, and the consummation by Cabot of the transactions contemplated
hereby and thereby, will not, with or without the giving of notice or the passage of time or
both, (i) violate the provisions of any law, rule or regulation applicable to Cabot; (ii)
violate the provisions of the Certificate of Incorporation or Bylaws of Cabot; or (iii)
violate any judgment, decree, order or award of any court, governmental body or arbitrator.
	 
	5.11	 	Each Party respectively represents and warrants that as and from the Effective Date neither
of them have sold, transferred, pledged or mortgaged its Issued Patents or its Patent
Applications and Acquired Patents, respectively.
	 
	5.12	 	Without making any representations or warranties regarding the performance of any due
diligence in this regard, Cabot represents to Aspen that as of the Effective Date, it has no
actual knowledge that Aspen is infringing any patent of Cabot’s other than the [***] Patent.
	 
	6.	 	MUTUAL AGREEMENTS AND COVENANTS
	 
	6.1	 	Both Parties hereby agree that neither Party is now, nor will be in the future, obliged by
virtue of this Agreement or any agreements contemplated to be entered into in furtherance of
this Agreement, to furnish any technical information or know-how to the other Party.
	 
	6.2	 	Both Parties hereby agree that they will act in good faith in carrying out the transactions
contemplated in this Agreement and in particular, neither Party will use joint development of
technology, transfer of Licensed Intellectual Property ownership or licenses with third
parties to circumvent the intent of this Agreement with respect to the agreements contained
herein concerning intellectual property.
	 
	6.3	 	The Parties agree that the right to bring suit against infringers or alleged infringers of
the Licensed Intellectual Property shall reside at all times solely with (a) Cabot, with
respect to Cabot Issued Patents and Cabot’s Patent Applications and Acquired Patents and (b)
Aspen with respect to Aspen Issued Patents and Aspen’s Patent Applications and Acquired
Patents. A party’s decision as to whether or not to bring suit against any




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



13









 






	 	 	infringer or alleged infringer of its Licensed Intellectual Property shall be accepted as
final by the other Party.
	 
	6.4	 	Nothing in this Agreement shall be construed as an admission by any party of infringement of
any patent held by the other party.
	 
	6.5	 	Aspen hereby agrees to pay Cabot the same proportionate amount of any damages recovered or
settlements it pays to any of the holders of the same class of convertible preferred
securities of Aspen that Cabot acquires pursuant to either Sections 4.l(b)(i) or (iii) above
(the “Other Holders”) within 5 days of any payment made to the Other Holders for the breach of
any material representation, warranty or certification made by Aspen in the Share Purchase
Agreement entered into by the Other Holders, or in any document delivered to the Other Holders
in connection therewith.
	 
	6.6	 	Each Party agrees that it will not bring any legal challenge to the validity of any Licensed
Intellectual Property so long as this Agreement shall not have been terminated in whole or in
part.
	 
	7.	 	TERM AND TERMINATION
	 
	7.1	 	This Agreement shall become effective on the Effective Date, and unless sooner terminated as
provided herein below, shall continue until the expiration of the last to expire of the Issued
Patents or Patent Applications and Acquired Patents licensed hereunder, at which time it shall
expire. Any termination or expiration of this Agreement shall not affect any obligations on
the part of Aspen to pay any of the consideration set forth in Article 4 to Cabot, except that
such payment obligations shall terminate (a) where on account of an Event of Default by Cabot,
Aspen either terminates the licenses it has granted hereunder to Cabot or terminates this
Agreement in its entirety, or (b) if Cabot should terminate the Agreement on account of an
Event of Default described in Section 1.11(f).
	 
	7.2	 	Upon the occurrence of an Event of Default by either Party (as defined in Section 1.11 above)
the non-defaulting Party shall have the right to terminate this Agreement in whole or in part,
as provided for in this Section, provided such Party has given the defaulting Party (a)
written notice detailing the default (the “Default Notice”) and (b) a 30 day cure period to
remedy the default (the “Cure Period”) which shall run as from the date of delivery of the
Default Notice. Within 60 days of the expiration of the Cure Period the non-defaulting Party
shall provide written notice to the defaulting Party of its election to terminate this
Agreement in its entirety or to partially terminate the Agreement by terminating all of the
licenses it has granted under this Agreement to the defaulting Party (“Partial Termination”).
In the case of Partial Termination the non-defaulting party shall continue to hold the
licenses granted by the defaulting Party under this Agreement and the defaulting Party shall
continue to be obligated to comply with the provisions of this Cross License Agreement with
respect thereto. Any termination of this Agreement pursuant to this Section shall be in
addition to, and shall not be exclusive of or prejudicial to, any rights or remedies said
non-defaulting party may have on account of any default




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



14









 






	 	 	hereunder, including, but not limited to the non-defaulting party’s right to proceed to
protect its rights by suit in equity, action at law and/or other appropriate proceeding
either for specific performance of any covenant or condition contained in this Agreement.
	 
	 	 	Without limiting the foregoing, should Cabot terminate this Agreement on account of an Event
of Default described in Sections 1.11(d) or (e), Cabot shall have the right, irrespective of
whether any cash payments have been made to Cabot pursuant to Paragraph 4.1(a), to (a)
revoke, effective as of the earlier of the date of grant or publication of its pertinent
Issued Patents, any licenses granted herein and (b) commence against Aspen any suit, action
or proceeding of any kind based upon assertion of infringement of any Issued Patent.
	 
	 	 	Notwithstanding the foregoing, should Cabot terminate this Agreement on account of an Event
of Default described in Section 1.11(f), such termination must be a termination of this
Agreement in its entirety, and Cabot shall return to Aspen, without consideration, any and
all equity securities of Aspen it may have received from Aspen, and such securities shall be
deemed cancelled as of the date of such termination.
	 
	8.	 	CONFIDENTIALITY AND PUBLIC ANNOUNCEMENTS
	 
	8.1	 	Except as required by applicable laws, the Parties agree to maintain the economic terms of
this Agreement in confidence and shall not disclose to any third party other than their
respective board of directors, investors, bankers or other similar parties who have a need to
know except with prior written approval of the other Party.
	 
	8.2	 	Neither Party shall issue any press release or make any such public statement relating to the
subject matter of this Agreement prior to consultation with and securing written approval of
the other Party. Upon request by any regulatory or administrative body or court of law for
information relating to this Agreement, each Party agrees to notify the other of such request
and upon providing any such information request confidential treatment of such information by
the requesting regulatory or administrative body or court of law.
	 
	9.	 	ASSIGNMENT
	 
	9.1	 	Neither this Agreement nor any interest herein may be assigned, in whole or in part, by
either Party without the prior written consent of the other Party, which consent shall not be
unreasonably withheld, except that either Party may assign its rights and obligations to (a)
any Affiliate of an assigning Party, provided however, that such assignment shall not relieve
the assigning Party of its performance obligations under this Agreement, or (b) to a successor
entity in a Change of Control transaction, provided the successor entity agrees in writing to
be bound by all of the terms of this Agreement. Notwithstanding the foregoing, no assignment
may be made by any trustee or representative of either Party in any bankruptcy or insolvency
proceeding without the prior written consent of the non-assigning Party. Any purported
assignment in contravention of the above shall be void.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



15









 






	10.	 	APPLICABLE LAW AND DISPUTE RESOLUTION
	 
	10.1	 	This Agreement shall be construed and enforced in accordance with the laws of the
Commonwealth of Massachusetts, without reference to its conflict of laws principles that might
direct or refer determination of any such matter to the laws of any other jurisdiction.
	 
	10.2	 	The Parties shall endeavor to settle any dispute arising in connection with the
interpretation, performance or termination of, or otherwise in connection with, or between the
Parties to, this Agreement, through mutual consultation and negotiation. If no settlement can
be reached through consultations of senior corporate management of the Parties within 30 days
of one Party delivering a written notice of the dispute to the other Party, then such matter
may be finally settled by any court of competent jurisdiction. Nothing herein shall amend
either Party’s right to declare a termination in whole or in part of this Agreement as
contemplated in Section 7.2 above.
	 
	11.	 	NOTICE
	 
	11.1	 	It shall be sufficient giving of any notice, request or other communication in writing under
this Agreement by a Party to this Agreement to the other Party if the Party desiring to give
such notice, request or other communication in writing shall cause the notice to be personally
delivered or sent by registered mail, telefax or recognized overnight delivery service
properly addressed to the other Party at the address set forth below, or at such other address
as the other party shall hereafter designate in writing. The date of giving of any such
notice or other communication in writing shall be the date on which said copy was so delivered
or sent properly addressed as aforesaid.





	 	 	 	 	 

	 

	 	General Manager Aerogels
	 	President
	 

	 	Cabot Corporation
	 	Aspen Aerogels, Inc.
	 

	 	Two Seaport Lane
	 	30 Forbes Road
	 

	 	Suite 1300
	 	Building B
	 

	 	Boston, MA 02210
	 	Northborough, MA 01532







	12.	 	FORCE MAJEURE
	 
	12.1	 	Neither Party shall be liable or penalized for its failure to perform any act or provide any
right which it is obligated to perform or provide hereunder due to contingencies beyond its
reasonable control (a “Force Majeure Event”), including but not limited to: acts of God,
fires, floods, wars, sabotage, terrorism, accidents, epidemics, quarantine, labor disputes or
shortages of manpower, governmental laws, judgments, ordinances, rules and regulations,
whether valid or invalid, and inability to obtain material, power, equipment, or
transportation, provided, however, that under no circumstances shall either Party be relieved
of any payment obligations due hereunder because of a Force Majeure Event. The Party whose
performance was prevented by any such contingency shall have the right to extend any time
period during which it was obligated to perform hereunder for an additional period of time
equal to the time its performance was prevented.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



16









 






	13.	 	NON WAIVER
	 
	13.1	 	The failure of a party hereto at any time to exercise any of its rights or options under this
Agreement, except rights and options specifically limited as to a date or time of exercise
thereof, shall not be construed to be a waiver of such rights or options, or prevent such
party from subsequently asserting or exercising such rights or options.
	 
	14.	 	SEVERABILITY
	 
	14.1	 	Should any of the terms of this Agreement be or become fully or partly invalid, the legal
validity of the Agreement shall not be affected thereby. This applies also to any possible
omission which may be found in the Agreement. In such cases, this Agreement shall be
supplemented by a provision which, as far as is legally possible, comes nearest to what both
parties hereto had desired or would have desired according to the sense and purpose of the
Agreement, if they had considered the point when concluding the Agreement.
	 
	15.	 	MERGER
	 
	15.1	 	This Agreement sets forth the entire agreement and understanding between the parties as to
the subject matter hereof and merges all prior discussions, negotiations and agreements
between them whether written or oral, and neither of the parties shall be bound by any
decisions, agreements, covenants, definitions, warranties or representations with respect to
the subject matter hereof, other than as expressly provided herein or as duly set forth on or
subsequent to the date hereof in writing and signed by both parties.





(Remainder of Page Intentionally Left Blank)




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



17









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first
above written.



	 	 	 	 	 	 	 	 	 

	CABOT CORPORATION	 	 	 	ASPEN AEROGELS, INC.
	(Cabot)	 	 	 	(Aspen)
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Ravijit Paintal
	 	 	 	By:
	 	/s/ Carl J. Bilgrien
	 

	 	 
	 	 	 	 	 	 
	Name:

	 	Ravijit Paintal
	 	 	 	Name:
	 	Carl J. Bilgrien
	Title:

	 	Vice President
	 	 	 	Title:
	 	Vice President
	Date:

	 	May 24, 2006
	 	 	 	Date:
	 	May 24, 2006






Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



18









 





EXECUTION COPY




SETTLEMENT AGREEMENT AND

FIRST AMENDMENT TO CROSS LICENSE AGREEMENT




     This Settlement Agreement and First Amendment to Cross License Agreement (hereinafter referred
to as the “Settlement Agreement”) is made and entered into as of this 21st day of September, 2007,
by and among Cabot Corporation, a Delaware corporation whose principal place of business is located
at Two Seaport Lane, Boston, Massachusetts 02210 (“Cabot”), and Aspen Aerogels, Inc., a Delaware
corporation whose principal place of business is located at 30 Forbes Road, Building B,
Northborough, Massachusetts 01532 (“Aspen”).



     WHEREAS, effective April 1, 2006, the Parties made and entered into a written Cross License
Agreement (hereinafter referred to as the “CLA”), pursuant to which Cabot and Aspen resolved
certain actual or potential disputes concerning their respective intellectual property rights
involving the manufacture and use of Aerogels by agreeing to license to one another their related
patents, pending and future patent applications, and patents granted thereon (collectively defined
in Section 1.16 of the CLA, and hereinafter referred to in this Settlement Agreement, as the
“Licensed Intellectual Property”), in consideration of the various payments and other consideration
set forth in the CLA; and



     WHEREAS, on or about December 20, 2006, Cabot delivered to Aspen a Notice of Default
(hereinafter referred to as the “Notice of Default”) alleging, inter alia, that Aspen’s failure to
make the Equity Payment to Cabot called for in Section 4.1(b) of the CLA constituted an Event of
Default under the terms of the CLA (hereinafter referred to as the “Event of Default”), and that,
if Aspen failed to cure the Event of Default within thirty (30) days of delivery of Cabot’s Notice
of Default, Cabot reserved the right to terminate the CLA, in whole or in part, in accordance with
its terms; and



     WHEREAS, on or about February 23, 2007, Cabot delivered to Aspen a Notice of Partial



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



 









 




Termination of Cross License Agreement (hereinafter referred to as the “Notice of Partial
Termination”) alleging, inter alia, that Cabot was terminating any and all licenses that Aspen had
or may have had to the Cabot Issued Patents or the Cabot Patent Applications and Acquired Patents
based upon Aspen’s failure to cure the Event of Default, in accordance with the terms of the CLA;
and




     WHEREAS, on or about January 17, 2007, Aspen commenced an action against Cabot in the Court of
Chancery of the State of Delaware in and for New Castle County captioned Aspen Aerogels, Inc.
v. Cabot Corporation, Civil Action No. 2675-N) (hereinafter referred to as the “Delaware
Action”), asserting various claims concerning the CLA and the subject matter thereof; and



     WHEREAS, on or about January 21, 2007, Aspen filed its First Amended Verified Complaint for
Declaratory and Injunctive Relief in the Delaware Action asserting additional claims concerning the
CLA and the subject matter thereof; and



     WHEREAS, on or about March 26, 2007, Cabot filed its Answer to Aspen’s First Amended Verified
Complaint and Counterclaims asserting various claims concerning the CLA and the subject matter
thereof; and



     WHEREAS, as reflected in the Delaware Action and otherwise, Cabot and Aspen have multiple
actual or potential disagreements and disputes regarding, inter alia, their respective compliance
with the terms of the CLA, the existence and legal effect of the Event of Default, the validity of
the Notice of Default, the validity and enforceability of the Notice of Partial Termination, and
the validity and enforceability of the Licensed Intellectual Property; and



     WHEREAS, since the commencement of the Delaware Action, Cabot and Aspen have been engaged in
discovery concerning their various claims, counterclaims and actual or potential



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



2









 




defenses in that Action including, inter alia, their respective compliance with the terms of
the CLA, the existence and legal effect of the Event of Default, the validity of the Notice of
Default, the validity and enforceability of the Notice of Partial Termination, and the validity and
enforceability of the Licensed Intellectual Property; and




     WHEREAS Cabot and Aspen now desire to settle and resolve completely and forever any and all
actual or threatened disagreements and disputes between themselves arising out of, related to, or
connected in any way with the CLA, the Delaware Action, the Event of Default, the Notice of
Default, the Notice of Partial Termination, or certain of the Licensed Intellectual Property;



     NOW, THEREFORE, in exchange for the mutual promises and covenants contained herein and other
good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the
Parties agree, as of the date set forth above, as follows:



I. AMENDMENTS TO THE CLA




     The Notice of Default and the Notice of Partial Termination are hereby rescinded, ab
initio, and shall be of no force or effect, and the CLA shall be in full force and effect,
subject to the following amendments thereto:



     A. Deletions



     The following sections, subsections, terms and provisions of the CLA are hereby deleted in
their entirety, and shall have no further force or effect:



          (1) Section 1.11 (defining “Event of Default”);




          (2) Section 1.12 (defining “Equity Closing”);




          (3) Section 1.13 (defining “Lead Investor”);




          (4) Section 4.1 (untitled);






Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



3









 








          (5) Section 5.5 (untitled);




          (6) The proviso only of Section 5.6;




          (7) Section 5.8 (untitled);




          (8) The proviso only of the last sentence of Section 5.9;




          (9) Section 6.5 (untitled);




          (10) Section 7.1 (untitled);




          (11) Section 7.2 (untitled);




          (12) Schedule A; and




          (13) Schedule B.





	B.	 	Additions and Replacements





     The following sections, subsections and provisions are hereby inserted and incorporated in the
CLA in the locations noted, or amended as provided, and shall be immediately binding on the
Parties:




     (1) In Section 1.15, the second paragraph shall be amended to state:



     “For purposes of this definition and as used in Section 3.4 below, ‘Period’ shall mean the
term between the Effective Date and the earlier of (a) December 31, 2013, or (b) the date on which
Aspen actually pays, in full, all fees and other amounts due or to become due to Cabot under
Article 4 of this Agreement, infra, regardless of their due date(s), provided, however, that in no
event shall the ‘Period’ be deemed to end prior to April 1, 2011; and ‘Shortened Period’ shall mean
the term between the Effective Date and the date of a Change of Control of a Party.”




     (2) In Article 4 titled “FEES PAYABLE TO CABOT,” the following sections shall be
inserted:


 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




4









 





     “4.1 in consideration of, inter alia, the rescission of the Notice of Default and the Notice
of Partial Termination, the avoidance of any actual or potential claims by Cabot arising from or
related to Aspen’s use of the Cabot Issued Patents prior to the date of the Settlement Agreement
and First Amendment to Cross License Agreement between the Parties (the “Settlement Agreement”),
and the avoidance of further legal fees, expenses or financial exposure associated in any way with
the Event of Default, the Notice of Default, the Notice of Partial Termination, the Licensed
Intellectual Property or the Delaware Action, Aspen agrees to pay Cabot a non-refundable fee of
Thirty-Eight Million Dollars ($38,000,000) in strict conformance with the following schedule:



	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Payment Due Date	 	 	 	Type A Payment	 	Type B Payment	 	Total Payment Due
	 	9/1/2006	*	 	 
	 	$	800,000	 	 	none	 	$	800,000	 
	 	3/1/2007	*	 	 
	 	$	800,000	 	 	none	 	$	800,000	 
	 	9/1/2007	*	 	 
	 	$	800,000	 	 	none	 	$	800,000	 
	 	9/24/2007	 	 	 
	 	$	500,000	 	 	none	 	$	500,000	 
	 	12/1/2007	 	 	 
	 	$	500,000	 	 	none	 	$	500,000	 
	 	3/1/2008	 	 	 
	 	$	1,300,000	 	 	$	100,000	 	 	$	1,400,000	 
	 	6/1/2008	 	 	 
	 	$	500,000	 	 	$	100,000	 	 	$	600,000	 
	 	9/1/2008	 	 	 
	 	$	1,300,000	 	 	$	100,000	 	 	$	1,400,000	 
	 	12/1/2008	 	 	 
	 	$	500,000	 	 	$	100,000	 	 	$	600,000	 
	 	3/1/2009	 	 	 
	 	$	1,300,000	 	 	$	200,000	 	 	$	1,500,000	 
	 	6/1/2009	 	 	 
	 	$	500,000	 	 	$	200,000	 	 	$	700,000	 
	 	9/1/2009	 	 	 
	 	$	1,300,000	 	 	$	200,000	 	 	$	1,500,000	 
	 	12/1/2009	 	 	 
	 	$	500,000	 	 	$	200,000	 	 	$	700,000	 
	 	3/1/2010	 	 	 
	 	$	1,425,000	 	 	$	825,000	 	 	$	2,250,000	 
	 	6/1/2010	 	 	 
	 	$	625,000	 	 	$	825,000	 	 	$	1,450,000	 
	 	9/1/2010	 	 	 
	 	$	1,425,000	 	 	$	825,000	 	 	$	2,250,000	 
	 	12/1/2010	 	 	 
	 	$	625,000	 	 	$	825,000	 	 	$	1,450,000	 
	 	3/1/2011	 	 	 
	 	$	1,425,000	 	 	$	875,000	 	 	$	2,300,000	 
	 	6/1/2011	 	 	 
	 	$	625,000	 	 	$	875,000	 	 	$	1,500,000	 
	 	9/1/2011	 	 	 
	 	$	625,000	 	 	$	875,000	 	 	$	1,500,000	 
	 	12/1/2011	 	 	 
	 	$	625,000	 	 	$	875,000	 	 	$	1,500,000	 
	 	3/1/2012	 	 	 
	 	$	750,000	 	 	$	750,000	 	 	$	1,500,000	 
	 	6/1/2012	 	 	 
	 	$	750,000	 	 	$	750,000	 	 	$	1,500,000	 
	 	9/1/2012	 	 	 
	 	$	750,000	 	 	$	750,000	 	 	$	1,500,000	 
	 	12/1/2012	 	 	 
	 	$	750,000	 	 	$	750,000	 	 	$	1,500,000	 
	 	3/1/2013	 	 	 
	 	$	750,000	 	 	$	750,000	 	 	$	1,500,000	 
	 	6/1/2013	 	 	 
	 	$	750,000	 	 	$	750,000	 	 	$	1,500,000	 





 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




5









 






	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Payment Due Date	 	 	 	Type A Payment	 	Type B Payment	 	Total Payment Due
	 	9/1/2013	 	 	 
	 	$	750,000	 	 	$	750,000	 	 	$	1,500,000	 
	 	12/1/2013	 	 	 
	 	$	750,000	 	 	$	750,000	 	 	$	1,500,000	 
	Totals	 	 
	 	$	24,000,000	 	 	$	14,000,000	 	 	$	38,000,000	 





Aspen shall make each of the foregoing payments to Cabot in United States currency on or
before the scheduled due date, provided, however, that Cabot acknowledges that the three (3)
payments due on or before September 1, 2007 (in the total amount of $2,400,000) already have been
timely paid in full by Aspen.”




     “4.2 In the event of a Change of Control of Aspen, all remaining Type A Payments set forth in
Section 4.1 shall become immediately due and payable in full to Cabot by Aspen irrespective of
their originally scheduled due dates, and Aspen or its successor shall continue to make all
remaining Type B Payments set forth in Section 4.1 in strict conformance with the schedule
contained therein.”



     “4.3 Notwithstanding any other provision of this Agreement, if Aspen fails to make a required
payment to Cabot on or before its scheduled due date and such failure shall continue for a period
of 30 days, or if on more than three (3) occasions Aspen fails to make a required payment to Cabot
within three (3) business days of its scheduled due date, Cabot, in its sole discretion, may
declare some or all remaining Type A Payments and Type B Payments set forth in Section 4.1 to be,
whereupon the specific payments identified by Cabot in its declaration shall become, immediately
due and payable in full to Cabot by Aspen irrespective of their originally scheduled due dates. In
addition, any required payment not made within three (3) business days after it becomes due,
whether as originally scheduled or as a result of acceleration, shall bear interest from the fourth
(4th) business day after the date due until paid at the rate of 14% per annum (computed
on the basis of a 360-day year consisting of twelve 30-day months),




 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




6









 




compounding quarterly on the first day of each March, June, September and December. Without
limiting Aspen’s other obligations under this Agreement, Aspen will also pay Cabot on demand such
further amounts as shall be sufficient to cover all costs and expenses incurred by Cabot in any
enforcement or collection of Aspen’s payment obligations under this Article 4, including, without
limitation, reasonable attorneys’ fees, expenses and disbursements.”




     “4.4 Aspen shall make all payments to Cabot under this Agreement by wire transfer to the
following bank account, or by wire transfer to such other bank account as Cabot may designate from
time-to-time in writing:



	 	 	 	 	 

	 

	 	BANK NAME:
	 	[***]
	 
	 

	 	ADDRESS:
	 	[***]
	 
	 	 	 	 
	 

	 	ABA NUMBER:
	 	[***] (for domestic wires)
	 
	 

	 	SWIFT CODE:
	 	[***] (for foreign wires)
	 
	 

	 	ACCT. NAME:
	 	Cabot Corporation
	 

	 	 	 	2 Seaport Lane
	 

	 	 	 	Boston, MA 02210
	 
	 

	 	ACCT. NO.:
	 	[***]”






          (3) In Section 1.6 (defining the term “Change of Control”), the following clause shall be
inserted at the end of subsection (a) following the word “Party”;





“, excluding any acquisition by one or more of the “Major Investors” (as such term is
defined in the Settlement Agreement), or their Affiliates that have signed and delivered
to Cabot Joinder Agreements, of 50% or more of the total voting power of Aspen.”



          (4) Article 7 titled “TERM AND TERMINATION” is amended by inserting in place of the deleted
Sections 7.1 and 7.2 the following:





 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




7









 









“This Agreement shall become effective on the Effective Date and shall continue
until the expiration of the last to expire of the Issued Patents or Patent
Applications and Acquired Patents licensed hereunder, at which time it shall expire.
If (a) Aspen shall fail to make any payment to Cabot when due in accordance with
Section 4.1 and Aspen shall not make such payment (with interest if applicable under
Section 4.3) within thirty (30) days after Cabot has given Aspen written notice of
such failure, or (b) in accordance with Section 4.3 Cabot shall accelerate the due
dates for any payments under Section 4.1 and Aspen shall thereafter fail to pay to
Cabot within thirty (30) days after such acceleration all amounts then due to Cabot
under Article 4 (i.e. the overdue payments giving rise to such acceleration, the
payments accelerated, and any interest due thereon), then in either such
case, Cabot may, at its option, at any time or times thereafter while any
amounts then due under Article 4 remain unpaid, terminate all licenses to Aspen
hereunder in their entirety, or may partially terminate the licenses to Aspen
hereunder (a) by restricting the licenses to Aspen to specific Cabot Issued Patents,
Patent Applications and Acquired Patents, or specific claims thereunder, (b) by
reducing the Aspen Field of Use, and (c) in any other manner that narrows the scope
of the licenses to Aspen. The notice of termination issued by Cabot shall either
state that it is a termination of all licenses to Aspen hereunder, or shall specify
the scope of the license remaining to Aspen hereunder. Any such termination by
Cabot, whether of all licenses granted to Aspen or a partial termination as
described above, shall not affect either the licenses granted by Aspen to Cabot
hereunder, which shall continue in full force and effect for the remainder of the
term of this Agreement, or Cabot’s right to receive payment in accordance with
Article 4 of all amounts provided for therein. For the avoidance of doubt, if Cabot
exercises its right to partially terminate the licenses granted to Aspen hereunder,
Cabot shall continue to have the right at anytime thereafter while amounts then due
to Cabot under Article 4 remain unpaid, by supplemental notice of termination to
terminate all licenses granted to Aspen hereunder, or to further narrow the scope of
the licenses remaining to Aspen hereunder.”




“Notwithstanding the foregoing if Cabot terminates the licenses to Aspen hereunder,
in their entirety or partially, and if Aspen notifies Cabot within ten (10) days
following any such termination that it is engaged in a process to sell Aspen or its
assets, and if within ninety (90) days following any such termination such sale
shall actually be completed and Cabot shall receive the full amount of all unpaid
Type A and Type B payments (whether or not then due and payable) described in
Section 4.1, and all interest accrued under Section 4.3, then any such default by
Aspen shall be deemed cured, ab initio, and all licenses to Aspen hereunder shall be
retroactively reinstated and shall remain in full force and effect for the remainder
of the term of this Agreement.”



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




8









 






(5) In each of Section 2(a)(i), Section 2(b)(i), in the second sentence of Section 3.1 and
in the second sentence of Section 3.2, the following phrase shall be inserted after the word
“customers”:



          “and ultimate end users”




     (6) Section 2(e) is amended in its entirety to read as follows:




     “(e) Each of the Parties agrees not to sell, transfer, pledge or mortgage its
respective Issued Patents or its Patent Applications and Acquired Patents except by an
instrument that expressly recognizes that such sale, transfer, pledge or mortgage is subject
to the licenses granted hereunder.”



     (7) Section 10.2 is amended in its entirety to read as follows:




     “10.2 Other than in a case involving a failure to make a payment under Article 4, the
Parties shall endeavor to settle any dispute arising in connection with the interpretation
or performance of, or otherwise in connection with this Agreement, through mutual
consultation and negotiation. If no settlement can be reached through consultations of
senior corporate management of the Parties within thirty (30) days of one Party delivering a
written notice of dispute to the other Party, then such matter may be finally settled by a
court of competent jurisdiction.”


C. No Other Changes




     Other than as expressly amended or modified in this Section I, all of the provisions of the
CLA shall remain in full force and effect, and are hereby ratified and affirmed by the Parties.



II. SUBORDINATION OF PAYMENTS TO ASPEN’S INVESTORS




     A. Definitions


 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




9









 





     As used in this Settlement Agreement, the following terms shall have the meanings set forth
below:



          (1) “Aspen Equity Investors” shall mean all persons who are now or hereafter become
equity holders in Aspen, including without limitation the Major Investors, all Affiliates of such
persons, and any person who executes a Joinder Agreement in accordance herewith. An Unaffiliated
Institutional Lender shall not be deemed to be an Aspen Equity Investor on account of any Equity
Kicker.




          (2) “Joinder Agreement” shall mean an agreement in the form appended hereto as
Exhibit A.




          (3) “Unaffiliated Institutional Lender” shall mean Massachusetts Development Financing
Authority, Heller Financial Leasing, Inc. and Atel Ventures, Inc. and any other institutional
lender that is not a Major Investor or an Affiliate of a Major Investor.




          (4) “Equity Kicker” shall mean any warrants or conversion rights given by Aspen as
partial consideration for a loan from an Unaffiliated Institutional Lender, and any equity
interests issued upon the exercise of such warrants or conversion rights.




          (5) “Major Investors” shall mean Lehman Brothers Venture Capital Partners II, L.P.,
Lehman Brothers P.A. LLC, Lehman Brothers Partnership Account 2000/2001, L.P., Lehman Brothers
Offshore Partnership Account 2000/2001, L.P., Lehman Brothers Venture Partners 2003-C, L.P., Lehman
Brothers Venture Partners 2003-P, L.P., Lehman Brothers Venture Capital 2003 Partnership, Reservoir
Capital Partners, L.P., Reservoir Capital Master Fund, L.P., RockPort Capital Partners, L.P., RP
Co-Investment Fund I L.P., RockPort S II, LLC and RockPort Capital Partners II, L.P.





 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




10









 








          (6) “Cabot Senior Obligations” shall mean the Type A Payments required to be paid to
Cabot pursuant to the CLA, as amended, including, without limitation, Type A Payments not yet due
and payable, and the Type B Payments required to be paid to Cabot pursuant to the CLA, as amended,
that are due and payable.




          (7) “Junior Interests” shall mean all current or future debt or equity of Aspen held
by an Aspen Equity Investor, and all Equity Kickers whether or not held by an Aspen Equity
Investor; provided that rights to the following amounts in respect of 14% Senior Secured Notes
shall not be considered Junior Interests, whether or not held by an Aspen Equity Investor: (a)
principal (including capitalized interest) outstanding as of August 1, 2007, (b) increases in
principal resulting from the capitalization of interest accrued after August 1, 2007 at the rate of
l4% per annum or lower, or (c) interest accrued at the rate of 14% per annum or lower on the
principal permitted by the foregoing clauses (a) and (b).




          (8) “Junior Payments” shall mean all payments on account of any Junior Interest,
whether principal, interest, dividends, redemption payments or otherwise, and whether paid in cash
or other property, except for a payment consisting solely of a Junior Interest; provided, however,
that the following payments on account of 14% Senior Secured Notes shall not be considered Junior
Payments: (a) any payment of principal (including capitalized interest) outstanding as of August 1,
2007, or increases in principal thereafter resulting from the capitalization of interest accrued at
the rate of 14% per annum or lower, or (b) any payment of interest accrued at the rate of 14% per
annum or lower on the principal permitted by the foregoing clause (a).”




          (9) “14% Senior Secured Notes” shall mean the 14% Senior Secured Notes issued by Aspen
due 2010 outstanding to the parties and in the amounts set forth on Schedule I



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




11









 




hereto, which shows the original principal amounts of such notes, the capitalized interest,
and the accrued interest thereunder as of August 1, 2007.




     B. Subordination of Junior Interests



          (1) Until all Cabot Senior Obligations have been paid, Aspen shall not make any Junior
Payments, and no holder of Junior Interests shall accept or retain any Junior Payment, provided,
however, that nothing herein shall prevent any holder of Junior Interests from converting such
Junior Interests into, or exchanging such Junior Interests for, other Junior Interests; and
provided, further that Aspen may pay up to a maximum of $5,000,000 to the holders of outstanding
Bridge Notes who are listed in Schedule II attached hereto and who are not Major Investors
if such payment is made out of new funds (i.e., cash, not conversion of bridge loans or other debt)
paid into Aspen, not more than 30 days prior to the repayment of such Bridge Notes, for Junior
Interests issued to Aspen Equity Investors who have executed and delivered to Cabot Joinder
Agreements.




          (2) In the event of any insolvency, bankruptcy, receivership, liquidation, reorganization or
other similar proceedings, relative Aspen or to its property, or in the event of any proceedings
for voluntary liquidation, dissolution or other winding up of Aspen, whether or not involving
insolvency or bankruptcy, Cabot shall be entitled in any such proceedings to receive payment in
full of all Cabot Senior Obligations before the holders of Junior Interests are entitled in such
proceedings to receive any Junior Payment, and to that end any Junior Payment to which the holders
of Junior Interests would be entitled but for the provisions hereof shall be delivered to Cabot to
the extent necessary to make payment in full of all Cabot Senior Obligations, after giving effect
to any concurrent payment or distribution to Cabot in respect thereof; provided, however, that the
holders of the Junior Interests shall be entitled to receive and



 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




12









 




retain Junior Payments consisting of reorganization securities, including, without limitation,
any equity or debt security issued by Aspen or its bankruptcy or receivership estate in or in
connection with any insolvency proceeding, but all such reorganization securities received as a
Junior Payment shall be deemed Junior Interests for the purposes hereof.




          (3) If, notwithstanding its agreement hereunder, Aspen makes any Junior Payment, except as
permitted in Paragraph II(B)(1), above, before all of the Cabot Senior Obligations have been paid
in full, such payment shall be held in trust for the benefit of, and shall be paid over to Cabot
promptly on demand for application to the payment of all Cabot Senior Obligations until the same
shall have been paid in full, after giving effect to any concurrent payment or distribution to the
holders of such Cabot Senior Obligations.




          (4) No Aspen Equity Investor that has signed a Joinder Agreement shall sell, assign or
otherwise transfer, in whole or in part, any Junior Interests or any interest therein, to any other
person or entity (a “Transferee”) unless and until such Transferee signs and delivers to Aspen and
to Cabot a Joinder Agreement.




     C. Aspen’s Obligation to Assure Investor Agreement and Compliance



          (1) Aspen represents that Schedule II attached hereto includes an accurate list, as of
the date of this Settlement Agreement, showing the identity of each Aspen Equity Investor holding
Junior Interests consisting of debt and the principal amount of each type of debt held by such
Aspen Equity Investor.




          (2) Contemporaneous with the execution of this Settlement Agreement, Aspen shall deliver to
Cabot one or more Joinder Agreements executed by each Major Investor and by each Affiliate of a
Major Investor holding Junior Interests consisting of debt or holding 14% Senior Secured Notes.





 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




13









 








          (3) Aspen shall not issue any additional Junior Interests after the date of this Settlement
Agreement unless and until either (i) the terms of such Junior Interests expressly incorporate the
provisions or this Article II for the benefit of Cabot, or (ii) prior to or contemporaneous
therewith, the party to whom such Junior Interests are to be issued executes and delivers to Cabot
a Joinder Agreement.




          (4) If any Aspen Equity Investor who does not execute a Joinder Agreement has, as of the date
of this Settlement Agreement, a contractual right to receive now or in the future a Junior Payment,
nothing herein shall be construed as requiring Aspen to breach its contractual obligation to such
Aspen Equity Investor, provided, however, that in such case, unless such Junior Payment is
permitted under Paragraph II(B)(1), above, Aspen shall pay all Cabot Senior Obligations prior to,
or concurrent with, making the contractually required Junior Payment.




III. RELEASES AND COVENANTS




     A. By Aspen



          (1) Contemporaneous with the execution of this Settlement Agreement, Aspen, by its authorized
representative, shall execute and deliver to Cabot a Release in the form attached hereto as
Exhibit B.




          (2) Aspen covenants and agrees not to challenge or cause to be challenged, directly or
indirectly, the validity or enforceability of (a) any of the Cabot Issued Patents, (b) any patent
that actually is issued to or acquired by Cabot on or before July 1, 2007 on account of one or more
of the licensed Patent Applications and Acquired Patents, or (c) any foreign counterparts of the
patents in (b) regardless of when they are issued, in any court or tribunal, before any
administrative body (including, without limitation, the United States Patent and Trademark





 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




14









 







Office), or in any other public or private forum or proceeding. Aspen hereby waives any and
all such invalidity and unenforceability claims and defenses in any future litigation, arbitration
or other public or private proceeding. This covenant and waiver shall survive the termination of
this Settlement Agreement and permanently shall bind Aspen, its successors, assignees, and those
who act for or in concert with any of them (including, without limitation, any assignee of any of
the Aspen Issued Patents).




     B. By Cabot



          (1) Contemporaneous with the execution of this Settlement Agreement, Cabot, by its authorized
representative, shall execute and deliver to Aspen a Release in the form attached hereto as
Exhibit C.




          (2) Cabot covenants and agrees not to challenge or cause to be challenged, directly or
indirectly, the validity or enforceability of (a) any of the Aspen Issued Patents, (b) any patent
that actually is issued to or acquired by Aspen on or before July 1, 2007 on account of one or more
of the licensed Patent Applications and Acquired Patents, or (c) any foreign counterparts of the
patents in (b) regardless of when they are issued, in any court or tribunal, before any
administrative body (including, without limitation, the United States Patent and Trademark Office),
or in any other public or private forum or proceeding. Cabot hereby waives any and all such
invalidity and unenforceability claims and defenses in any future litigation, arbitration or other
public or private proceeding. This covenant and waiver shall survive the termination of this
Settlement Agreement and permanently shall bind Cabot, its successors, assignees, and those who act
for or in concert with any of them (including, without limitation, any assignee of any of the Cabot
Issued Patents).





 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




15









 








          (3) Cabot irrevocably and permanently waives for itself and its successors and assigns any
right it had or may have at any time in the future (to the extent any) to, directly or indirectly,
assert that the 14% Senior Secured Notes (and the payments related thereto that are not considered
Junior Payments as provided in Article III.A((8) of the CLA, as amended above) are subject to
re-characterization, subordination (whether equitable, contractual or otherwise) or any other
challenge by Cabot or any person or entity under any applicable law, including, without limitation,
Title 11 of the United States Code.




IV. DISMISSAL OF THE DELAWARE ACTION; RETURN OF SERIES D TENDER




          A. Contemporaneous with the execution of this Settlement Agreement, including all exhibits and
schedules hereto, counsel of record for Cabot and Aspen in the Delaware Action shall sign and file
a Stipulation of Dismissal of the Delaware Action in the form attached hereto as Exhibit D.




          B. Each of the Parties understands and agrees that it alone shall bear the costs, expenses,
and attorney’s fees that it has incurred arising from or related to the Delaware Action.




          C. Contemporaneous with the execution of this Settlement Agreement, Cabot shall return to
Aspen all of the original copies of the documents comprising the Series D Preferred Stock tender
made by Aspen on January 19, 2007, including without limitation, the stock certificate evidencing
5,429,066 shares of Series D Preferred Stock.




          D. Cabot shall, within five (5) business days following the execution of this Settlement
Agreement, return to Aspen or destroy (i) all materials relating to Aspen and its business
delivered to Cabot or its representatives in November and December 2006 and January 2007 in
connection with negotiations over the exercise of Cabot’s “Equity Investment Credit” (as



 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




16









 




such term was defined in the CLA) that Cabot and its representatives identify based on a
reasonable search of their files; provided, however, that neither Cabot nor its representatives
shall be required to search their e-mail files, deleted e-mail files or back-up e-mail files for
such materials, and (ii) all discovery materials (e.g., documents, papers, and records, whether in
paper or electronic format) furnished to it by Aspen in connection with the Delaware Action,
including without limitation all computer readable discs received from Kroll, and all copies
thereof made by Cabot or its representatives. Promptly thereafter Cabot shall certify in writing
that all such records have been returned to Aspen or destroyed in compliance with this paragraph.
If, after such five (5) day period, Cabot or its representatives should come upon any of the
materials described in this paragraph in hard copy or electronic format of any kind, such materials
will be kept confidential and will be promptly destroyed.




          E. Aspen shall, within five (5) business days following the execution of this Settlement
Agreement, return to Cabot or destroy all discovery materials (e.g., documents, papers, and records,
whether in paper or electronic format) furnished to it by Cabot in connection with the Delaware
Action, and any copies thereof made by Aspen, its representatives or Affiliates. Promptly
thereafter Aspen shall certify in writing that all such records have been returned to Cabot or
destroyed in compliance with this paragraph. If, after such 5 day period, Aspen or its
representatives should come upon any of the materials described in this paragraph in hard copy or
electronic format of any kind, such materials will be kept confidential and will be promptly
destroyed.




V. REPRESENTATIONS AND WARRANTIES 




     A. By Aspen


 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




17









 





          (1) Aspen represents and warrants that it is not a party to, subject to or bound by any
agreement or any judgment, order, writ, prohibition, injunction or decree of any court or other
governmental body which would prevent the execution or delivery of this Settlement Agreement or the
performance of its obligations hereunder.




          (2) Aspen represents and warrants that this Settlement Agreement, including all exhibits and
schedules hereto, and the CLA, as amended, constitute valid and legally binding obligations of
Aspen, enforceable against it in accordance with their respective terms.




          (3) Aspen represents and warrants that Schedule III is a complete and accurate summary
of all equity interests issued by Aspen on or before the date of this Agreement, showing for each
class of interests (a) a description of the interest, (b) the total number issued, and (c) the
aggregate cash consideration received by Aspen therefor. Since its incorporation, Aspen has not
redeemed any of its equity interests.




          (4) Aspen represents and warrants that Schedules I and II are a complete and accurate
summary as of the date hereof of all indebtedness of Aspen for money borrowed, or evidenced by a
promissory note, showing for each type of indebtedness (a) the total principal and due date, (b)
the interest rate or rates, (c) the principal amount held by Major Investors or their Affiliates,
and (d) the principal amount held by other Aspen Equity Investors.




     B. By Cabot



          (1) Cabot represents and warrants that it is not a party to, subject to or bound by any
agreement or any judgment, order, writ, prohibition, injunction or decree of any court, or other
governmental body which would prevent the execution or delivery of this Settlement Agreement or the
performance of its obligations hereunder.






Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



18









 








          (2) Cabot represents and warrants that this Settlement Agreement, including all exhibits and
schedules hereto, and the CLA, as amended, constitute valid and legally binding obligations of
Cabot, enforceable against it in accordance with their respective terms.




     C. By Both Parties



          (1) Both Parties agree that they will act in good faith in carrying out the obligations and
transactions contemplated in this Settlement Agreement.




          (2) Both Parties agree that nothing in this Settlement Agreement is intended to be, or shall
be construed as, an admission of any breach, liability or wrongdoing by any Party.




     D. Remedy for Certain Misrepresentations



          Aspen recognizes and acknowledges that Cabot is relying on the representations and warranties
contained in Paragraphs V(A)(3) and V(A)(4), above, in entering into this Settlement Agreement; and
Aspen agrees that if such any representations and warranties shall prove to have been materially
false when made, without limiting any other legal or equitable remedies that Cabot may have, Cabot
shall have the right to terminate, in whole or in part, the licenses granted by it to Aspen under
the CLA, in the manner described in Article 7 of the CLA, as amended.




VI. MISCELLANEOUS TERMS




     A. This Settlement Agreement shall be construed and enforced in accordance with the laws of
the Commonwealth of Massachusetts, without reference to its conflict of laws principles that might
direct or refer determination of any such matter to the laws of any other jurisdiction.


 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




19









 





     B. All disputes arising out of the interpretation, performance or termination of, or otherwise
in connection with, this Settlement Agreement shall be submitted exclusively to the Court of
Chancery of the State of Delaware in and for New Castle County for resolution.



     C. The failure of a party hereto at any time to exercise any of its rights or options under
this Settlement Agreement shall not be construed to be a waiver of such rights or options, or
prevent such party from subsequently asserting or exercising such rights or options.



     D. Should any of the terms of this Settlement Agreement be or become fully or partly invalid,
the legal validity of the Settlement Agreement shall not be affected thereby. In such cases, this
Settlement Agreement shall be supplemented by a provision which, as far as is legally possible,
comes nearest to what both parties hereto had desired or would have desired according to the sense
and purpose of the Settlement Agreement, if they had considered the point when concluding the
Settlement Agreement.



     E. This Settlement Agreement and the CLA, as amended hereby, are intended by the Parties to be
the final expression of their agreement and a complete and exclusive statement of all of its terms.
Taken together, this Settlement Agreement and the CLA, including any and all recitals therein and
exhibits thereto, constitute the entire and only agreement and understanding between the Parties,
and supersede any and all prior discussions, negotiations and agreements, whether oral or in
writing, between the Parties. The terms of this Settlement Agreement shall not be modified or
amended in any way except as set forth in a written agreement signed by corporate officers of both
Parties.



     F. Capitalized terms used in this Settlement Agreement which are defined in the CLA and are
not otherwise defined herein shall have the meanings attributed to them in the CLA.


 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




20









 





     G. This Settlement Agreement may be executed in any number of counterparts, each of which
shall he deemed to be an original but all of which together shall constitute one and the same
instrument.



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



21









 





     WHEREFORE, Aspen and Cabot state that they have read this Settlement Agreement, including all
exhibits and schedules hereto, have consulted with their counsel regarding their contents, and
fully understand and accept the terms thereof in their entirety and without reservation as of the
date first above written.



	 	 	 	 	 	 	 	 	 

	CABOT CORPORATION	 	 	 	ASPEN AEROGELS, INC.
	 
	 	 	 	 	 	 	 	 
	By:

	 	/s/ Ravijit Paintal
	 	 	 	By:
	 	/s/ Donald R. Young
	 

	 	 
	 	 	 	 	 	 
	 

	 	Ravijit Paintal	 	 	 	 	 	 
	Title:

	 	Vice President
	 	 	 	Title:
	 	President & CEO
	 

	 	 
	 	 	 	 	 	 





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



22









 





Exhibit A




ASPEN AEROGELS, INC.

JOINDER AGREEMENT




     Each of the undersigned has received copies of the Cross License Agreement, dated as of April
1, 2006, between Cabot Corporation (“Cabot’) and Aspen Aerogels, Inc. (“Aspen”) (the “CLA”), and
the Settlement Agreement and First Amendment to Cross License Agreement, dated as of September 21,
2007, between Cabot and Aspen (the “Settlement Agreement”).



     Each of the undersigned hereby agrees to be bound by terms of Section II (entitled
“Subordination of Payments to Aspen’s Investors”) of the Settlement Agreement with all of the
obligations specified therein.



     Each of the undersigned further agrees that this Joinder Agreement shall be effective and
irrevocable upon the delivery to Cabot of a copy (whether original, facsimile, electronic or other)
of this Joinder Agreement, signed by a representative of the undersigned, without any notice of
acceptance thereof by or from Cabot.



     Executed as a sealed instrument under Massachusetts law as of the ___ day of
__________________, 20_.



YOU MAY USE ONE JOINDER

AGREEMENT FOR EACH MAJOR

INVESTOR AND ITS AFFILIATES




                                                            

Typed or Printed Name(s)




By:




                                                            

Name:




Title:




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



23









 





EXHIBIT B




RELEASE




     In consideration of payment of the sum of One Dollar ($1.00), together with other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Aspen
Aerogels, Inc., on behalf of itself and each of its subsidiaries, divisions, affiliates, corporate
parents, joint ventures, partnerships, limited partnerships, predecessors, successors and assigns
and each director, officer, general partner, limited partner, employee, servant and agent thereof
(hereinafter collectively referred to as the “RELEASORS”), hereby remise, release and forever
discharge Cabot Corporation and each of its subsidiaries, divisions, affiliates, joint ventures,
partnerships, limited partnerships, and each director, officer, general partner, limited partner,
stockholder, holder of indebtedness, employee, servant, agent and attorney thereof (hereinafter
collectively referred to as the “RELEASEES”), of and from all debts, demands, causes of action,
suits, accounts, covenants, contracts, agreements, damages, and any and all claims, defenses,
demands, and liabilities whatsoever of every name, and, nature both in law or in equity, which the
RELEASORS now have or ever had against the RELEASEES, from the beginning of time to the date of
this Release, arising out of, related to, or connected with the Cross License Agreement between
Aspen Aerogels, Inc. and Cabot Corporation, dated as of April 1, 2006 (hereinafter referred to as
the “CLA”), or the Event of Default, Notice of Default, Notice of Partial Termination or Licensed
Intellectual Property as they are defined in the Settlement Agreement and First Amendment to Cross
License Agreement between Aspen Aerogels, Inc, and Cabot Corporation, dated as of September 21,
2007 (hereinafter referred to as the “Settlement Agreement”), including, without limitation, all
claims, counterclaims and defenses asserted, or that could have been asserted, by the RELEASORS in,
or in connection with, the litigation



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



Page 1 of 3









 




captioned Aspen Aerogels, Inc. v. Cabot Corporation, Civil Action No 2675-N, pending
in the Court of Chancery of the State of Delaware in and for New Castle County, and all claims,
counterclaims and defenses asserted, that could have been asserted, or that could be asserted in
the future by the RELEASORS arising out of, related to, or connected with the validity or
enforceability of (a) any of the Cabot Issued Patents, (b) any patent that actually is issued to or
acquired by Cabot on or before July 1, 2007 on account of one or more of the licensed Patent
Applications and Acquired Patents, or (c) any foreign counterparts of the patents referenced in
(b), supra, regardless of when they are issued.




     By executing this Release, the RELEASORS agree and acknowledge that their representatives have
read this document with care and with the advice of counsel, and that no representation of fact or
opinion has been made to the RELEASORS by anyone which has induced the RELEASORS in any manner to
execute this Release.



     Capitalized terms used in this Release but not otherwise defined shall have the meanings
attributed to them in the CLA and/or the Settlement Agreement.



     Nothing herein is intended to, or shall be construed to, release or discharge any obligations
for future performance, or restrictions imposed upon any rights granted, under the CLA, as amended,
or the Settlement Agreement.



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.





Page 2 of 3









 





     In WITNESS HEREOF, the RELEASERS have caused this release to be executed by their duly
authorized representatives this ___ day of September, 2007.



	 	 	 	 	 
	 	ASPEN AEROGELS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WITNESS

 	 
	 	
 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.



Page 3 of 3









 





Exhibit C




RELEASE




     For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Cabot Corporation, on behalf of itself and each of its subsidiaries, divisions,
affiliates, corporate parents, joint ventures, partnerships, limited partnerships, predecessors,
successors and assigns and each director, officer, general partner, limited partner, employee,
servant and agent thereof (hereinafter collectively referred to as the “RELEASORS”), hereby remise,
release and forever discharge Aspen Aerogels, Inc., and each of its subsidiaries, divisions,
affiliates, joint ventures, partnerships, limited partnerships, and each director, officer, general
partner, limited partner, stockholder, holder of indebtedness, employee, servant, agent and
attorney thereof (hereinafter collectively, referred to as the “RELEASEES”), of and from all debts,
demands, actions, causes of action, suits, accounts, covenants, contracts, agreements, damages, and
any and all claims, defenses, demands, and liabilities whatsoever of every name, and nature, both
in law or in equity, which the RELEASORS now have or ever had against the RELEASEES, from the
beginning of time to the date of this Release, arising out of, related to, or connected with the
Cross License Agreement between Aspen Aerogels, Inc. and Cabot Corporation, dated as of April 1,
2006 (hereinafter referred to as the “CLA”), or the Event of Default, Notice of Default, Notice of
Partial Termination or Licensed Intellectual Property as they are defined in the Settlement
Agreement and First Amendment to Cross License Agreement between Aspen Aerogels, Inc. and Cabot
Corporation, dated as of September 21, 2007 (hereinafter referred to as the “Settlement
Agreement”), including, without limitation, all claims, counterclaims and defenses asserted, or
that could have been asserted, by the RELEASORS in, or in connection with, the litigation captioned
Aspen Aerogels, Inc. v. Cabot Corporation, Civil


 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




Page 1 of 3









 




Action No. 2675-N, pending in the Court of Chancery of the State of Delaware in and for New
Castle County, and all claims, counterclaims and defenses asserted, that could have been asserted,
or that could be asserted in the future by the RELEASORS arising out of, related to, or connected
with the validity or enforceability of (a) any the Aspen Issued Patents, (b) any patent that
actually is issued to or acquired by Aspen on or before July 1, 2007 on account of one or more of
the licensed Patent Applications and Acquired Patents, or (c) any foreign counterparts of the
patents referenced in (b), supra, regardless of when they are issued.




     By executing this Release, the RELEASORS agree and acknowledge that their representatives have
read this document with care and with the advice of counsel, and that no representation of fact or
opinion has been made to the RELEASORS by anyone which has induced the RELEASORS in any manner to
execute this Release.



     Capitalized terms used in this Release but not otherwise defined shall have the meanings
attributed to them in the CLA and/or the Settlement Agreement.



     Nothing herein is intended to, or shall be construed to, release or discharge any obligations
for future performance, or restrictions imposed upon any rights granted, under the CLA, as amended,
or the Settlement Agreement.


 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




Page 2 of 3









 





     In WITNESS HEREOF, the RELEASERS have caused this release to be executed their duly authorized
representatives this ____ day of September, 2007.



	 	 	 	 	 
	 	CABOT CORPORATION

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	WITNESS

 	 
	 	
 	 
	 	Name:  	 	 
	 	Title:  	 	 
	 



 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




Page 3 of 3









 





Exhibit D




IN THE COURT OF CHANCERY IN THE STATE OF DELAWARE


IN AND FOR NEW CASTLE COUNTY




	 	 	 	 	 	 	 

	ASPEN AEROGELS, INC., a Delaware corporation,

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	                              Plaintiff,

	 	 	)	 	 	C.A. No. 2675-VCL
	 

	 	 	)	 	 	 
	          v.

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	CABOT CORPORATION, a Delaware corporation,

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	 

	 	 	)	 	 	 
	                               Defendant.

	 	 	)	 	 	 






STIPULATION OF DISMISSAL




     Plaintiff Aspen Aerogels, Inc. and defendant Cabot Corporation, constituting all of the
parties who have appeared in this proceeding, hereby stipulate, pursuant to Chancery Court Rule
41(a)(1)(ii), that this action, including any and all claims, counterclaims and defenses asserted
herein, is hereby dismissed with prejudice and without costs or attorney’s fees to any party.



     STIPULATED AND AGREED to by:



	 	 	 
	John L. Reed (#3023)

	 	William J. Wade (#704)
	Paul D. Brown (#3903)

	 	Jennifer J. Veet (#4792)
	Joseph B. Cicero (#4388)

	 	Richards, Layton & Finger
	Edwards Angell Palmer & Dodge LLP

	 	One Rodney Square
	919 North Market Street, 15th Floor

	 	P.O. Box 551
	Wilmington, Delaware 19801

	 	Wilmington, DE 19899
	Telephone: (302) 777-7770

	 	Telephone: (302) 651-7700
	Facsimile: (302) 777-4263

	 	Facsimile: (302) 651-7701
	 
	 	 
	Attorneys for Plaintiff Aspen Aerogels, Inc.

	 	Attorneys for Defendant Cabot Corporation





Date: July ____, 2007








 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




 









 








RELEASE




     For good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Cabot Corporation, on behalf of itself and each of its subsidiaries, divisions,
affiliates, corporate parents, joint ventures, partnerships, limited partnerships, predecessors,
successors and assigns and each director, officer, general partner, limited partner, employee,
servant and agent thereof (hereinafter collectively referred to as the “RELEASORS”), hereby remise,
release and forever discharge Aspen Aerogels, Inc., and each of its subsidiaries, divisions,
affiliates, joint ventures, partnerships, limited partnerships, and each director, officer, general
partner, limited partner, stockholder, holder of indebtedness, employee, servant, agent and
attorney thereof (hereinafter collectively referred to as the “RELEASEES”), of and from all debts,
demands, actions, causes of action, suits, accounts, covenants, contracts, agreements, damages, and
any and all claims, defenses, demands, and liabilities whatsoever of every name, and nature, both
in law or in equity, which the RELEASORS now have or ever had against the RELEASEES, from the
beginning of time to the date of this Release, arising out of, related to, or connected with the
Cross License Agreement between Aspen Aerogels, Inc. and Cabot Corporation, dated as of April 1,
2006 (hereinafter referred to as the “CLA”), or the Event of Default, Notice of Default, Notice of
Partial Termination or Licensed Intellectual Property as they are defined in the Settlement
Agreement and First Amendment to Cross License Agreement between Aspen Aerogels, Inc. and Cabot
Corporation, dated as of September 21, 2007 (hereinafter referred to as the “Settlement
Agreement”), including, without limitation, all claims, counterclaims and defenses asserted, or
that could have been asserted, by the RELEASORS in, or in connection with, the litigation captioned
Aspen Aerogels, Inc. v. Cabot Corporation, Civil Action No. 2675-N, pending in the Court of
Chancery of the State of Delaware in and for New


 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




Page 1 of 3









 




Castle County, and all claims, counterclaims and defenses asserted, that could have been
asserted, or that could be asserted in the future by the RELEASORS arising out of, related to, or
connected with the validity or enforceability of (a) any the Aspen Issued Patents, (b) any patent
that actually is issued to or acquired by Aspen on or before July 1, 2007 on account of one or more
of the licensed Patent Applications and Acquired Patents, or (c) any foreign counterparts of the
patents referenced in (b), supra, regardless of when they are issued.




     By executing this Release, the RELEASORS agree and acknowledge that their representatives have
read this document with care and with the advice of counsel, and that no representation of fact or
opinion has been made to the RELEASORS by anyone which has induced the RELEASORS in any manner to
execute this Release.



     Capitalized terms used in this Release but not otherwise defined shall have the meanings
attributed to them in the CLA and/or the Settlement Agreement.



     Nothing herein is intended to, or shall be construed to, release or discharge any obligations
for future performance, or restrictions imposed upon any rights granted, under the CLA, as amended,
or the Settlement Agreement.



     In WITNESS HEREOF, the RELEASERS have caused this release to be executed their duly authorized
representatives this 21st day of September, 2007.


 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




Page 2 of 3









 





	 	 	 	 	 
	 	CABOT CORPORATION

 	 
	 	By  	/s/ Ravijit Paintal
 	 
	 	 	Name:  	Ravijit Paintal 	 
	 	 	Title:  	Vice President 	 
	 
	 	WITNESS

 	 
	 	/s/ Richard Karpeles
 	 
	 	Name:  	Richard Karpeles 	 
	 	Title:  	Product Line Director FMO 	 
	 



 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




Page 3 of 3









 








RELEASE





     In consideration of payment of the sum of One Dollar ($1.00), together with other good and
valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Aspen
Aerogels, Inc., on behalf of itself and each of its subsidiaries, divisions, affiliates, corporate
parents, joint ventures, partnerships, limited partnerships, predecessors, successors and assigns
and each director, officer, general partner, limited partner, employee, servant and agent thereof
(hereinafter collectively referred to as the “RELEASORS”), hereby remise, release and forever
discharge Cabot Corporation and each of its subsidiaries, divisions, affiliates, joint ventures,
partnerships, limited partnerships, and each director, officer, general partner, limited partner,
stockholder, holder of indebtedness, employee, servant, agent and attorney thereof (hereinafter
collectively referred to as the “RELEASEES”), of and from all debts, demands, actions, causes of
action, suits, accounts, covenants, contracts, agreements, damages, and any and all claims,
defenses, demands, and liabilities whatsoever of every name, and nature, both in law or in equity,
which the RELEASORS now have or ever had against the RELEASEES, from the beginning of time to the
date of this Release, arising out of, related to, or connected with the Cross License Agreement
between Aspen Aerogels, Inc. and Cabot Corporation, dated as of April 1, 2006 (hereinafter referred
to as the “CLA”), or the Event of Default, Notice of Default, Notice of Partial Termination or
Licensed Intellectual Property as they are defined in the Settlement Agreement and First Amendment
to Cross License Agreement between Aspen Aerogels, Inc. and Cabot Corporation, dated as of
September 21, 2007 (hereinafter referred to as the “Settlement Agreement”), including, without
limitation, all claims, counterclaims and defenses asserted, or that could have been asserted, by
the RELEASORS in, or in connection with, the litigation captioned Aspen Aerogels, Inc. v. Cabot
Corporation, Civil Action No. 2675-N, pending in the


 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




Page 1 of 3









 




Court of Chancery of the State of Delaware in and for New Castle County, and all claims,
counterclaims and defenses asserted, that could have been asserted, or that could be asserted in
the future by the RELEASORS arising out of, related to, or connected with the validity or
enforceability of (a) any of the Cabot Issued Patents, (b) any patent that actually is issued to or
acquired by Cabot on or before July 1, 2007 on account of one or more of the licensed Patent
Applications and Acquired Patents, or (c) any foreign counterparts of the patents referenced in
(b), supra, regardless of when they are issued.




     By executing this Release, the RELEASORS agree and acknowledge that their representatives have
read this document with care and with the advice of counsel, and that no representation of fact or
opinion has been made to the RELEASORS by anyone which has induced the RELEASORS in any manner to
execute this Release.



     Capitalized terms used in this Release but not otherwise defined shall have the meanings
attributed to them in the CLA and/or the Settlement Agreement.



     Nothing herein is intended to, or shall be construed to, release or discharge any obligations
for future performance, or restrictions imposed upon any rights granted, under the CLA, as amended,
or the Settlement Agreement.



     In WITNESS HEREOF, the RELEASERS have caused this release to be executed by their duly
authorized representatives this 21st day of September, 2007.


 Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




Page 2 of 3









 





	 	 	 	 	 
	 	ASPEN AEROGELS, INC.

 	 
	 	By  	/s/ Donald R. Young
 	 
	 	 	Name:  	Donald R. Young 	 
	 	 	Title:  	President 	 
	 
	 	WITNESS

 	 
	 	/s/ Richard M.C. Glenn
 	 
	 	Name:  	Richard M.C. Glenn 	 
	 	Title:  	Secretary 	 
	 


Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.





Page 3 of 3