EXHIBIT 10.1
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OEM CONSUMABLES SUPPLY AGREEMENT
This Agreement is made and entered into as of the 1st day of July, 2003 (the
"Effective Date"),
by and between
Xxxxxxxxxxxx Druckmaschinen AG
Kurfursten-Anlage 52-60
D-69115 Heidelberg
Germany
(hereinafter referred to as,,HEIDELBERG")
and
Presstek, Inc
00 Xxxxxxxxx Xxxxx
Xxxxxx, Xxx Xxxxxxxxx, XX 00000-00000
Xxxxxx Xxxxxx of America
(hereinafter referred to as,,PRESSTEK")
WITNESSETH:
WHEREAS HEIDELBERG desires and is willing to purchase certain of the
subsequently specified products from PRESSTEK for re-sale on an OEM basis in
accordance with the terms and conditions of this Agreement and,
WHEREAS PRESSTEK desires and is willing to manufacture, sell and supply to
HEIDELBERG and to its affiliates and authorized local Sales and Service Units
("SSUs") such products on an OEM basis for re-sale,
NOW THEREFORE, the Parties agree as follows:
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1. DEFINITIONS
In this AGREEMENT the following terms have the following meaning except where
the context otherwise requires:
1.1 "Products" means a [CONFIDENTIAL TREATMENT REQUESTED] /*/ printing
plate as currently manufactured and offered by PRESSTEK and as further
described in ATTACHMENT A hereto including future modifications thereof
that is to be manufactured by PRESSTEK for HEIDELBERG on an OEM basis, and
branded as a Heidelberg product, in accordance with the terms of this
Agreement. Products specified in ATTACHMENT A may only be added, deleted or
substituted upon written agreement of both Parties.
1.2 "Specifications" means the specifications of the Products as
described in ATTACHMENT B.
2. TRADEMARK
2.1 The Products shall be marketed, sold, and distributed under
HEIDELBERG's own trademarks or trade-names.
2.2 PRESSTEK shall affix to the package of Products such HEIDELBERG
labels as being designated by HEIDELBERG in ATTACHMENTS C and D.
HEIDELBERG may change or modify the packaging or label of the
Products upon [CONFIDENTIAL TREATMENT REQUESTED] /*/ days written
notice to PRESSTEK provided however that any reasonable costs
incurred in changing or modifying such packaging or label shall be
[CONFIDENTIAL TREATMENT REQUESTED] /*/ by [CONFIDENTIAL TREATMENT
REQUESTED] /*/ for reimbursement. HEIDELBERG shall supply to PRESSTEK
the information necessary for all such subsequent changes of labels
and packaging. The same procedure shall apply to and shall be pursued
accordingly regarding any future Products that may be added or
substituted upon written agreement by the Parties in ATTACHMENT A.
2.3 HEIDELBERG agrees to provide PRESSTEK at [CONFIDENTIAL TREATMENT
REQUESTED] /*/'s expense with all necessary artwork for labels and
packaging for Products. On the basis of such artwork PRESSTEK shall
produce the respective labels. The boxes for packaging shall be
procured by [CONFIDENTIAL TREATMENT REQUESTED] /*/.
2.4 Packaging and labelling of Products as well as all informative
material such as brochures, manuals etc. shall bear no direct
reference to PRESSTEK unless required by law.
3. PURCHASE AND SALE / TERRITORY
3.1 PRESSTEK agrees to manufacture, sell and supply Products to
HEIDELBERG, and HEIDELBERG agrees to order and purchase such
quantities of Products as HEIDELBERG may order from time to time
under the terms and conditions of this
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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Agreement. HEIDELBERG shall be entitled to re-sell Products on a
[CONFIDENTIAL TREATMENT REQUESTED] /*/ basis in compliance with the
pricing terms for the territories as described in more detail in
ATTACHMENT E.
3.2 PRESSTEK shall not sell the Products marked with HEIDELBERG's labels
to any other customer but HEIDELBERG, HEIDELBERG's affiliated
companies or SSUs of HEIDELBERG.
3.3 PRESSTEK offers the terms and conditions as set forth in Section 4
and ATTACHMENT E of this Agreement to HEIDELBERG based on the
following assumptions of HEIDELBERG with regard to HEIDELBERG's
Quickmaster 46-DI Classic press (the "Classic") and its respective
customer base (the "Classic Customers"):
- prior to July 1st, 2004, [CONFIDENTIAL TREATMENT REQUESTED] /*/,
and
- HEIDELBERG further assumes that for the period between July 1st,
2004 and December 31st, 2004 [CONFIDENTIAL TREATMENT REQUESTED] /*/.
For the purpose of this Agreement, sales volumes shall be calculated
based on the number of plate rolls (or, if necessary for comparison
of quantities, the number of plates) sold.
Based on the assumptions set out above, the parties agree as follows:
A. Beginning on the Effective Date of this Agreement, through July
1, 2004, HEIDELBERG will [CONFIDENTIAL TREATMENT REQUESTED] /*/
to Classic Customers. As an exception thereto, HEIDELBERG shall
be entitled to [CONFIDENTIAL TREATMENT REQUESTED] /*/ to the
Classic Customers.
B. Beginning on July 1, 2004 through December 31, 2004, HEIDELBERG
will purchase from PRESSTEK [CONFIDENTIAL TREATMENT REQUESTED]
/*/ an amount of plates equal to [CONFIDENTIAL TREATMENT
REQUESTED] /*/ of HEIDELBERG's [CONFIDENTIAL TREATMENT REQUESTED]
/*/ plate sales volume to the Classic Customers during this six
months period (the [CONFIDENTIAL TREATMENT REQUESTED] /*/).
C. Not more than [CONFIDENTIAL TREATMENT REQUESTED] /*/, PRESSTEK
shall have the right [CONFIDENTIAL TREATMENT REQUESTED] /*/ to
have an [CONFIDENTIAL TREATMENT REQUESTED] /*/ choosing
[CONFIDENTIAL TREATMENT REQUESTED] /*/ relevant HEIDELBERG
[CONFIDENTIAL TREATMENT REQUESTED] /*/ that would indicate
whether [CONFIDENTIAL TREATMENT REQUESTED] /*/ set out in item B
herein. The [CONFIDENTIAL TREATMENT REQUESTED] /*/ shall comprise
the last [CONFIDENTIAL TREATMENT REQUESTED] /*/ months. If the
[CONFIDENTIAL TREATMENT REQUESTED] /*/ a [CONFIDENTIAL TREATMENT
REQUESTED] /*/ of [CONFIDENTIAL TREATMENT REQUESTED] /*/ shall be
entitled and obligated to [CONFIDENTIAL TREATMENT REQUESTED] /*/
such [CONFIDENTIAL TREATMENT REQUESTED] /*/ within the following
[CONFIDENTIAL TREATMENT REQUESTED] /*/, to meet the [CONFIDENTIAL
TREATMENT REQUESTED] /*/ for the previous periods; in addition,
[CONFIDENTIAL TREATMENT REQUESTED] /*/ shall bear [CONFIDENTIAL
TREATMENT REQUESTED] /*/ with respect to the following
[CONFIDENTIAL TREATMENT REQUESTED] /*/ .
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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D. At the end of each [CONFIDENTIAL TREATMENT REQUESTED] /*/,
designated representatives of the parties will meet to review a
true and accurate reporting of the [CONFIDENTIAL TREATMENT
REQUESTED] /*/ reflecting the amount of [CONFIDENTIAL TREATMENT
REQUESTED] /*/ Classic Customers for the [CONFIDENTIAL TREATMENT
REQUESTED] /*/ basis, (the "[CONFIDENTIAL TREATMENT REQUESTED]
/*/"). If a review of the [CONFIDENTIAL TREATMENT REQUESTED] /*/
reveals a variance between the [CONFIDENTIAL TREATMENT REQUESTED]
/*/ and the [CONFIDENTIAL TREATMENT REQUESTED] /*/ for that
period of time, then the [CONFIDENTIAL TREATMENT REQUESTED] /*/
for the next [CONFIDENTIAL TREATMENT REQUESTED] /*/ shall be
[CONFIDENTIAL TREATMENT REQUESTED] /*/ upon [CONFIDENTIAL
TREATMENT REQUESTED] /*/ request (hereinafter referred to as
[CONFIDENTIAL TREATMENT REQUESTED] /*/) no matter whether this
results in a [CONFIDENTIAL TREATMENT REQUESTED] /*/ or
[CONFIDENTIAL TREATMENT REQUESTED] /*/. However, [CONFIDENTIAL
TREATMENT REQUESTED] /*/ shall only be entitled to request such
Forecast Adjustment, and PRESSTEK shall only be obligated to
agree on such [CONFIDENTIAL TREATMENT REQUESTED] /*/, if and as
long as [CONFIDENTIAL TREATMENT REQUESTED] /*/ at least meets the
[CONFIDENTIAL TREATMENT REQUESTED] /*/. Apart from its right to
require [CONFIDENTIAL TREATMENT REQUESTED] /*/ of the
[CONFIDENTIAL TREATMENT REQUESTED] /*/ by [CONFIDENTIAL TREATMENT
REQUESTED] /*/ shall not be entitled to, and hereby [CONFIDENTIAL
TREATMENT REQUESTED] /*/
4. PRICES AND TERMS OF PAYMENT
4.1 Except as otherwise provided herein the prices for Products shall be
[CONFIDENTIAL TREATMENT REQUESTED] /*/ prices for [CONFIDENTIAL
TREATMENT REQUESTED] /*/ plate material or any other [CONFIDENTIAL
TREATMENT REQUESTED] /*/ independent from the product name, the
latter hereinafter referred to as [CONFIDENTIAL TREATMENT REQUESTED]
/*/, for [CONFIDENTIAL TREATMENT REQUESTED] /*/. If (i) [CONFIDENTIAL
TREATMENT REQUESTED] /*/ However, at any rate and independent from
such [CONFIDENTIAL TREATMENT REQUESTED] /*/ or successor products
thereof (hereinafter collectively referred to as the [CONFIDENTIAL
TREATMENT REQUESTED] /*/) at PRESSTEK's [CONFIDENTIAL TREATMENT
REQUESTED] /*/ PRESSTEK represents and warrants that the
[CONFIDENTIAL TREATMENT REQUESTED] /*/ current [CONFIDENTIAL
TREATMENT REQUESTED] /*/ In case of any future [CONFIDENTIAL
TREATMENT REQUESTED] /*/, PRESSTEK shall be obligated to
[CONFIDENTIAL TREATMENT REQUESTED] /*/ - at PRESSTEK's [CONFIDENTIAL
TREATMENT REQUESTED] /*/ To the extent PRESSTEK offers to HEIDELBERG,
its affiliates or its SSUs certain [CONFIDENTIAL TREATMENT REQUESTED]
/*/ only for [CONFIDENTIAL TREATMENT REQUESTED] /*/ the introduction
of new [CONFIDENTIAL TREATMENT REQUESTED] /*/ and the like),
[CONFIDENTIAL TREATMENT REQUESTED] /*/ shall [CONFIDENTIAL TREATMENT
REQUESTED] /*/ for any [CONFIDENTIAL TREATMENT REQUESTED] /*/
resulting from any re-sale of such [CONFIDENTIAL TREATMENT REQUESTED]
/*/ its affiliates or its
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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[CONFIDENTIAL TREATMENT REQUESTED] /*/ from [CONFIDENTIAL TREATMENT
REQUESTED] /*/ to [CONFIDENTIAL TREATMENT REQUESTED] /*/ in which
such [CONFIDENTIAL TREATMENT REQUESTED] /*/ did not apply at the time
of such [CONFIDENTIAL TREATMENT REQUESTED] /*/
4.2 All prices of Products are [CONFIDENTIAL TREATMENT REQUESTED] /*/
4.3 Prices shall be payable without [CONFIDENTIAL TREATMENT REQUESTED]
/*/ from the date of receipt of the invoice at HEIDELBERG, its
affiliate or SSU.
4.4 All payments under this Agreement shall be made in [CONFIDENTIAL
TREATMENT REQUESTED] /*/ to the account of PRESSTEK as specified in
the relevant invoice.
4.5 Not more than once every [CONFIDENTIAL TREATMENT REQUESTED] /*/ shall
have the right at its own costs and expenses to have an independent
[CONFIDENTIAL TREATMENT REQUESTED] /*/ of [CONFIDENTIAL TREATMENT
REQUESTED] /*/ choosing [CONFIDENTIAL TREATMENT REQUESTED] /*/
relevant [CONFIDENTIAL TREATMENT REQUESTED] /*/ documents that would
indicate whether [CONFIDENTIAL TREATMENT REQUESTED] /*/ period shall
comprise the last [CONFIDENTIAL TREATMENT REQUESTED] /*/. If the
[CONFIDENTIAL TREATMENT REQUESTED] /*/ a [CONFIDENTIAL TREATMENT
REQUESTED] /*/ of [CONFIDENTIAL TREATMENT REQUESTED] /*/ shall be
entitled and obligated to [CONFIDENTIAL TREATMENT REQUESTED] /*/ and
pay to [CONFIDENTIAL TREATMENT REQUESTED] /*/ the respective
[CONFIDENTIAL TREATMENT REQUESTED] /*/ within the following
[CONFIDENTIAL TREATMENT REQUESTED] /*/ to meet such requirement for
the previous periods; in addition, [CONFIDENTIAL TREATMENT REQUESTED]
/*/ shall bear [CONFIDENTIAL TREATMENT REQUESTED] /*/ and
[CONFIDENTIAL TREATMENT REQUESTED] /*/ with respect to the following
[CONFIDENTIAL TREATMENT REQUESTED] /*/
5. PURCHASE ORDERS AND [CONFIDENTIAL TREATMENT REQUESTED] /*/
5.1 HEIDELBERG will provide PRESSTEK every [CONFIDENTIAL TREATMENT
REQUESTED] /*/ with rolling [CONFIDENTIAL TREATMENT REQUESTED] /*/
for each Product under this Agreement. The initial [CONFIDENTIAL
TREATMENT REQUESTED] /*/ for the period [CONFIDENTIAL TREATMENT
REQUESTED] /*/ is enclosed as ATTACHMENT F. As an exception to
Section 5.2, the first [CONFIDENTIAL TREATMENT REQUESTED] /*/ of the
initial [CONFIDENTIAL TREATMENT REQUESTED] /*/ shall be [CONFIDENTIAL
TREATMENT REQUESTED] /*/
5.2 Subject to any [CONFIDENTIAL TREATMENT REQUESTED] /*/ as set forth in
Section 3.3 D, each of HEIDELBERG's subsequent [CONFIDENTIAL
TREATMENT REQUESTED] /*/ shall provide for [CONFIDENTIAL TREATMENT
REQUESTED] /*/ order volumes as follows:
[CONFIDENTIAL TREATMENT REQUESTED] /*/ of each [CONFIDENTIAL
TREATMENT REQUESTED] /*/ shall be [CONFIDENTIAL TREATMENT REQUESTED]
/*/)
- [CONFIDENTIAL TREATMENT REQUESTED] /*/ of each [CONFIDENTIAL
TREATMENT REQUESTED] /*/ shall be [CONFIDENTIAL TREATMENT REQUESTED]
/*/ but allowing for a [CONFIDENTIAL TREATMENT REQUESTED] /*/; and
[CONFIDENTIAL TREATMENT REQUESTED] /*/ of each [CONFIDENTIAL
TREATMENT REQUESTED] /*/ shall be [CONFIDENTIAL TREATMENT REQUESTED]
/*/
If HEIDELBERG fails to provide PRESSTEK with [CONFIDENTIAL TREATMENT
REQUESTED] /*/ from time to time, the [CONFIDENTIAL TREATMENT
REQUESTED] /*/ shall [CONFIDENTIAL TREATMENT REQUESTED] /*/ until
HEIDELBERG submits a [CONFIDENTIAL TREATMENT REQUESTED] /*/.
HEIDELBERG shall [CONFIDENTIAL TREATMENT REQUESTED] /*/ any order
[CONFIDENTIAL TREATMENT REQUESTED] /*/ already become [CONFIDENTIAL
TREATMENT REQUESTED] /*/
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
- 5 -
If the [CONFIDENTIAL TREATMENT REQUESTED] /*/ of HEIDELBERG, its
affiliates and SSUs [CONFIDENTIAL TREATMENT REQUESTED] /*/ PRESSTEK
will undertake reasonable commercial efforts to [CONFIDENTIAL
TREATMENT REQUESTED] /*/ With regard to HEIDELBERG's obligation to
[CONFIDENTIAL TREATMENT REQUESTED] /*/ resulting from increased
[CONFIDENTIAL TREATMENT REQUESTED] /*/ in previous quarters, PRESSTEK
shall be obligated to [CONFIDENTIAL TREATMENT REQUESTED] /*/
5.3 HEIDELBERG and, subject to Section 5.5, also its affiliates and SSUs
shall during the effective period of this Agreement [CONFIDENTIAL
TREATMENT REQUESTED] /*/ PRESSTEK their [CONFIDENTIAL TREATMENT
REQUESTED] /*/ for the shipment of Products as specified in this
Agreement. HEIDELBERG shall specify the [CONFIDENTIAL TREATMENT
REQUESTED] /*/ The Parties may agree upon further details regarding
their day to day order processes.
5.4 [CONFIDENTIAL TREATMENT REQUESTED] /*/
5.5 HEIDELBERG's affiliates and SSUs shall be [CONFIDENTIAL TREATMENT
REQUESTED] /*/ Products from [CONFIDENTIAL TREATMENT REQUESTED] /*/
in accordance with the then applicable [CONFIDENTIAL TREATMENT
REQUESTED] /*/ and the terms and conditions of this Agreement. For
this purpose, HEIDELBERG shall be [CONFIDENTIAL TREATMENT REQUESTED]
/*/ undertakes to inform its affiliates and SSUs about this Agreement
accordingly; this shall include [CONFIDENTIAL TREATMENT REQUESTED]
/*/ obligations as set forth in Section 12. HEIDELBERG's affiliates
and SSUs shall further [CONFIDENTIAL TREATMENT REQUESTED] /*/ this
Agreement when placing an order with PRESSTEK. With respect to their
orders of Products to PRESSTEK, HEIDELBERG's affiliates and SSUs
shall [CONFIDENTIAL TREATMENT REQUESTED] /*/ in Sections 8, 9, 10,
11.4.B and 13 of this Agreement provided that they also [CONFIDENTIAL
TREATMENT REQUESTED] /*/ with the respective HEIDELBERG [CONFIDENTIAL
TREATMENT REQUESTED] /*/ as set forth therein.
As an alternative, HEIDELBERG affiliates and SSUs may [CONFIDENTIAL
TREATMENT REQUESTED] /*/ with PRESSTEK at [CONFIDENTIAL TREATMENT
REQUESTED] /*/ as set forth in this Agreement and the terms of such
[CONFIDENTIAL TREATMENT REQUESTED] /*/ shall then prevail until such
[CONFIDENTIAL TREATMENT REQUESTED] /*/ expires. However, any Products
[CONFIDENTIAL TREATMENT REQUESTED] /*/ such [CONFIDENTIAL TREATMENT
REQUESTED] /*/ shall [CONFIDENTIAL TREATMENT REQUESTED] /*/ of
Products as set forth in Sections 5.1 and 5.2 of this Agreement.
6. TERMS OF DELIVERY
6.1 Delivery of Products shall be carried out as [CONFIDENTIAL TREATMENT
REQUESTED] /*/ by HEIDELBERG, its affiliates or SSUs as the case may
be. However, PRESSTEK's [CONFIDENTIAL TREATMENT REQUESTED] /*/
Shipment mode shall be at the discretion of [CONFIDENTIAL TREATMENT
REQUESTED] /*/ always provided that any additional costs regarding
special packaging, insurance, terms and conditions regarding freight
and transportation and the like shall be borne by [CONFIDENTIAL
TREATMENT REQUESTED] /*/ which have [CONFIDENTIAL TREATMENT
REQUESTED] /*/ such order. Loss or damage to Products after delivery
that is the result of [CONFIDENTIAL TREATMENT REQUESTED] /*/ shall
remain [CONFIDENTIAL TREATMENT REQUESTED] /*/ responsibility.
[CONFIDENTIAL TREATMENT REQUESTED] /*/ shall not be liable to
[CONFIDENTIAL TREATMENT REQUESTED] /*/
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
- 6 -
after delivery to [CONFIDENTIAL TREATMENT REQUESTED] /*/ for
transportation or for [CONFIDENTIAL TREATMENT REQUESTED] /*/. Claims
for shortage or damages caused in transit other than as a result of
faulty packaging and handling by [CONFIDENTIAL TREATMENT REQUESTED]
/*/ shall be made against the [CONFIDENTIAL TREATMENT REQUESTED] /*/
with a copy to [CONFIDENTIAL TREATMENT REQUESTED] /*/ Claims for
shortage not attributable to [CONFIDENTIAL TREATMENT REQUESTED] /*/
must be made by [CONFIDENTIAL TREATMENT REQUESTED] /*/ against
[CONFIDENTIAL TREATMENT REQUESTED] /*/ within [CONFIDENTIAL TREATMENT
REQUESTED] /*/ after receipt of the Products, as far as such
deficiency can be discovered by reasonable examination, otherwise
without delay after detection at the specified destination.
7. PRODUCT SPECIFICATIONS
7.1 No material changes to the Specifications shall be made by either
Party except by mutually agreed upon written amendments to ATTACHMENT
B.
7.2 If PRESSTEK develops or changes the nature of Products PRESSTEK shall
notify HEIDELBERG [CONFIDENTIAL TREATMENT REQUESTED] /*/ in advance
for changes in Product specifications and provide test products for
further evaluation.
8. TRAINING AND MARKETING SUPPORT
8.1 PRESSTEK will provide HEIDELBERG upon HEIDELBERG's request and at
[CONFIDENTIAL TREATMENT REQUESTED] /*/ expense with necessary
training, informative materials and assistance. PRESSTEK shall
[CONFIDENTIAL TREATMENT REQUESTED] /*/ HEIDELBERG, its affiliates and
SSUs for such requested services [CONFIDENTIAL TREATMENT REQUESTED]
/*/.
8.2 PRESSTEK agrees to provide HEIDELBERG with all collateral text and
images (sales, training and support material such as data sheets,
handbooks, manuals, etc.) to enable HEIDELBERG to produce appropriate
own collateral material. PRESSTEK further grants HEIDELBERG the
permission to use and change the presentation, layout and the
contents of the material for the purposes of HEIDELBERG and to add
any label, brand or trademark which HEIDELBERG deems appropriate.
9. PRODUCT WARRANTY
9.1 PRESSTEK warrants that all Products delivered to HEIDELBERG during
the term of this Agreement are free from defects shall and meet the
finished product performance and manufacturing specifications set
forth in ATTACHMENT B. The warranty period is [CONFIDENTIAL TREATMENT
REQUESTED] /*/ from the date on which the Products were [CONFIDENTIAL
TREATMENT REQUESTED] /*/ HEIDELBERG at the destination as stipulated
in the purchase order.
9.2 In case of breach of warranty PRESSTEK shall [CONFIDENTIAL TREATMENT
REQUESTED] /*/ HEIDELBERG the Product or [CONFIDENTIAL TREATMENT
REQUESTED] /*/ for the defective product. All [CONFIDENTIAL TREATMENT
REQUESTED] /*/ including transportation and applicable taxes shall be
borne by the [CONFIDENTIAL TREATMENT REQUESTED] /*/.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
- 7 -
9.3 HEIDELBERG shall notify PRESSTEK of any defect of the Product within
[CONFIDENTIAL TREATMENT REQUESTED] /*/ from discovery of the defect
in written form at the latest within [CONFIDENTIAL TREATMENT
REQUESTED] /*/ after receipt of the Product.
10. PRODUCT LIABILITY
10.1 [CONFIDENTIAL TREATMENT REQUESTED] /*/
10.2 In case a claim for product liability is made against [CONFIDENTIAL
TREATMENT REQUESTED] /*/ shall co-operate with [CONFIDENTIAL
TREATMENT REQUESTED] /*/ in investigating appropriate actions in
compliance with [CONFIDENTIAL TREATMENT REQUESTED] /*/ request and
such co-operation shall be made without any expense to [CONFIDENTIAL
TREATMENT REQUESTED] /*/
11. TERM AND TERMINATION
11.1 This Agreement shall be effective for [CONFIDENTIAL TREATMENT
REQUESTED] /*/ from the Effective Date unless sooner terminated in
accordance with any provision of Section 11.2 or Section 11.3.
11.2 Either Party may terminate this Agreement by [CONFIDENTIAL TREATMENT
REQUESTED] /*/ written notice. The earliest possible date for
effectively terminating this Agreement shall be [CONFIDENTIAL
TREATMENT REQUESTED] /*/. Termination of this Agreement for any
reason will have no affect on [CONFIDENTIAL TREATMENT REQUESTED] /*/
rights as they are set out in Paragraph 4.b of the Master Agreement
of 1991 between the Parties, such rights remaining subject to the
applicable terms of said Master Agreement.
11.3 Either Party may terminate this Agreement by giving a written notice
of termination to the other Party if:
A. The other Party fails to perform or otherwise [CONFIDENTIAL
TREATMENT REQUESTED] /*/ under this Agreement provided that such
Party failing to perform or otherwise [CONFIDENTIAL TREATMENT
REQUESTED] /*/ shall have [CONFIDENTIAL TREATMENT REQUESTED] /*/
from the date notice of intention to terminate is received to
cure the failure or the material breach at which time this
Agreement shall terminate if the failure or breach has not been
cured, or
B. Performance of any non-monetary obligation under this Agreement
has been rendered impossible to the other Party for a period of
[CONFIDENTIAL TREATMENT REQUESTED] /*/ consecutive [CONFIDENTIAL
TREATMENT REQUESTED] /*/ by reason of the occurrence of any of
the events described in Section 16.1 or if any other event
occurs which will be reasonably determined to permanently
prevent performance of this Agreement, or
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
- 8 -
C. If the other Party [CONFIDENTIAL TREATMENT REQUESTED] /*/
corporate [CONFIDENTIAL TREATMENT REQUESTED] /*/ or for any
similar relief is filed by or against the other Party, or a
[CONFIDENTIAL TREATMENT REQUESTED] /*/ with respect to any of
the assets of the other Party, or a [CONFIDENTIAL TREATMENT
REQUESTED] /*/ is commenced by or against the other Party , or
D. If the other Party defaults in any of the provisions of this
Agreement not covered in Section 11.3 A. and does not remedy the
default within [CONFIDENTIAL TREATMENT REQUESTED] /*/ after a
written notice is given requesting to remedy the default.
11.4 In the event this Agreement is terminated for any reason
A. Each Party shall promptly return to the other at the receiving
Party's expense all property belonging to the other which is in
such Party's possession as of the termination date (including,
without limitation, HEIDELBERG materials and all labels and
other packaging supplies bearing any "HEIDELBERG" trademarks in
PRESSTEK's possession as of the termination date).
B. PRESSTEK shall not be required to make any further shipment of
Products to HEIDELBERG and may cancel all HEIDELBERG's unshipped
orders for Products except with respect to (a) all [CONFIDENTIAL
TREATMENT REQUESTED] /*/ received by PRESSTEK prior to the
notice of termination pursuant to Section 5.3 and (b) any
Product sold by HEIDELBERG pursuant to a valid and binding
obligation the existence of which obligation has been made known
to PRESSTEK within [CONFIDENTIAL TREATMENT REQUESTED] /*/ after
the notice of termination.
C. Neither Party shall be relieved of any unfulfilled obligations
(including without limitation HEIDELBERG's obligation to pay for
Products shipped prior to the termination date) existing on the
termination date.
11.5 Any order placed by HEIDELBERG and accepted by PRESSTEK after the
termination or expiration of this Agreement is governed by the
provisions of this Agreement. The placing, receipt or shipment of
post-termination or post-expiration orders does NOT otherwise extend
the term of this Agreement.
12 CONFIDENTIALITY
12.1 During the term of this Agreement, each Party shall maintain
confidentiality of any technical or commercial information disclosed
or otherwise revealed to it hereunder or coming to its attention in
strict compliance with the Mutual Confidentiality Agreement between
the Parties dated July 13, 2001 (ATTACHMENT G).
13 INTELLECTUAL PROPERTY INDEMNIFICATION
13.1 PRESSTEK shall defend, at its own expense, any suit or proceeding
against HEIDELBERG for the infringement of any patent or intellectual
property rights of third
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
- 9 -
parties because of the reasons of offering, putting on the market,
using or stocking the Products. PRESSTEK shall pay all damages and
costs (including attorney's fees) finally awarded against HEIDELBERG
because of infringement for the above-mentioned reasons.
13.2 PRESSTEK's obligations under Section 13.1 above are conditioned upon
HEIDELBERG giving PRESSTEK written notice of any suit or proceeding
or any claim of infringement without undue delay. Upon PRESSTEK's
request, HEIDELBERG shall furnish to PRESSTEK a copy of each
communication relating to the alleged infringement and give to
PRESSTEK all authority (including the right to exclusive control of
the defence and settlement of any such suit or proceeding),
information and assistance at PRESSTEK's expense necessary to defend
or settle such suit or proceeding. However, the aforementioned
obligations of HEIDELBERG shall only apply as long as PRESSTEK
pursues the defence of such matter professionally and in due course.
HEIDELBERG reserves the right to defend its own interests in such
matters and shall not be bound by any settlement made by PRESSTEK
without HEIDELBERG's prior written consent.
14 DISPUTES AND JURISDICTION
14.1 Both Parties shall endeavour to settle possible points at issue or
disputes relating to this Agreement in an amicable way. In case a
controversy cannot be solved by the management dealing with the
matter on an operational level, the dispute shall be transferred to
[CONFIDENTIAL TREATMENT REQUESTED] /*/ of both Parties who shall then
try to find a mutual solution within [CONFIDENTIAL TREATMENT
REQUESTED] /*/ following their involvement.
14.2 If the foregoing escalation procedure does not lead to a solution
within [CONFIDENTIAL TREATMENT REQUESTED] /*/ after written notice by
one Party to the other shall thereafter be settled by binding
arbitration in New York, U.S.A., to be conducted in English pursuant
to rules of arbitration of the [CONFIDENTIAL TREATMENT REQUESTED] /*/
and judgment on the award rendered in such arbitration may be entered
by any court having jurisdiction.
15 GOVERNING LAW
15.1 This Agreement shall be governed by and interpreted in accordance
with the laws of the State of New York, U.S.A.
16 FORCE MAJEURE
16.1 Neither Party hereto shall be liable to the other Party for failure
to perform its obligations hereunder due to the occurrence of any
event beyond the reasonable control of such Party and affecting its
performance for any delay or failure to perform in accordance with
the provisions of this Agreement caused by circumstances beyond its
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
- 10 -
control including and without limitation acts of government,
governmental orders or regulations, outbreaks of a state of
emergency, acts of God, war, warlike conditions, civil commotion,
riots, epidemics, natural disaster, strikes, lockouts other labour
dispute or any other similar cause (hereinafter referred to as "Force
Majeure").
17 MISCELLANEOUS PROVISIONS
17.1 Notices
Any notice required or permitted to be given hereunder shall be in
writing and shall be transmitted by facsimile (followed by
confirmation), delivered by hand or sent by certified or registered
mail and shall be deemed given when so delivered personally or if
transmitted by facsimile one day after the date of such facsimile was
properly transmitted or if mailed [CONFIDENTIAL TREATMENT REQUESTED]
/*/ after the date of mailing to the Parties at the addresses stated
on the first page of this agreement (or to such Party and/or such
other address as shall be specified by like notice from the Party to
which notice or other communication shall be given provided however
that such notice of a change of address shall be effective only upon
receipt thereof).
17.2 Assignability
This Agreement including all rights and obligations in whole or in
part shall not be assigned by either Party to any third party without
the prior written consent of the other Party, except that HEIDELBERG
may assign this agreement to a majority owned subsidiary of
Xxxxxxxxxxxx Druckmaschinen Aktiengesellschaft, Kurfursten-Anlage 00
- 00, X - 00000 Xxxxxxxxxx or a transferee of all or substantially
all of Heidelberg's assets or other successor to the graphic arts
business of HEIDELBERG.
17.3 Waivers
The failure to exercise or enforce any right conferred upon any of
the Parties hereto hereunder shall not be deemed to be a waiver of
any such right.
17.4 Entire Agreement
This Agreement contains the entire agreement between the Parties
hereto with respect to the transactions with respect to the Products
contemplated herein and - except as provided herein - supersedes all
previous oral and written and all contemporaneous oral negotiations,
commitments, writings and understanding between the Parties regarding
and limited to the subject matter of this Agreement. Each Party
agrees that it has not relied upon any representation warranty or
provision not explicitly stated in this Agreement and that no oral
statement has been made to either Party that in any way tends to
waive any of the terms or conditions of this Agreement. This
Agreement together with its ATTACHMENTs is intended by the Parties to
be a final complete and exclusive statement of all terms and
conditions of this Agreement. It may only be
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
- 11 -
amended or changed by a written agreement signed by the
representatives of both Parties.
17.5 Severability
Any provision of this Agreement which is invalid, illegal or
unenforceable in any jurisdiction shall be ineffective to the extent
of such invalidity, illegality or unenforceability without affecting
in any way the remaining provisions hereof in such jurisdiction or
rendering any other provision of this Agreement invalid, illegal or
unenforceable in any other jurisdiction. Any provision so severed
will be deemed substituted by a valid provision accomplishing the
Parties' intent to the closest effect possible.
(The rest of this page is intentionally left blank)
- 12 -
IN WITNESS WHEREOF, the Parties hereto acting by and through their duly
authorised representatives have executed this Agreement.
HEIDELBERG PRESSTEK
Signed: /s/ Xxxxx Xxxxxx Signed: /s/ Xxxxxx X. Xxxxxx
--------------------------- ---------------------------
Name: Xx. Xxxxx Xxxxxx Name: Xxxxxx X. Xxxxxx
----------------------------- ------------------------------
Title: Member of the Board Title: President and CEO
---------------------------- -----------------------------
Signed: /s/ Wirnt Xxxxxxx Signed:
--------------------------- ----------------------------
Name: Wirnt Xxxxxxx Name:
----------------------------- ------------------------------
Title: General Counsel Title:
---------------------------- ------------------------------
Date: July 1st, 2003 Date:
----------------------------- ------------------------------
ATTACHMENT A
Quickplate which is a version or versions of the [CONFIDENTIAL TREATMENT
REQUESTED] /*/ printing plate as [CONFIDENTIAL TREATMENT REQUESTED] /*/
manufactured and offered by PRESSTEK including future modifications thereof
that is to be manufactured by PRESSTEK for HEIDELBERG on an OEM basis, and
branded as a HEIDELBERG product called "Quickplate".
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
- 13 -
ATTACHMENT B
PRODUCT SPECIFICATIONS
- PLATE SPECIFICATIONS -
PRODUCT NAME: Heidelberg Quickplate
PRODUCT DESCRIPTION: Metalized polyester film with silicone coating.
PRODUCT APPLICATION: Plate material for Heidleberg QMDI 46 printing presses. The
material is spooled on steel cores that engage unwind and take-up mechanisms
integral to the press plate cylinder. The design allows a specific amount of
material to be advanced into imaging and printing position. A thermal laser
imaging system creates a latent image on the surface of the plate. A subsequent
cleaning step removes silicone in the imaged areas, creating an ink-receptive
printing master. Up to 20,000* copies can be produced from the printing master.
*Actual run length performance may vary.
PRODUCT SPECIFICATION:
------------------------ -----------------------
Heidelberg
Quickplate
------------------------ -----------------------
Spool width 339.5mm
------------------------ -----------------------
Spool Length 19.5m
------------------------ -----------------------
- 14 -
ATTACHMENT C
Plate Label
[Plate Label]
- 15 -
ATTACHMENT D
Box Label
[Box Label]
- 00 -
XXXXXXXXXX X
Xxxxxxxxx: [CONFIDENTIAL TREATMENT REQUESTED] /*/ (subject to Section 3.3)
[CONFIDENTIAL TREATMENT REQUESTED] /*/
PRICE/BO
COUNTRY X SPECIAL PROMOTIONAL PROGRAM
--------------------------------------------------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
- 17-
ATTACHMENT F
Presstek Saphira Quickplate 46
-------------------------------------------------------------------------------------
Months
-------------------------------------------------------------------------------------
in boxes of 4 rolls July 03 August Sept Oct Nov Dec Jan 04 Feb March April May June
----------------------------- ------------------------ --------------------------
[CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT
REQUESTED] /*/ REQUESTED] /*/ REQUESTED] /*/
-------------------------------------------------------------------------------------
WLC [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
-------------------------------------------------------- ---------------------------------------------------
[CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/ [CONFIDENTIAL TREATMENT REQUESTED] /*/
[CONFIDENTIAL TREATMENT REQUESTED] /*/
Own stock consumption
Wiesloch stock reduction
*[CONFIDENTIAL TREATMENT REQUESTED] /*/
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
-18 -
ATTACHMENT G
Mutual Confidentiality Agreement between the Parties dated July 13, 2001
MUTUAL CONFIDENTIALITY AGREEMENT
This agreement is made and entered into effective as of July
13, 2001, by and between Presstek, Inc., having an office and place of business
at 00 Xxxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx 00000-0000, XXX (hereinafter
referred to as "Presstek"); and Xxxxxxxxxxxx Druckmaschinen Aktiengesellschaft,
having an office and place of business at Xxxxxxxxxxxxxxxxx 00-00, XX-00000
Xxxxxxxxxx, Xxxxxxx (hereinafter "Heidelberg").
WHEREAS, Presstek and Heidelberg have disclosed to each other
and may need to disclose hereafter certain confidential and proprietary
information including trade secrets, know-how and other confidential technical
and business information;
NOW, THEREFORE, in consideration of the mutual promises herein
contained, the parties have agreed as follows:
1. Information communicated by one party (the "Disclosing
Party") to the other (the "Receiving Party") which the Disclosing Party
considers confidential shall, when communicated in documentary form or on
computer tape or disc, be marked as "Confidential." In the event information is
communicated orally or by transfer of non-documentary materials or by
observation during visits to the Disclosing Party's facilities, the confidential
nature of such information shall be confirmed to the Receiving Party in writing
within twenty days after such disclosure. "Confidential Information" shall mean
any and all information in any form with respect to the Disclosing Party's
technical or business matters which are designated by the Disclosing Party as
"confidential" in the manner set forth above.
2. The Receiving Party shall maintain all Confidential
Information of the Disclosing Party in strict confidence, shall not publish,
disseminate, disclose or otherwise make such Confidential Information available
to any third party without
the prior written consent of the Disclosing party (and then only within the
limits of such prior written consent), and shall not use such Confidential
Information for any purpose other than in furtherance of business arrangement
between the parties. The Receiving Party agrees to limit the dissemination of,
and access to, the Confidential Information to employees of the Receiving Party
(together with its legal and technical advisors) who have a "need to know" such
information, provided that such employees or advisors shall have entered into
appropriate confidentiality relationships with the Receiving Party so as to
ensure that the Receiving Party has the legal right to implement the terms and
conditions of this Confidentiality Agreement.
3. Notwithstanding paragraph 2 of this Confidentiality
Agreement, the obligations of confidentiality and non-use on the part of the
Receiving Party shall not apply to information which:
(a) the Receiving Party can establish was publicly
known or was known to the Receiving Party at the time of
disclosure;
(b) becomes publicly known subsequent to the time of
disclosure, provided that such public knowledge is not the
fault of, or the result of an improper disclosure by, the
Receiving Party;
(c) is subsequently received by the Receiving Party
without a confidentiality obligation from a third party which
has the right to disclose such information without a
confidentiality obligation; or
(d) is required to be disclosed by applicable law,
regulation or legal process (whether by subpoena, civil
investigative demand, or other similar process), provided that
if the Receiving Party is so requested to disclose any of the
Confidential Information the Receiving Party will in the first
instance take all reasonable steps to prevent public
disclosure of such Confidential Information and will provide
the Disclosing Party with prompt notice of any such request of
which the Receiving Party has knowledge so that the Disclosing
Party may seek a protective order
or other appropriate remedy, or may waive the Receiving
Party's compliance with the provisions of this Confidentiality
Agreement, as appropriate. Regardless of whether the
Disclosing Party waives compliance with the terms hereof for
the purpose of such disclosure, or whether a protective order
or other appropriate remedy is obtained, the Receiving Party
will furnish only that portion of the Confidential Information
which is required to be disclosed by such applicable law,
regulation or legal process.
4. At the request of the Disclosing Party at a time when such
Confidential Information is no longer needed in connection with the parties'
mutual business relations, all Confidential Information in any tangible form
received by the Receiving Party and all documents, notes, sketches, proto-types,
discs, tapes, records or other written materials prepared by the Receiving Party
containing or reflecting such Confidential Information or abstracts or summaries
thereof shall be promptly destroyed or returned to the Disclosing Party,
together with all copies thereof, except that one copy of any such materials may
be retained by outside counsel for the Receiving Party for archival purposes.
5. Nothing contained in this Confidentiality Agreement shall
be construed as requiring either party to disclose any specific information to
the other, nor as a grant by implication, estoppel or otherwise of any license
to make, have made, use or sell any product or as a license under any patent,
patent application, utility model, copyright, trade secret or any other
proprietary right.
6. This Confidentiality Agreement shall be in force from the
time it is signed by both parties for so long as the parties have a continuing
business relationship and for a period of [CONFIDENTIAL TREATMENT REQUESTED] /*/
years thereafter, but in no event less than [CONFIDENTIAL TREATMENT REQUESTED]
/*/ years from the date of this Confidentiality Agreement.
7. The parties acknowledge and agree that a breach of this
Confidentiality Agreement by either of them may cause irreparable damage to the
non-breaching party, that such damage would be difficult to measure, and
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
that such damage may not be adequately compensated by monetary damages.
Consequently, the parties agree that each shall be entitled to equitable relief,
including injunction and specific performance, in the event of any breach of the
provisions of this Confidentiality Agreement, in addition to all remedies
available to the parties at law or in equity.
8. This Confidentiality Agreement contains the entire
agreement between the parties concerning disclosure and use of Confidential
Information and cannot be altered except by an agreement between the parties in
writing. This Confidential Agreement shall be interpreted in accordance with the
laws of the State of New York, and all parties to this Confidentiality Agreement
hereby subject themselves to the jurisdiction of the Courts of New York or the
Courts of the United States sitting in New York to enforce the provisions of
this Confidentiality Agreement.
IN WITNESS WHEREOF, the parties have caused this
Confidentiality Agreement to be executed by their duly authorized
representatives.
Presstek, Inc.
By: /s/ Xxxxxx Xxxxxxx
--------------------------------------------------------
Title: CEO
-----------------------------------------------------
Date: 7/25/01
------------------------------------------------------
Xxxxxxxxxxxx Druckmaschinen Aktiengesellschaft
By: /s/ Wirnt Xxxxxxx
--------------------------------------------------------
Title: General Counsel
-----------------------------------------------------
Date: 7/26/01
------------------------------------------------------
