EXHIBIT 10.13
EXCLUSIVE DISTRIBUTION AGREEMENT
--------------------------------
THIS EXCLUSIVE DISTRIBUTION AGREEMENT (hereinafter this "Agreement") is
entered into as of the 16/th/ day of September, 1999 by and between DAIWA SEIKO,
INC., a Japanese corporation with offices at 00-00, Xxxxxxx 0-xxxxx,
Xxxxxxxxxxxxx Xxxx, Xxxxx, Xxxxx ("Daiwa") and Carbite Inc., a United States
company organized and existing under the laws of the state of California and
having its principal office at 0000 Xxxxx Xxxxx Xx., Xxxxx000, Xxx Xxxxx, XX
00000, U.S.A. ("Carbite").
WHEREAS:
(1) Daiwa manufactures golf clubs or has golf clubs manufactured by its
Authorized Suppliers (as defined below) and wishes to arrange for the
distribution of such products in the Territory (as defined below) and for such
purpose wishes Carbite to act as the exclusive distributor in the Territory of
such products manufactured by Daiwa or its Authorized Suppliers;
(2) In addition to acting as exclusive distributor in the Territory of the
Daiwa Original Products (as defined below), Carbite wishes to assemble or have
assembled or otherwise procure golf clubs and certain other products bearing the
trademarks of Daiwa for distribution within the Territory, and for this purpose
Daiwa and Carbite have entered into a separate trademark license agreement dated
as of the 16/th/ day of September, 1999 (the "License Agreement");
(3) Daiwa and Carbite wish to enter into a written agreement setting out
the terms and conditions under which Carbite shall act as exclusive distributor
of the Daiwa Original Products and Daiwa Licensed Products (as defined below) in
the Territory.
NOW IT IS HEREBY AGREED as follows:
1. Definitions
The following terms shall have the following meanings in this Agreement:
(a) The "Authorized Suppliers" shall mean (i) Daiwa's subsidiaries and
affiliates; and (ii) other manufacturers which are authorized by Daiwa
to manufacture the Daiwa Original Products for distribution in the
Territory.
(b) "Qualified Manufacturers" shall mean those manufacturers chosen by
Distributor to produce Daiwa Licensed Products for Carbite with
Daiwa's approval, which shall not be withheld by Daiwa unreasonably.
(c) The "Daiwa Products" shall mean any golf clubs, parts, golf bags, golf
gloves, golf wear and accessories bearing any of the Trademarks and
shall consist of the following:
(i) "Daiwa Original Products", which shall mean those products
manufactured by Daiwa or an Authorized Supplier; and
(ii) "Daiwa Licensed Products", which shall mean any other products
produced by Qualified Manufacturers in accordance with the
License Agreement.
(d) The "Territory" shall mean the United States of America.
(e) The "Trademarks" shall mean the trademarks in the form listed in
the License Agreement, which are owned by Daiwa and registered in the
Territory.
2. Grant of Distribution Right/Right of First Refusal
(a) Daiwa hereby appoints Carbite, and Carbite hereby agrees to act, as
the exclusive distributor of the Daiwa Products in the Territory.
(b) Carbite agrees to purchase Daiwa Original Products only from Daiwa and
not from any other party. Carbite will use its best efforts to promote and sell
Daiwa Original Products and Daiwa Licensed Products. In consideration of the
fact, however, that Carbite has been distributing and desires to continue to
distribute world wide its own golf products under the Carbite and other brand
names owned by Carbite, Daiwa consents to Carbite's continuing to distribute
such golf products in such manner, provided Carbite fulfills the terms of this
Agreement. However, Carbite is not to be permitted to distribute or promote, as
a distributor or otherwise, the golf products of any other company which is or
could reasonably be expected to be in competition with Daiwa in golf products
and/or fishing tackle products in the Territory, without obtaining the prior
written consent of Daiwa.
(c) Daiwa and its Authorized Suppliers shall not offer the Daiwa Products
for sale to any person within the Territory other than (i) Carbite and (ii), or
from outside the Territory by use of telecommunication or other means,
individual consumers, or to any such person outside the Territory for
distribution within the Territory, without obtaining the prior written consent
of Carbite.
(d) The rights granted to Carbite hereunder shall not give the Carbite a
right to have the Daiwa Products distributed by its subsidiaries, if any, or by
any other agents in the Territory.
(e) Carbite shall not establish, maintain or utilize any branch or depot
for distribution of the Daiwa Products outside the Territory.
(f) Daiwa hereby grants Carbite the right of first refusal for an
exclusive distributorship of Daiwa Products in Canada, if and when such
distributorship can be legally granted by Daiwa.
3. Minimum Purchase Obligation
(a) Carbite shall undertake to purchase the Daiwa Products having an
aggregate invoiced amount of at least fifty per cent (50%) of the Target Amount
(as defined below) each year (the "Minimum Purchase Obligation").
The target amount of sales of the Daiwa Products by Carbite (the "Target
Amount") for each 12 months from September 16/th/ to September 15/th/ of the
following year (a "Contract Year") shall be as follows:
Contract Year Target Amount
------------- -------------
September 16, 1999-
September 15, 2000 US $ 3,500,000
September 16, 2000-
September 15, 2001 US $ 10,000,000
September 16, 2001-
September 15, 2002 US $ 15,000,000
September 16, 2002-
September 15, 2003 US $ 20,000,000
September 16, 2003-
September 15, 2004 US $ 25,000,000
(b) Within six (6) months of the end of the term of this Agreement or any
extension thereof, Daiwa and Carbite shall discuss and negotiate the Target
Amounts and Minimum Purchase Obligation for the following term.
(c) For the purposes of this Article, amounts in excess of those stated
above may not be carried forward and credited against the Minimum Purchase
Obligation for the
succeeding Contract Year. Daiwa Products are considered purchased when invoiced
by Daiwa and/or by any Qualified Manufacturer.
(d) For the purposes of this Article, the above Target Amounts and Minimum
Purchase Obligation shall be calculated in United States dollars. When currency
conversion is necessary for determining amounts payable in Japanese Yen, the
rate of \105.00 = US$1 shall be applied. Should the TTB official exchange rate
as announced in New York, New York, U.S.A. fall below \85.00 = US$1 or rise
above \125.00 = US$1 for two (2) consecutive months, the parties shall re-
negotiate in good faith the above Target Amounts and Minimum Purchase Obligation
to make an equitable adjustment.
(e) For the purposes of this Article, the term "Daiwa Original Products"
shall include "Daiwa Original Parts" as defined in Article 1(a)(i) of the
License Agreement.
(f) Daiwa Original Products and parts offered to Carbite at FOB price by
Daiwa shall include a 6% royalty. Therefore, Daiwa agrees to credit such 6% of
FOB price toward the Minimum Royalty stated in Article 4(a) of the License
Agreement for the relevant Contract Year.
4. Other Obligations of Carbite
(a) Carbite shall exert its best efforts to promote and extend sales of the
Daiwa Products throughout the Territory. For such purposes, Carbite shall spend
at least ten per cent (10%) of net sales of all Daiwa Products sold by Carbite
on advertising and promotion of the Daiwa Products in the Territory.
(b) Carbite shall provide at its expense sufficient facilities in the
Territory for after-sales services of the Daiwa Products to satisfy reasonable
requirements for such services by the retail purchasers of the Daiwa Products.
(c) Three (3) months prior to the end of each Contract Year, beginning May
31,
2000, Carbite shall submit to Daiwa for its comments the following reports and
forecasts on the format indicated by Daiwa:
(i) A general report outlining the promotional program for the
Daiwa Products and a general budget on a monthly basis therefor
for the next Contract Year and a forecast of such program for
the two (2) succeeding consecutive Contract Years. Such
outlines are a forecast only and are not to be used for actual
projections of anticipated results; and
(ii) An itemized outline of sales estimates for the Daiwa Products
for the next Contract Year, with a breakdown on a monthly basis
by anticipated sources (where possible) of supply, referring to
the factories of Daiwa or any Authorized Suppliers and or
Qualified Manufacturers. Such an outline is to be a forecast
only and is not to be used for actual projections of
anticipated results. Such outlines for the first Contract Year
shall be submitted by Carbite as soon as practicable, but not
later than December 31, 1999.
(d) Carbite shall, thirty (30) days prior to the end of each quarter of
each Contract Year, beginning October 31, 1999, provide Daiwa with a market
survey report of general market conditions for the Daiwa Products in the
Territory and the following reports, together with such other information as the
parties may agree to be essential for the formation and implementation of
production and marketing policies:
(i) An itemized list of the inventory of the Daiwa Products at the
end of the preceding quarter of Carbite; and
(ii) Itemized sales records showing the quantity of Daiwa Products
sold.
(e) Carbite has the right to solicit sales and develop business by way of
sales of the Daiwa Products to retailers in the Territory, including golf
specialty stores, department
store golf shops, sporting goods specialists, golf mail-order businesses, on-
course golf shops and golf mass marketers (notwithstanding any retail outlet
that Carbite itself may operate). Carbite has the right to also solicit sales to
consumers directly via television, the Internet, direct mail order or catalog
sales.
(f) Carbite shall, on arrival of any consignment of the Daiwa Products at
its premises, promptly store them in an appropriate manner as specified by Daiwa
and distribute the Daiwa Products in a manner which will ensure that they reach
the customer in good condition.
(g) Carbite shall pay promptly, without any deduction or set-off not
expressly provided in this Agreement, all sums due to Daiwa in respect of the
supply of the Daiwa Products in accordance with this Agreement or any other sum
whatsoever due under this Agreement.
(h) Carbite shall conduct its business in accordance with the highest
business standards, and shall not conduct itself in a manner which will or may
reflect adversely upon the "Daiwa" name, the Trademarks or Daiwa's business
integrity or goodwill.
5. Advertising and Promotion; Development of Daiwa Products
(a) Carbite shall be responsible at its own expense for all advertising and
promotion of the Daiwa Products in the Territory and, as provided in Article
4(a) hereof, shall spend at least ten per cent (10%) of net sales of all Daiwa
Products sold by Carbite on advertising and promotion of the Daiwa Products in
the Territory. Carbite may consult with Daiwa as to any advertising and
promotional activities, and Daiwa may provide Carbite with such reasonable
technical information as is necessary for that purpose.
(b) Both parties agree to cooperate towards the technical development of
new Daiwa Products.
6. Orders, Shipment and Payment of Daiwa Original Products
(a) Daiwa Original Products ordered by Carbite from Daiwa shall be
delivered FOB. by Daiwa to Carbite.
(b) Standard payment terms for Daiwa Original Products shall be the FOB.
price payable by irrevocable letter of credit at sight. However, Daiwa hereby
agrees to special payment terms by irrevocable letter of credit in favor of
Daiwa to be issued by Carbite's bank for payment 90 days after the xxxx of
lading date, provided that Carbite agrees to bear the interest for such 90 day
period. The applicable interest rate shall be agreed upon by the parties
separately here from in advance for each semi-annual Contract Year. Accordingly,
Carbite shall arrange sixty (60) days prior to the proposed shipment date for
each order of Daiwa Products either (i) such letter of credit at sight in such
amount in U.S. dollars as is sufficient to cover the FOB. price of the relevant
order, or (ii) such letter of credit payable 90 days after the xxxx of lading
date in such amount in U.S. dollars as is sufficient to cover the FOB. price of
the relevant order plus interest thereon for the 90 days calculated at the
agreed-upon interest rate.
(c) Other terms of sale of the Daiwa Original Products to Carbite pursuant
to this Agreement shall be on such terms as are contained in the xxxx of lading
or as are mutually agreed-upon and determined by the parties hereto from time to
time.
7. Title
Title to each shipment of Daiwa Original Products shall pass from Daiwa to
Carbite after delivery of the relevant xxxx of lading issued by the carrier for
shipment by sea or by air, as the case may be, to Carbite.
8. Trade Name; Trademarks; Intellectual Property Rights
(a) Carbite hereby acknowledges that the "Daiwa" name and the rights of
ownership therein, and goodwill attached thereto, belong exclusively to Daiwa.
Carbite therefore agrees to refrain from using "Daiwa" or any other name similar
thereto and clarify in its operating manuals, catalogues and all other
advertisements, etc. that Carbite is an independent company without any equity
relationship with Daiwa.
(b) Carbite further hereby acknowledges that the Trademarks and the rights
of ownership therein, and goodwill attached thereto, belong exclusively to
Daiwa. Carbite shall not claim any rights for any derivatives, improvements or
modifications of the Trademarks. Daiwa reserves all rights in the Trademarks
not expressly granted to Carbite in this Agreement or the License Agreement.
(c) Carbite shall not impose or have imposed on the Daiwa Products, or use
in any way in connection with the sale of the Daiwa Products, any trademarks or
trade names other than those approved in advance by Daiwa; provided, however,
that this shall not prevent Carbite from indicating on the Daiwa Products, or in
connection with the sale of the Daiwa Products, that they are distributed and
serviced by Carbite.
(d) Carbite shall use during the period of this Agreement only such
literature, logos, trademarks and trade names of Daiwa, and only in such manner
as previously agreed in writing by Daiwa in the normal course of business in
connection with distribution of the Daiwa Products in the Territory. Any other
use must be approved in advance in writing by Daiwa.
(e) To the best of Daiwa's knowledge, the Trademarks and the Daiwa Original
Products supplied by Daiwa do not infringe the intellectual property rights of
any third party. Should any claim, demand or suit be made or filed against
Carbite by a third party claiming that the Trademarks and/or the Daiwa Original
Products infringe its intellectual property rights, Daiwa and Carbite shall re-
negotiate the Target Purchase Amounts and Minimum Purchase Obligation (as
defined above) set forth in Article 3. Daiwa further agrees, in the
case of such a claim, to co-operate with Carbite in the defense of any such
claim; provided, however, that Carbite shall not make any admission of
liability, shall give Daiwa immediate notice of any claim, shall co-operate in
the defense of such claim, and shall allow Daiwa, if it so elects, to handle,
settle and assume any liability for such claim in such manner as Daiwa deems
proper. Daiwa further agrees to indemnify, defend and hold harmless Carbite
against any and all losses, claims, damages and expenses, including reasonable
attorney fees and defense costs, to which Carbite may become subject as a result
of any such claim, provided such claim pertains exclusively to Daiwa Original
Products, but then only to the extent that the aggregate of such losses, damages
and expenses does not exceed the aggregate of the payments Daiwa shall have
received from Carbite under the License Agreement. In the event that the Daiwa
Original Products are adjudged to infringe the patent rights of a third party,
and Daiwa does not obtain a license under such patent, Carbite may terminate
this Agreement forthwith.
9. Defective Daiwa Original Products; After-Sales Service; Indemnification
(a) Daiwa will, free of charge, repair or replace or cause to be repaired
or replaced such Daiwa Original Products as shall be determined by Carbite upon
consultation and agreement with Daiwa to be defective in design or manufacture,
provided that notice of such defect is received by Daiwa within 6 months of the
shipping date appearing on the xxxx of lading relating to the Daiwa Original
Products. Carbite will be responsible for the replacement or repair of any
Daiwa Licensed Products at its own expense. A small percentage (less than 5% on
sold quantities) of other defective Daiwa Original Products and repairs shall be
for Carbite's account.
(b) For the term of this Agreement and for three (3) years following
termination hereof, Carbite shall be responsible for and shall bear the entire
expense of all after-sales service for the Daiwa Products and shall maintain
such workshops and service facilities, employ such qualified personnel and
maintain such stock of spare parts as are necessary to keep the Daiwa Products
in serviceable condition, deal with customer complaints and honor
warranties to purchasers of the Daiwa Products. During such time, Daiwa will
make best efforts to provide spare parts to Carbite for the repair of any Daiwa
Original Products.
(c) In addition to those obligations set forth in paragraph (b) above, with
respect to Daiwa Original Products which may be discontinued, Carbite agrees to
maintain such stock of spare parts for five (5) years after discontinuation as
are necessary to keep such discontinued Daiwa Original Products in serviceable
condition, deal with customer complaints and honor warranties to purchasers of
such discontinued Daiwa Original Products. Daiwa will exert its best efforts to
provide spare parts to Carbite for the repair of any such discontinued Daiwa
Original Products.
(d) Carbite shall make no representations or warranties as to the quality,
specifications or performance of Daiwa Original Products or parts thereof
purchased from Daiwa other than those representations and warranties which have
been made by Daiwa to Carbite.
(e) Daiwa shall not be liable for any delay in delivery or non-delivery of
any Daiwa Original Products which are manufactured by any third party on behalf
of Daiwa for any reason which is outside Daiwa's control (including, but not
limited to, labor disputes, delay in transport or the default of any sub-
contractor) and if any delay occurs, then the period for delivery shall be
extended by such period (not limited to the length of the delay) as may be
required in order to deliver the Daiwa Original Products.
(f) In recognition of the possibility that a claim, demand or suit may be
made or filed against Daiwa and/or Carbite as a result of any defect, actual or
claimed, in the Daiwa Original Products, and that under the theory or law of
product liability or under the product liability statutes of states or countries
within the Territory, Daiwa and/or Carbite may be held liable therefor, Daiwa
shall obtain and shall maintain in full force and effect, for the term of this
Agreement and for three years thereafter, comprehensive Daiwa Original Products
liability insurance coverage for an amount it deems proper. Daiwa shall notify
Carbite from time to time of the limit of such coverage obtained by Daiwa so
that Carbite, if it so elects, may obtain additional coverage for its own
benefit. Should any claim, demand or suit be
made or filed against Carbite by a third party as a result of any defect, actual
or claimed, in the Daiwa Original Products, the same provisions as set forth in
Article 8(e) with respect to the handling and expenses thereof shall apply with
respect to such claim, demand or suit.
10. Stock Options for Daiwa
As further compensation to the amount reflected in the Minimum Royalty
referred to in Article 4 (a) of the License Agreement, the Carbite hereby grants
Daiwa stock options for 300,000 shares of common stock of Carbite at the closing
market price on the date of the signatures of the Distribution Agreement. These
options must be exercised by August 31, 2002, and shall expire upon termination
of this Distribution Agreement, if such termination occurs prior to such date.
11. Term and Termination; Loss of Exclusivity
(a) This Agreement shall be effective for five (5) years from the date
first above written until August 31, 2004. Carbite shall be given the option to
extend for an additional 5-year term if Carbite has met all the obligations and
the conditions of the Exclusive Distribution Agreement and the Trademark License
Agreement . Carbite must execute such an option four (4) months prior to the
end of the initial period unless previously terminated in accordance with the
terms hereof. The Minimum Purchase Obligation and Minimum Royalty for each
extended Contract Year must be reviewed and mutually agreed upon prior to six
(6) months before the termination of the first contract period, but in no event
may the Minimum Purchase Obligation and Minimum Royalty be increased by more
than 20% over that applicable to the previous year as a baseline for the
contract extensions. If no agreement is reached four (4) months prior to the
end of the initial period, then this Agreement will be terminated at August 31,
2004. If and when the term of this Agreement is extended beyond such date, this
Agreement shall thereafter be extended automatically from year to year unless
notice of intention to terminate in accordance with this Agreement is given by
either party to the other not less than six (6) months prior to the end of the
initial extended period or any other extension thereof, or unless previously
terminated in accordance with the terms hereof. Provided, however, that in the
absence of an agreement by the parties otherwise, the Target
Amount and Minimum Purchase Obligation applicable to such extended annual period
shall be those applicable to the last year of the preceding term of this
Agreement.
(b) This Agreement shall automatically terminate immediately in the event
of the
(i) insolvency or bankruptcy of either party;
(ii) termination of the License Agreement;
(iii) withdrawal of Carbite from the business of manufacturing,
selling or distributing Daiwa Products;
(iv) laying of criminal charges against either party;
(v) transfer of the control of Carbite to a direct golf and or
fishing tackle competitor of Daiwa without the prior consent
of Daiwa; or
(vi) if any of the Daiwa Original Products are definitively
adjudged to infringe the patent rights of a third party.
(c) If Carbite shall fail to meet the Minimum Purchase Obligation for two
(2) consecutive Contract Years, Carbite shall no longer be entitled to act as
exclusive distributor of the Daiwa Products.
(d) Unless otherwise provided herein, if at any time either party fails to
comply with any of its obligations under this Agreement, and if such defaulting
party has not remedied such default within ninety (90) days after the date of
the receipt by such party from the other party of notice of default giving
reasonable particulars of the alleged default, then the party not in default may
terminate this Agreement by notice to that effect at any time after the
aforesaid period of ninety (90) days.
12. Consequences of Termination
If this Agreement is terminated for any reason:
(a) Any Daiwa Products purchased by Carbite hereunder may be sold by
Carbite
within six (6) months after the date of such termination to customers,
retailers, distributors, wholesalers, etc. of its own choosing in the Territory.
(b) If so directed in writing by Daiwa, any remaining stock not sold by
Carbite within six (6) months after the date of termination shall be resold to
Daiwa or any person designated by Daiwa at prices and on conditions as follows:
(i) For current Daiwa Original Products or parts thereof (i.e.
listed in the catalog current at the time of termination), one
hundred percent (100%) of the FOB price plus import duties
thereon, customs clearance expenses and inland transportation
costs (the "Landed Cost");
(ii) For discontinued Daiwa Original Products or parts thereof,
thirty percent (30%) of the Landed Cost;
(iii) Daiwa Original Products or parts thereof more than five (5)
years after their discontinuation, ten percent (10%) of the
Landed Cost;
(iv) For Daiwa Original Products or parts thereof between five (5)
and seven (7) years after their discontinuation, five percent
(5%) of the Landed Cost;
(v) For any excessive stock of parts of Daiwa Original Products
kept for after-sales service by Carbite, Daiwa shall not
repurchase such parts from Carbite.
For the purposes of the above paragraph, an expert representative from
Daiwa shall determine what quantity of stock of parts of Daiwa
Original Products kept for after-sales service would be "excessive"
and the determination of such expert shall be considered final.
(c) Carbite shall not make any financial demands upon Daiwa, seeking
compensation for its services performed hereunder or refund of expenses incurred
by Carbite in providing service facilities, promotional activities and
advertising or any other cause.
(d) Neither party shall be released from any debts or liabilities which
have accrued under this Agreement or the License Agreement at the time of
termination and which are outstanding at the time of the termination of this
Agreement.
13. Relationship of the Parties
Nothing contained in this Agreement shall constitute any relationship of
partnership, joint venture or principal and agent between the parties and
Carbite has no power, express or implied, to bind Daiwa in any matter. No
manufacturing rights, licensing rights, or rights to use any patent or trademark
are granted by this Agreement, except such as are specifically provided herein.
14. Governing Law and Arbitration
This Agreement and each sale of Daiwa Original Products hereunder by Daiwa
to Carbite shall be governed by the laws of Japan. Any dispute, if it cannot be
amicably settled by consultation and negotiation, shall be settled by
arbitration. Unless the parties otherwise agree in writing, in the event that
Carbite is the claimant, the arbitration shall take place in Tokyo, Japan, under
the rules of the Japan Commercial Arbitration Association. In the event that
Daiwa is the claimant, arbitration shall take place in San Diego, California,
under the rules of the American Arbitration Association. The language of
arbitration shall be English. The outcome of such arbitration shall be final
and without any right of appeal.
15. Notices
All notices, requests and other communications hereunder shall be in the
English language in writing, and shall be deemed to have been duly given if
delivered by hand with proof of receipt at the time of receipt; if communicated
by facsimile, cable or similar electronic means to the facsimile number or cable
identification number as previously
provided by each party to the other, at the time that receipt thereof has been
confirmed by return electronic communication or signal that the message has been
clearly received; or if mailed, ten (10) days after dispatched by registered
airmail, postage prepaid, from any post office in Japan or the United States of
America, as the case may be, addressed as follows:
If to Daiwa: 00-00, Xxxxxxx 0-xxxxx
Xxxxxxxxxxxxx Xxxx
Xxxxx, Xxxxx
Attention: Xx. Xxxxxxxxx Dekura
If to Carbite: 0000 Xxxxx Xxxxx Xx., Xxxxx000,
Xxx Xxxxx, XX 00000
U.S.A.
Attention: Xx. Xxxx Xxxxxxxxxxx
Either party may change its facsimile number, cable identification number
or address by a notice given to the other party in the manner set forth above.
16. Warranties of the Parties
Each party warrants to the other that it has the full right and power to
enter into this Agreement and that the performance of this Agreement will not
violate any rule, regulation, law or other governmental restriction to which it
is bound and will not violate any agreement between that party and any third
party.
17. No Waiver
No waiver of any right or remedy in respect of any occurrence or event on
any one occasion will be deemed a waiver of such right or remedy in respect of
such occurrence or
event on any subsequent occasion.
18. Force Majeure
If either party is prevented from or delayed in performing any obligation
of this Agreement as a result of circumstances beyond its control, including but
not limited to Acts or God, governmental order or restriction, war, war-like
conditions, hostilities, sanctions, mobilizations, blockage, embargo, detention,
revolution, riot, strike, lockout, epidemic, fire or flood, such obligation
shall be suspended for so long and to such an extent as may be justified in the
circumstances and thereafter such obligation shall be performed pursuant to the
terms of this Agreement.
19. Language and Counterparts
This Agreement may be executed in multiple counterparts in the English
language, and each counterpart shall be deemed an original of this Agreement.
20. Entire Agreement
This Agreement, in combination with the Trademark License Agreement,
constitutes the entire agreement between the parties hereto and supersedes all
previous agreements and negotiations, commitments, communications and contracts
in respect thereof. This Agreement may be amended only in writing signed by the
parties hereto.
21. Headings
The headings of articles used in this Agreement are inserted for
convenience of reference only and shall not affect the interpretation of the
respective articles of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above, and this Agreement shall be deemed dated as of such date.
DAIWA SEIKO, INC.
By: __________________________________
Its: __________________________________
Carbite Inc.
By: __________________________________
Its: __________________________________
