SUPPLY AGREEMENT by and between Vishay Precision Foil GmbH as Supplier and Vishay S.A., a _____________________, as Buyer Dated as of ________, 2010
Portions of this exhibit were omitted and
filed separately with the Secretary of the Securities and Exchange Commission
pursuant to an application for confidential treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934. Such portions are marked by [***].
Exhibit 10.18
by and between
Vishay Precision Foil
GmbH
as Supplier
and
Vishay S.A.,
a
_____________________,
as Buyer
Dated as of ________,
2010
This SUPPLY AGREEMENT (this “Agreement”) is made as of _____________, 2010 by and
between Vishay Precision Foil GmbH (“Supplier”), and Vishay S.A., a _____________,
(“Buyer”). Supplier and Buyer each may be referred to
herein as a “Party” and collectively, as the “Parties”.
WHEREAS, subject to the terms, conditions, commitments and undertakings
herein provided, Supplier is willing to manufacture and sell those products as
set forth on Exhibit A hereto (as the same may be modified from time
to time pursuant to the provisions hereof, the “Products”) to Buyer, and Buyer desires to purchase the
Products from Supplier, in such quantities as Buyer shall request , as provided
in this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Parties, intending to be
legally bound, agree as follows:
ARTICLE
I
DEFINITIONS
DEFINITIONS
For purposes of this Agreement, the following terms shall have the
meanings specified in this Article I:
“Affiliate” means, as applied to any Person, any other
Person that, directly or indirectly, controls, is controlled by, or is under
common control with that Person as of the date on which or at any time during
the period for when such determination is being made. For purposes of this
definition, “control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting securities or
other interests, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.
“Applicable Law” means any applicable law, statute, rule or
regulation of any Governmental
Authority, or any outstanding order, judgment, injunction, ruling or decree by
any Governmental Authority.
“Buyer” has the meaning set forth in the preamble of
this Agreement.
“Confidential Information” means all proprietary, design or operational
information, data or material including, without limitation: (a) specifications,
ideas and concepts for goods and services; (b) manufacturing specifications and
procedures; (c) design drawings and models; (d) materials and material
specifications; (e) quality assurance policies, procedures and specifications;
(f) customer, client, manufacturer and supplier information; (g) computer
software and derivatives thereof relating to design development or manufacture
of goods; (h) training materials and information; (i) inventions, devices, new
developments, methods and processes, whether patentable or unpatentable and
whether or not reduced to practice; (j) all other know-how, methodology,
procedures, techniques and Trade Secrets; (k) proprietary earnings reports and
forecasts; (l) proprietary macro-economic reports and forecasts; (m) proprietary
marketing, advertising and business plans, objectives and strategies; (n)
proprietary general market evaluations and surveys; (o) proprietary financing
and credit-related information; (p)
other copyrightable or patented works; (q) the terms of this Agreement; and (r)
all similar and related information in whatever form; in each case, of one party
which has been disclosed by Supplier or members of its Group on the one hand, or
Buyer or members of its Group, on the other hand, in written, oral (including by
recording), electronic, or visual form to, or otherwise has come into the
possession of, the other Group.
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“DDP” has the meaning and usage assigned to such
words in the incoterms rules published by the International Chamber of Commerce.
“Firm Order” means Buyer’s non-cancelable purchase order
for Products to be purchased by Buyer from Supplier pursuant to this Agreement
for delivery.
“Governmental Authority” means any U.S. or non-U.S. federal, state,
local, foreign or international court, arbitration or mediation tribunal,
government, department, commission, board, bureau, agency, official or other
regulatory, administrative or governmental authority.
“Group” means, with respect to any Person, each
Subsidiary of such Person and each other Person that is controlled directly or
indirectly by such Person.
“Intellectual Property” means all domestic and foreign patents and
patent applications, together with any continuations, continuations-in-part or
divisional applications thereof, and all patents issuing thereon (including
reissues, renewals and re-examinations of the foregoing); design patents;
invention disclosures; mask works; all domestic and foreign copyrights, whether
or not registered, together with all copyright applications and registrations
therefor; all domain names, together with any registrations therefor and any
goodwill relating thereto; all domestic and foreign trademarks, service marks,
trade names, and trade dress, in each case together with any applications and
registrations therefor and all goodwill relating thereto; all Trade Secrets,
commercial and technical information, know-how, proprietary or Confidential
Information, including engineering, production and other designs, notebooks,
processes, drawings, specifications, formulae, and technology; computer and
electronic data processing programs and software (object and source code), data
bases and documentation thereof; all inventions (whether or not patented); all
utility models; all registered designs, certificates of invention and all other
intellectual property under the laws of any country throughout the world.
“Last-Time Buy Order” has the meaning set forth in Section 3.5.
“Liability” means, with respect to any Person, any and
all losses, claims, charges, debts, demands, Actions, causes of action, suits,
damages, obligations, payments, costs and expenses, sums of money, accounts,
reckonings, bonds, specialties, indemnities and similar obligations, exoneration
covenants, obligations under contracts, guarantees, make whole agreements and
similar obligations, and other liabilities and requirements, including all
contractual obligations, whether absolute or contingent, matured or unmatured,
liquidated or unliquidated, accrued or unaccrued, known or unknown, joint or
several, whenever arising, and including those arising under any Applicable Law,
action, threatened or contemplated action (including the costs and expenses of
demands, assessments, judgments, settlements and compromises relating thereto
and attorneys’ fees and any and all costs and expenses, whatsoever reasonably
incurred in investigating, preparing or defending against any such actions or
threatened or contemplated actions) or order of any Governmental Authority or
any award of any arbitrator or mediator of any kind, and those arising under any
contract, in each case, whether or not recorded or reflected or otherwise
disclosed or required to be recorded or reflected or otherwise disclosed, on the
books and records or financial statements of any Person, including any Liability
for taxes.
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“Person” (whether or not initially capitalized) means
any corporation, limited liability company, partnership, firm, joint venture,
entity, natural person, trust, estate, unincorporated organization, association,
enterprise, government or political subdivision thereof, or Governmental
Authority.
“Product” has the meaning set forth in the preamble of
this Agreement.
“Product Warranty” has the meaning set forth in Section 5.1(a).
“Subsidiary” of any Person means a corporation or other
organization whether incorporated or unincorporated of which at least a majority
of the securities or interests having by the terms thereof ordinary voting power
to elect at least a majority of the board of directors or others performing
similar functions with respect to such corporation or other organization is
directly or indirectly owned or controlled by such Person or by any one or more
of its Subsidiaries, or by such Person and one or more of its Subsidiaries;
provided, however, that no Person that is not directly or
indirectly wholly-owned by any other Person shall be a Subsidiary of such other
Person unless such other Person controls, or has the right, power or ability to
control, that Person.
“Supplier” has the meaning set forth in the preamble of
this Agreement.
“Supplier’s Other Manufacturing
Obligations” means the
manufacturing obligations and commitments of Supplier to Persons other than
Buyer, including Supplier’s Affiliates.
“Specifications” means, with respect to any Product, the
design, composition, dimensions, other physical characteristics, chemical
characteristics, packaging, unit count and trade dress of such Product.
“Term” has the meaning set forth in Section 6.1.
“Trade Secrets” means information, including a formula,
program, device, method, technique, process or other Confidential Information
that derives independent economic value, actual or potential, from not being
generally known to the public or to other Persons who can obtain economic value
from its disclosure or use and is the subject of efforts that are reasonable,
under the circumstances, to maintain its secrecy.
“Wholly-Owned Subsidiary” of a Person means a Subsidiary of that
Person substantially all of whose voting securities and outstanding equity
interest are owned either directly or indirectly by such Person or one or more
of its Subsidiaries or by such Person and one or more of its Subsidiaries.
The terms “herein”, “hereof”, “hereunder” and like terms, unless otherwise specified,
shall be deemed to refer to this Agreement in its entirety and shall not be
limited to any particular section or
provision hereof. The term “including” as used herein shall be deemed to mean
“including, but not limited to.” The term “days” shall refer to calendar days unless
specified otherwise. References herein to “Articles”, “Sections” and “Exhibits” shall be deemed to mean Articles, Sections
of and Exhibits to this Agreement unless otherwise
specified.
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ARTICLE II
PURCHASE AND SALE OF PRODUCTS
PURCHASE AND SALE OF PRODUCTS
SECTION 2.1 Agreement to Purchase and Sell
Products. (a) During the
Term, Supplier hereby agrees to manufacture and sell to Buyer, and Buyer hereby
agrees to purchase and accept from Supplier, the Products in such quantities,
within such delivery deadlines and on such other terms as reasonably necessary
to enable Buyer to fill orders submitted by Vishay Precision Foil GmbH (“VPG
GmbH”) for finished RCK foil products under the Manufacturing Agreement dated as
of even date herewith between Buyer and VPG GmbH, as may be amended or
supplemented from time to time (the “Manufacturing Agreement”). Notwithstanding the foregoing, and in the
event that Buyer reasonably believes that Supplier’s manufacturing and delivery
schedule will cause Buyer to breach its obligations under the Manufacturing
Agreement, the parties agree to cooperate in good faith to avoid a breach of
either this Agreement or the Manufacturing Agreement.
(b) All Products to be sold to Buyer pursuant to
this Agreement shall be manufactured by Supplier or an Affiliate of Supplier;
provided, however, that Supplier may subcontract the
manufacture of any Product to a manufacturer that is not an Affiliate of
Supplier with Buyer’s prior written consent, which consent shall not be
unreasonably withheld, provided that any such subcontracting shall not
relieve Supplier of its obligations hereunder.
SECTION 2.2 Product Specifications and
Changes. Supplier shall
manufacture all Products according to the Specifications in effect as of the
date of this Agreement, with such changes or additions to the Specifications of
the Products as and to the extent necessary in order to enable Buyer to comply
with the Manufacturing Agreement or as mutually agreed between the Parties. All
other Products shall be manufactured with such Specifications as the Parties
shall agree.
SECTION 2.3 Supplier’s Supply
Obligations. Supplier
shall be obligated to manufacture and sell Products to Buyer, in accordance with
Buyer’s Firm Orders, to the extent of Supplier’s then existing manufacturing
capacity, taking into account Supplier’s Other Manufacturing Obligations;
provided, however, the Supplier shall give equal priority to
the orders of Buyer, on the one hand, and Supplier’s Other Manufacturing
Obligations, on the other.
SECTION 2.4 Product Changes. Supplier shall communicate any change in the
Specifications for any Product or its manufacture in accordance with Supplier’s
product change notification process. Buyer shall be deemed to have accepted such
change unless, within thirty (30) days after receipt of notice from Supplier,
Buyer informs Supplier that such change is not acceptable. If Buyer informs
Supplier that such change is not acceptable, Supplier may by notice to Buyer
either (x) continue to supply the Product in accordance with the original
Specifications and manufacturing procedures or (y) terminate this Agreement with
respect to such Product on a date specified by Supplier in a notice of
termination, which date shall not be earlier than the earlier of one (1) year from the date of
Buyer’s information that it does not accept the change proposed by Supplier,
subject to the right of the Buyer to submit a Last-Time Buy Order in accordance
with Section 3.5. Supplier shall not change the Specifications
if to do so would prevent Buyer from being able to comply with its obligations
under the Manufacturing Agreement.
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SECTION 2.5 Product Discontinuation. At any time Supplier may notify Buyer that
Supplier is discontinuing the manufacture and sale of a Product. Such
discontinuation shall take effect on a date specified by Supplier in a notice of
discontinuation, which date shall not be earlier than one (1) year from the date
of the notice of discontinuation; subject to the right of the Buyer to submit a
Last-Time Buy Order in accordance with Section 3.5. To the extent that a discontinuation by VAT
under this Section 2.5 causes Buyer to be unable to satisfy its obligations
under the Manufacturing Agreement, Buyer shall be released from any claims of
breach of this Agreement caused by such discontinuation.
SECTION 2.6 Consultation and Support. At either Party’s reasonable request, the
Parties shall meet and discuss the nature, quality and level of supply services
contemplated by this Agreement. In addition, Supplier will make available on a
commercially reasonable basis and at commercially reasonable times qualified
personnel to provide knowledgeable support service with respect to the Products.
The Parties shall negotiate in good faith with respect to any fees and other
charges incurred by Supplier in providing other than routine product support.
ARTICLE
III
ORDERS AND PAYMENT
ORDERS AND PAYMENT
SECTION 3.1 Purchase Orders. (a) Buyer may place a Firm Order for the
Products with Supplier at any time and from time to time.
(b) Each Firm Order shall specify (i) number of
units of the Product to be purchased and (ii) the requested delivery date,
provided that Buyer shall request a delivery date with a lead delivery time that
is customary for the particular Product, unless otherwise agreed upon by the
Parties. Supplier agrees to provide Buyer prompt notice if it knows it cannot
meet a requested delivery date.
(c) If Buyer requires a Product on an emergency
basis in order to comply with its obligations under the Manufacturing Agreement
and so informs Supplier, and Supplier has the Product available in its
uncommitted inventory, Supplier agrees to use reasonable commercial efforts to
fill the emergency order as promptly as practicable.
SECTION 3.2 Shipment.
(a) The Products sold to Buyer shall be delivered
DDP Buyer’s factory unless otherwise agreed by the Parties.
(b) Supplier shall package all Products so as to
protect them from loss or damage during shipment, in conformity with good
commercial practice, the Specifications and Applicable Law. Buyer shall be
responsible, at its own cost and expense, for the shipment (including, among
other fees, costs and expenses, transit and casualty insurance and third party
fees) of all processed materials by
Buyer. Supplier shall cooperate with Buyer in assembling and coordinating
shipments, as reasonably requested by Buyer.
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SECTION 3.3 Prices. Pricing for the Products shall be as set
forth on Exhibit A, as such Exhibit may be modified from time to
time by agreement of the Parties. At least thirty (30) days prior to the
beginning of each calendar year, the Parties shall negotiate in good faith
changes to the pricing of the Products to be applicable in the ensuing year. The
Parties will assure that any changes in the prices are coordinated with pricing
changes under the Manufacturing Agreement.
SECTION 3.4 Payment Terms. Unless otherwise agreed to by the Parties in
writing, Buyer shall make payment separately for each Firm Order. Buyer shall
pay the net amount of all invoice amounts within sixty (60) days of the date of
Supplier’s invoice unless the terms of Supplier’s invoice permits later payment
or allows for prepayment with a discount. Invoices shall not be sent earlier
than the date on which the Products related thereto are delivered to Buyer.
SECTION 3.5 Last-Time Buy Order.
(a) Buyer shall have a right to place a written
last-time Firm Order for a Product (a “Last-Time Buy Order”) at such time and in such quantities as may
be required in order to comply with a last-time buy order under the
Manufacturing Agreement. The right of the Buyer to submit a Last-Time Buy Order
shall entitle Buyer to purchase the Products at the price in effect for the
products as of the time of Buyer’s exercise of such right.
(b) A Last-Time Buy Order shall specify (i) number
of units of the Product to be purchased and (ii) the requested delivery date or
dates for such units. If Supplier informs Buyer that it cannot honor the
requested delivery dates because of capacity restraints or otherwise, the
Parties shall negotiate in good faith with respect to delivery dates mutually
acceptable to Supplier and Buyer.
(c) The Parties hereby agree to use commercially
reasonable efforts to coordinate forecasting and ordering during the period
between the date the Last-Time Buy Order is delivered to Supplier and the final
delivery date to allow for regular supply of Products during such
period.
ARTICLE
IV
CONFIDENTIALITY
CONFIDENTIALITY
SECTION 4.1 Supplier and Buyer shall hold and shall cause each of their
respective affiliates, directors, officers, employees, agents, consultants,
advisors and other representatives to hold, in strict confidence and not to
disclose or release without the prior written consent of the other party, any
and all Confidential Information, material or data of the other party that comes
into its possession in connection with the performance by the parties of their
rights and obligations under this Agreement. The provisions of Section 4.5 of
the Master Separation and Distribution Agreement between Vishay Intertechnology,
Inc. and the Buyer shall govern, mutatis mutandis,
the confidentiality obligations of the parties under this Section.
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ARTICLE V
PRODUCT WARRANTY; LIMITATION OF LIABILITY
PRODUCT WARRANTY; LIMITATION OF LIABILITY
SECTION 5.1 Product Warranty; Merchantability
Warranty. (a) Supplier
warrants to Buyer that the Products shall, at the time of delivery to Buyer in
accordance with Section 3.2: (i) conform to the Specifications therefor,
as provided in Section 2.2; (ii) be free from material defects; (iii) be
manufactured in accordance with good manufacturing practice and Applicable Law;
and (iv) and be suitable for use for manufacturing the finished RCK products
under the Manufacturing Agreement (such warranty being referred to as the
“Product Warranty”).
(b) EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NO WARRANTIES,
OTHER THAN THE PRODUCT WARRANTY, ARE EXPRESSED OR IMPLIED IN RESPECT OF THE
PRODUCTS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE.
SECTION 5.2 Defective or Non-Conforming
Products. (a) Claims by
Buyer relating to the quantity of or damage to any Product or the failure of any
Product to conform to its Specifications must be made within one (1) year of
receipt of such Product and must be in writing, specifying in reasonable detail
the nature and basis of the claim and citing relevant control or lot numbers or
other information to enable identification of the Product in question.
Supplier’s liability to Buyer for damages for any such claim shall be limited to
a refund for the price of the defective Product plus shipping costs or, at
Buyer’s option, prompt replacement thereof with a Product that complies with the
Product Warranty. Such refund and shipping costs or a replacement shall
constitute Supplier’s sole and exclusive liability for such claims. For the
avoidance of doubt, nothing shall limit the obligations of Supplier to Buyer in
respect of third party claims against Buyer arising from the failure of any
Product to conform to its Specifications.
(b) Any notifications to either Party pursuant to
this Section 5.2 shall be subject to the confidentiality
provisions of Article V above.
SECTION 5.3 Indemnification. (a) Subject to Section 5.4, Supplier shall indemnify and hold Buyer
harmless from and against any Liability, including reasonable attorney’s fees
and disbursements, arising out of any third party claim for death, injury or
damage to property resulting from (i) Supplier’s breach of this Agreement; or
(ii) any claim that a Product purchased from Supplier infringes any intellectual
property right of a third party.
(b) Buyer shall indemnify and hold harmless
Supplier from and against any Liability, including reasonable attorneys’ fees
and disbursements, arising out of any third party claim for death, injury or
damage to property resulting from use of any of the Products based upon (i)
Buyer’s breach of this Agreement; or (ii) any change in condition of the
Products caused by Buyer.
(c) Any Party seeking indemnification pursuant to
this Section 5.3 shall promptly notify the other Party of the
claim as to which indemnification is sought, shall afford the other Party, at
the other Party’s sole expense, the opportunity to defend or settle the claim
(in which case the indemnifying Party shall not be responsible for the
attorneys’ fees of the indemnified Party with respect such claim) and shall
cooperate to the extent reasonably requested by the other Party in the
investigation and defense of such claim; provided, however, that any settlement of any such claim that
would adversely affect the rights of the indemnified Party shall require the
written approval of such indemnified Party; and provided further that an indemnified Party shall not settle
any such claim without the written approval of the indemnifying Party.
(d) The foregoing indemnification obligations
shall survive any termination or expiration of this Agreement, in whole or in
part, or the termination of this Agreement.
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SECTION 5.4 Limitation of Liability. In no event shall any Party be liable for
any special, consequential, indirect, collateral, incidental or punitive damages
or lost profits or failure to realize expected savings or other commercial or
economic loss of any kind, arising out of any breach of this Agreement,
including breach of the Product Warranty, or any other obligations of any Party
hereunder, or any use of the Products, and each Party hereby knowingly and
expressly waives any claims or rights with respect thereto; provided, however, that in the event a Party is required to pay
to a third-party claimant any special, consequential, indirect, collateral,
incidental or punitive damages or lost profits or failure to realize expected
savings or other commercial or economic loss on any claim with respect to which
such Party is indemnified by the other Party pursuant to this Agreement, such
Party shall be entitled to indemnification from the other Party with respect to
such third-party special, consequential, indirect, collateral, incidental or
punitive damages or lost profits or failure to realize expected savings or other
commercial or economic loss to the extent resulting from the indemnifiable acts
or omissions of the other Party.
SECTION 5.5 Insurance. Each of the Parties shall maintain general
liability insurance covering their activities under this Agreement in accordance
with prudent and customary commercial practices, in such amounts as shall be
agreed upon from time to time by the Parties.
ARTICLE VI
TERM OF AGREEMENT; RENEWAL TERM; TERMINATION
TERM OF AGREEMENT; RENEWAL TERM; TERMINATION
SECTION 6.1 Term of Agreement. This Agreement shall remain in full force
and effect for so long as Vishay S.A. is obligated to manufacture finished RCK
products under the Manufacturing Agreement (the “Term”).
SECTION 6.2 Rights Upon Termination. Following a termination of this Agreement,
all further rights and obligations of the Parties under this Agreement shall
terminate. Notwithstanding the
foregoing, the termination of this Agreement shall not affect the rights and
obligations of the Parties arising prior to such expiration or termination; and
provided further that the Parties shall not be relieved of (i)
their respective obligations to pay monies due or which become due as of or
subsequent to the date of expiration or termination, and (ii) any other
respective obligations under this Agreement which specifically survive or are to
be performed after the date of such expiration or termination, including the
provisions of Article V and 6.3. Any Firm Order, including a Last-Time Buy
Order, submitted prior to the expiration or termination of this Agreement shall
be filled by Supplier pursuant to the terms hereof even if the delivery date is
after expiration or termination.
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ARTICLE
VII
DISPUTE RESOLUTION
DISPUTE RESOLUTION
SECTION 7.1 The terms and provisions of Article VIII of the Master
Separation and Distribution Agreement between VSH and VPG, relating to the
procedures for resolution of any disputes between the parties, shall apply to
all disputes, controversies or claims (whether sounding in contract, tort or
otherwise) that may arise out of or relate to or arise under or in connection
with this Agreement, or the transactions contemplated hereby, mutatis mutandis.
ARTICLE
VIII
MISCELLANEOUS
MISCELLANEOUS
SECTION 8.1 Assignment. This Agreement and the rights and
obligations of a Party hereunder shall be assignable or delegable, in whole or
in part, (i) by Supplier without the consent of Buyer, to a Wholly-Owned
Subsidiary of Supplier that succeeds to the conduct of the foil resistor
business responsible for supplying the Products; (ii) by Buyer without the
consent of Supplier, to a Wholly-Owned Subsidiary of Buyer or to any Person that
succeeds to the obligations of Buyer under the Manufacturing Agreement; or (iii)
by either Party, to any Person who is not a Wholly-Owned Subsidiary of a Party
only with the prior written consent of the other Party; provided, however, that no such assignment shall relieve the
assigning Party of liability for its obligations hereunder. The following
actions shall not be deemed an assignment of this Agreement: (1) assignment or
transfer of the stock of a Party, including by way of a merger, consolidation,
or other form of reorganization in which outstanding shares of a Party are
exchanged for securities, or (2) any transaction effected primarily for the
purpose of (A) changing a Party’s state of incorporation or (B) reorganizing a
Party into a holding company structure such that, as a result of any such
transaction, such Party becomes a Wholly-Owned Subsidiary of a holding company
owned by the holders of such Party’s securities immediately prior to such
transaction. Any attempted assignment other than as provided herein shall be
void. The provisions of this Agreement shall be binding upon, and shall inure to
the benefit of, the successors and permitted assigns of the
Parties.
SECTION 8.2 Force Majeure. The Parties shall not be liable for the
failure or delay in performing any obligation under this Agreement (except
pursuant to Section 6.4) if and to the extent such failure or delay
is due to (i) acts of God; (ii) weather, fire or explosion; (iii) war, invasion,
riot or other civil unrest; (iv) governmental laws, orders, restrictions,
actions, embargoes or blockages; (v) action by any regulatory authority which
prohibits the manufacture, sale or distribution of the Products, except to the
extent due to Supplier’s breach of its obligations hereunder; (vi) regional,
national or foreign emergency; (vii) injunction, strikes, lockouts, labor
trouble or other industrial disturbances; (viii) shortage of adequate fuel,
power, materials, or transportation facilities; or (ix) any other event which is
beyond the reasonable control of the affected Party; provided, however, that the Party affected shall promptly
notify the other Party of the force majeure condition and shall exert its
reasonable commercial efforts to eliminate, cure or overcome any such causes and
to resume performance of its obligations as soon as possible.
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SECTION 8.3 Intellectual Property. All Intellectual Property owned or created
by a Party shall remain its sole and exclusive property, and the other Party
shall not acquire any rights therein by reason of this Agreement.
SECTION 8.4 Entire Agreement. This Agreement and the Exhibits hereto
constitute the entire agreement between the Parties with respect to the subject
matter hereof and thereof and supersede all previous agreements, negotiations,
discussions, understandings, writings, commitments and conversations between the
parties with respect to such subject matter. No agreements or understandings
exist between the parties other than those set forth or referred to herein or
therein. If any provision of this Agreement or the application thereof to any
Party or circumstance shall be declared void, illegal or unenforceable, the
remainder of this Agreement shall be valid and enforceable to the extent
permitted by Applicable Law. In such event, the Parties shall use their best
efforts to replace the invalid or unenforceable provision with a provision that,
to the extent permitted by Applicable Law, achieves the purposes intended under
the invalid or unenforceable provision.
SECTION 8.5 Governing Law. This Agreement and the legal relations
between the parties shall be governed by and construed in accordance with the
laws of the State of New York, without regard to the conflict of laws rules
thereof to the extent such rules would require the application of the law of
another jurisdiction.
SECTION 8.6 Consent to Jurisdiction. Subject to the provisions of Article VII, each of the Parties irrevocably submits to
the jurisdiction of the federal and state courts located in Philadelphia,
Pennsylvania and the City of New York, Borough of Manhattan for the purposes of
any suit, action or other proceeding to compel arbitration, for the enforcement
of any arbitration award or for specific performance or other equitable relief
pursuant to Section 8.16. Each of the parties further agrees that
service of process, summons or other document by U.S. registered mail to such
parties address as provided in Section 8.10 shall be effective service of process for any
action, suit or other proceeding with respect to any matters for which it has
submitted to jurisdiction pursuant to this Section 8.6. Each of the parties irrevocably waives any
objection to venue in the federal and state courts located in Philadelphia,
Pennsylvania and the City of New York, Borough of Manhattan of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby for which it has submitted to jurisdiction pursuant to this Section 8.6, and waives any claim that any such action,
suit or proceeding brought in any such court has been brought in an inconvenient
forum.
SECTION 8.7 Independent Contractor. Nothing contained in this Agreement shall
constitute a Party as a partner, employee or agent of the other Party, nor shall
any Party hold itself out as such. Neither Party shall have the right or
authority to incur, assume or create, in writing or otherwise, any warranty,
Liability or other obligation of any kind, express or implied, in the name or on
behalf of the other Party, and each Party is and shall remain an independent
contractor, responsible for its own actions. Except as otherwise explicitly
provided herein, each Party shall be responsible for its own expenses incidental
to its performance of this Agreement.
SECTION 8.8 Set-Off. The obligation of Buyer to pay the purchase
price for Products shall be unconditional, except as provided in this Agreement,
and shall not be subject to any defense, setoff, counterclaim or similar right
against Supplier or any of its Affiliates that could be asserted by Buyer or any of its Affiliates
under any other contract, agreement, arrangement or understanding or otherwise
under Applicable Law.
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SECTION 8.9 Waivers. No claim or right arising out of or relating
to a breach of any provision of this Agreement can be discharged in whole or in
part by a waiver or renunciation of the claim or right unless the waiver or
renunciation is supported by consideration and is in writing signed by the
aggrieved Party. Any failure by any Party to enforce at any time any provision
under this Agreement shall not be considered a waiver of that Party’s right
thereafter to enforce each and every provision of this Agreement.
SECTION 8.10 Notices. All notices, demands and other
communications required to be given to a Party hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered, sent by a
nationally recognized overnight courier, transmitted by facsimile, or mailed by
registered or certified mail (postage prepaid, return receipt requested) to such
Party at the relevant street address or facsimile number set forth below (or at
such other street address or facsimile number as such Party may designate from
time to time by written notice in accordance with this provision):
| If to Buyer, to: | |
| Vishay S.A. | |
| c/o Vishay Intertechnology, Inc. | |
| 00 Xxxxxxxxx Xxxxxx | |
| Xxxxxxx, XX 00000-0000 | |
| Attention: Xx. Xxxx X. Xxxxxxxx | |
| Telephone: 000-000-0000 | |
| Facsimile: 000-000-0000 | |
| with a copy to: | |
| Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx LLP | |
| 0000 Xxxxxx xx xxx Xxxxxxxx | |
| Xxx Xxxx, XX 00000 | |
| Attention: Xxxxxx X. Xxxxxxxx, Esq. | |
| Telephone: 000-000-0000 | |
| Facsimile: 000-000-0000 | |
| If to Supplier, to: | |
| Vishay Precision Foil GmbH | |
| c/o Vishay Precision Group, Inc. | |
| 0 Xxxxx Xxxxxx Xxxxxxx | |
| Xxxxxxx, XX 00000-0000 | |
| Attention: Xxxxxxx X. Xxxxxx | |
| Telephone: (000)-000-0000 | |
| Facsimile: (000)-000-0000 | |
| with a copy to: | |
| Xxxxxx Xxxxxxxx LLP | |
| 3000 Two Xxxxx Square | |
| Eighteenth and Arch Streets | |
| Philadelphia, Pennsylvania 19103-2799 | |
| Attention: Xxxxx Xxxxxxx, Esq. | |
| Telephone: 000-000-0000 | |
| Facsimile: 000-000-0000 |
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Any notice, demand or
other communication hereunder shall be deemed given upon the first to occur of:
(i) the fifth (5th) day after deposit thereof, postage prepaid
and addressed correctly, in a receptacle under the control of the United States
Postal Service; (ii) transmittal by facsimile transmission to a receiver or
other device under the control of the party to whom notice is being given; (iii)
actual delivery to or receipt by the party to whom notice is being given or an
employee or agent thereof; or (iv) one (1) day after delivery to an overnight
carrier.
SECTION 8.11 Headings. The headings contained herein are included
for convenience of reference only and do not constitute a part of this
Agreement.
SECTION 8.12 Counterparts. This Agreement may be executed in one or
more counterparts, each of which when so executed and delivered or transmitted
by facsimile, e-mail or other electronic means, shall be deemed to be an
original and all of which taken together shall constitute but one and the same
instrument. A facsimile or electronic signature is deemed an original signature
for all purposes under this Agreement.
SECTION 8.13 Severability. If any provision of this Agreement or the
application thereof to any Person or circumstance is determined by a court of
competent jurisdiction to be invalid, void or unenforceable, the remaining
provisions hereof, or the application of such provision to Persons or
circumstances or in jurisdictions other than those as to which it has been held
invalid or unenforceable, shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby, so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner adverse to any party. Upon such determination, the Parties shall
negotiate in good faith in an effort to agree upon such a suitable and equitable
provision to effect the original intent of the Parties.
SECTION 8.14 Waiver of Default. (a) Any term or provision of this Agreement
may be waived, or the time for its performance may be extended, by the party or
the parties entitled to the benefit thereof. Any such waiver shall be validly
and sufficiently given for the purposes of this Agreement if, as to any party,
it is in writing signed by an authorized representative of such party.
(b) Waiver by any party of any default by the
other party of any provision of this Agreement shall not be construed to be a
waiver by the waiving party of any subsequent or other default, nor shall it in
any way affect the validity of this Agreement or any party hereof or prejudice
the rights of the other party thereafter to enforce each and ever such
provision. No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
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SECTION 8.15 Amendments. No provisions of this Agreement shall be
deemed amended, modified or supplemented by any Party, unless such amendment,
supplement or modification is in writing and signed by the authorized
representative of the Party against whom it is sought to enforce such amendment,
supplement or modification.
SECTION 8.16 Specific Performance. The Parties agree that the remedy at law for
any breach of this Agreement may be inadequate, and that, as between Supplier
and Buyer, any Party by whom this Agreement is enforceable shall be entitled to
seek temporary, preliminary or permanent injunctive or other equitable relief
with respect to the specific enforcement or performance of this Agreement. Such
Party may, in its sole discretion, apply to a court of competent jurisdiction
for such injunctive or other equitable relief as such court may deem just and
proper in order to enforce this Agreement as between Supplier and Buyer, or the
members of their respective Groups, or prevent any violation hereof, and, to the
extent permitted by Applicable Law, as between Supplier and Buyer, each Party
waives any objection to the imposition of such relief.
SECTION 8.17 Waiver of jury trial. Subject to Article VII, each of the Parties hereby waives to the
fullest extent permitted by Applicable Law any right it may have to a trial by
jury with respect to any court proceeding directly or indirectly arising out of
and permitted under or in connection with this Agreement or the transactions
contemplated hereby. Each of the Parties hereby (a) certifies that no
representative, agent or attorney of any other party has represented, expressly
or otherwise, that such other party would not, in the event of litigation, seek
to enforce the foregoing waiver and (b) acknowledges that it has been induced to
enter into this agreement and the transactions contemplated by this agreement,
as applicable, by, among other things, the mutual waivers and certifications in
this Section 8.17.
[SIGNATURE PAGE FOLLOWS]
- 14 -
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their respective duly authorized representatives as of the date first written
above.
| SUPPLIER: | |||
| VISHAY PRECISION FOIL GMBH | |||
| By: | |||
| Name: | |||
| Title: | |||
| BUYER: | |||
| VISHAY S.A. | |||
| By: | |||
| Name: | |||
| Title: | |||
- 15 -
EXHIBIT A
[***]
[***]
Portions of this exhibit were omitted and
filed separately with the Secretary of the Securities and Exchange Commission
pursuant to an application for confidential treatment filed with the Securities
and Exchange Commission pursuant to Rule 24b-2 under the Securities Exchange Act
of 1934. Such portions are marked by [***].
