EX-10.1 2 dex101.htm TERMINATION AND RELEASE AGREEMENT TERMINATION AND RELEASE AGREEMENT
Exhibit 10.1
TERMINATION AND RELEASE AGREEMENT
THIS TERMINATION AND RELEASE AGREEMENT (this βAgreementβ) is made and entered into as of this 30th day of June, 2007, by and between Seiko Instruments Inc., a corporation organized and existing under the laws of Japan, with offices at 0, Xxxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx-xxx, Xxxxx 261-8507, Japan (βSIIβ), and Franklin Electronic Publishers, Inc., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, U.S.A, with offices at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, X.X.X. (βFEPβ).
(SII and FEP are referred to herein individually as a βPartyβ and collectively as the βPartiesβ.)
1. | DEFINITIONS AND INTERPRETATION |
βAgreementβ is defined in the preamble hereto.
βContinuing Agreementsβ shall mean, collectively, (i) that certain Settlement Agreement and General Release dated as of October 2, 2002, among SII, FEP and Seiko Instruments U.S.A., Inc. (the βSettlement Agreementβ), (ii) that certain Cross License Agreement dated as of October 2, 2002, between SII and FEP, as amended by that certain Amendment Agreement dated as of January 7, 2003, between SII and FEP (the βCross Licenseβ), (iii) that certain Technology Transfer Evaluation and Licensing Agreement dated
as of June 1, 2003, between SII and FEP (the βChip Licenseβ), and (iv) that certain Trademark and Copyright Sublicense Agreement dated as of October 6, 2005, between SII and FEP, as amended by that certain Amendment to Trademark and Copyright Sublicense Agreement dated as of February 16, 2006, between SII and FEP (the βSudoku Licenseβ).
βFEPβ is defined in the preamble hereto.
βNew Agreementsβ shall mean, collectively, the following agreements of even date herewith between SII and FEP, each of which is being executed and delivered concurrent with this Agreement in the form and substance set forth, respectively, in Exhibits A, B, and C which are attached hereto and made a part hereof: (i) that certain Short-Term Supply and Services Agreement (the βSTSSAβ) as set forth in Exhibit A; (ii) that certain Supply and Distribution Agreement (the βAustralia Agreementβ) as set forth in Exhibit B; and (iii) that certain License Agreement (the βNew Licenseβ) as set forth in Exhibit C.
βPartyβ and βPartiesβ are defined in the preamble hereto.
βSIIβ is defined in the preamble hereto.
βSubject Agreementsβ is defined in the recitals hereto.
βSurviving Provisionsβ is defined in Section 2.4(a).
βTermination Dateβ shall mean the date on which SII completes its payment obligation to FEP in a timely manner as set forth in Section 2.3 herein.
2. | TERMINATION OF AGREEMENTS |
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PNC Bank, NA
East Brunswick, NJ
Account #8009779117
Beneficiary: Franklin Electronic Publishers, Inc.
ABA #000000000
The parties acknowledge and agree that in the case in which SII fails to complete its payment obligation in a timely manner as set forth in this Section 2.3, this Agreement shall be null and void.
2.4 Acknowledgements. Each Party hereby irrevocably agrees, confirms and acknowledges that:
(a) notwithstanding the terminations that may be effected hereby, each of the provisions of any one of the Subject Agreements which by the express terms of the applicable Subject Agreement are to survive any termination or expiration of such Subject Agreement shall survive and continue in effect in accordance with such terms, subject to any agreed modifications or superseding provisions that may be set forth with specificity in one or more of the New Agreements or in this Agreement; provided, however, that the Parties acknowledge and agree that any and all indemnification provisions set forth in the CTTA shall survive the termination thereof (collectively the βSurviving Provisionsβ) ; and
(b) this Agreement shall have no effect whatsoever on either Partyβs rights or obligations under any of the Continuing Agreements, each of which shall continue in full force and effect in accordance with its terms, subject to such amendments, modifications, or strikings, if any, as may be specifically agreed between the Parties pursuant to this Agreement, the New Agreements, or otherwise in writing.
3. | MUTUAL RELEASES |
3.1 Mutual Releases.
(a) Effective as of the Termination Date, SII, for itself and each of its subsidiaries, affiliates, officers, directors, agents, attorneys, sub-distributors, successors and assigns, hereby fully, irrevocably and unconditionally releases, acquits and forever discharges FEP and its subsidiaries, affiliates, officers, directors, agents, attorneys, sub-distributors (and their respective officers, directors, attorneys, and agents), and their successors and assigns of and from any and all claims, liabilities, obligations, demands, causes of action, damages, costs, losses, debts and expenses, including any claims for court costs or attorneysβ fees, of whatever kind or nature, whether known or unknown, asserted or raised, suspected or claimed,
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whether fixed, contingent, liquidated, unliquidated, disputed or undisputed, presently existing or arising in the future, and whether arising in contract, tort, under statute, at law or in equity, that arise out of, or are in any way related to each and all of the Subject Agreements; and
(b) Effective as of the Termination Date, FEP, for itself and each of its subsidiaries, affiliates, officers, directors, agents, attorneys, sub-distributors, successors and assigns, hereby fully, irrevocably and unconditionally releases, acquits and forever discharges SII and its subsidiaries, affiliates, officers, directors, agents, attorneys, sub-distributors (and their respective officers, directors, attorneys, and agents), and their successors and assigns of and from any and all claims, liabilities, obligations, demands, causes of action, damages, costs, losses, debts and expenses, including any claims for court costs or attorneysβ fees, of whatever kind or nature, whether known or unknown, asserted or raised, suspected or claimed, whether fixed, contingent, liquidated, unliquidated, disputed or undisputed, presently existing or arising in the future, and whether arising in contract, tort, under statute, at law or in equity, that arise out of, or are in any way related to each and all of the Subject Agreements.
(c) Each of SII and FEP, being familiar with and fully aware of California Civil Code Β§ 1542, which provides that:
βA GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTORβ,
hereby freely and voluntarily waives any and all rights or benefits that it has or may come to have pursuant to said code section, as well as pursuant to any statutes or common law principles of similar effect.
3.2 Releases Unconditional. For the avoidance of doubt, the Parties hereby agree, confirm and acknowledge that the termination of the Subject Agreements effected as of the Termination Date hereby and the mutual releases granted hereunder as of the Termination Date are irrevocable and unconditional. Without limiting the generality of the foregoing, the Parties further agree, confirm and acknowledge that no breach or default under, or termination of, any of the New Agreements or Continuing Agreements, or failure to perform any of the Surviving Provisions, shall in any event affect the continued validity or enforceability of this Agreement or otherwise constitute grounds for challenging, invalidating, rescinding, avoiding or otherwise denying full effect to the provisions hereof or for unwinding the termination of the Subject Agreements effected hereby as of the Termination Date.
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4. | REPRESENTATIONS AND WARRANTIES |
(a) SII is a corporation duly incorporated and validly existing under the laws of Japan, with full power and authority to own its assets and conduct its business as presently conducted and as proposed to be conducted.
(b) SII has full corporate power and authority to enter into this Agreement and to exercise its rights and perform its obligations hereunder. All corporate actions and procedures necessary to authorize its execution, delivery and performance of this Agreement have been taken.
(c) All acts, conditions and things (including the obtaining of any third party or governmental consents) which are necessary or prudent to be done, fulfilled, obtained or performed by SII in connection with its execution, delivery or performance of this Agreement have been done, fulfilled and/or performed, are in full force and effect and are not subject to any pending or threatened proceedings.
(d) This Agreement has been duly executed and delivered by SIIβs authorized representative and, assuming the due authorization, execution and delivery hereof by FEP, constitutes and will at all times constitute the legal, valid and binding obligation of SII enforceable against SII in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditorβs rights generally and to general principles of equity.
(e) SIIβs execution, delivery and performance of this Agreement will not result in contravention of (i) its constitutive documents, (ii) any contractual provision to which it is subject or by which its assets are bound, (iii) any laws, rules or regulations applicable to it or its property, or (iv) any judgment, injunction, order or decree binding on it or any of its assets.
(a) FEP is a corporation duly incorporated and validly existing under the laws of the Commonwealth of Pennsylvania, U.S.A., with full power and authority to own its assets and conduct its business as presently conducted and as proposed to be conducted.
(b) FEP has full corporate power and authority to enter into this Agreement and to exercise its rights and perform its obligations hereunder. All corporate actions and procedures necessary to authorize its execution, delivery and performance of this Agreement have been taken.
(c) All acts, conditions and things (including the obtaining of any third party or governmental consents) which are necessary or prudent to be done, fulfilled, obtained or performed by FEP in connection with its execution, delivery or performance of this Agreement have been done, fulfilled and/or performed, are in full force and effect and are not subject to any pending or threatened proceedings.
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(d) This Agreement has been duly executed and delivered by FEPβs authorized representative and, assuming the due authorization, execution and delivery hereof by SII, constitutes and will at all times constitute the legal, valid and binding obligation of FEP enforceable against FEP in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditorβs rights generally and to general principles of equity.
(e) FEPβs execution, delivery and performance of this Agreement will not result in contravention of (i) its constitutive documents, (ii) any contractual provision to which it is subject or by which its assets are bound, (iii) any laws, rules or regulations applicable to it or its property, or (iv) any judgment, injunction, order or decree binding on it or any of its assets.
5. | MISCELLANEOUS PROVISIONS |
(a) which becomes generally available to the public other than as a result of a wrongful disclosure by such Party;
(b) which becomes available to such Party from other sources not known by such Party to be bound by a confidentiality obligation; or
(c) to the extent required by law. SII understands and acknowledges that this Agreement and certain of the terms of this Agreement have been disclosed by FEP in connection with the execution of the MOU as defined herein and that additional disclosure will be made by FEP in connection with the execution and delivery of this Agreement.
(a) Absent an agreement between the Parties to the contrary, each Party to the arbitration shall appoint one (1) arbitrator and the two (2) arbitrators so selected shall nominate the third arbitrator. If the two (2) arbitrators nominated by the Parties cannot agree on a third arbitrator, the third arbitrator shall be appointed in accordance with the Rules.
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(b) The arbitration proceedings shall take place in San Francisco, California, U.S.A.
(c) The arbitration shall be conducted in the English language, provided that either Party may submit testimony or documentary evidence in Japanese (with English translations to be provided at the request and cost of the other Party).
(d) The award rendered by the arbitral tribunal shall be binding upon the Parties and may include award of costs, including reasonably attorneysβ fees and disbursements. Judgment on the award may be entered in any court having jurisdiction thereof.
(e) At the request of either Party, the arbitral tribunal may issue any order for interim relief, including injunctive relief, it deems necessary. The arbitral tribunal shall have the power, inter alia, to order that neither Party take any action inconsistent with this Agreement during the pendency of the arbitral proceedings. Each Party shall also have the right to seek injunctive or other equitable relief from any court of competent jurisdiction, which right shall not be deemed incompatible with, or a waiver of, the agreement to arbitrate set forth in this Section 5.3.
If to SII:
Seiko Instruments Inc.
8, Xxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx-xxx, Xxxxx 000-0000
Xxxxx
Telephone:
Facsimile:
Attention:
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If to FEP:
Franklin Electronic Publishers, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
X.X.X.
Telephone: 000 000 0000x0000
Facsimile: 000 0000000
Attention: Xxxxx Xxxxxx, President and CEO
cc: Xxxxxx Xxxxxx, CFO
Such notices shall be deemed to have been received, (i) if delivered in person or by courier, upon actual receipt by the intended recipient, (ii) if sent by facsimile, transmission confirmed, on the date of transmission unless transmitted after normal business hours at the place of receipt, in which case on the following business day at the place of receipt, or (iii) if mailed, upon the date of first attempted delivery.
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[signature pages follow]
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SEIKO INSTRUMENTS INC. | ||
By: | /s/ Xxxxx Xxxx | |
Name: | Xxxxx Xxxx | |
Title: | Division Manager | |
FRANKLIN ELECTRONIC PUBLISHERS, INC. | ||
By: | /s/ Xxxxx Xxxxxx | |
Name: | Xxxxx Xxxxxx | |
Title: | CEO |
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SCHEDULE 1
Subject Agreements
1. Distribution Agreement dated as of January 7, 2003, as amended by Exhibit A to the Omnibus Development and Distribution Agreement dated as of June 25, 2004 (βUS Agreementβ)
2. Omnibus Development and Distribution Agreement dated as of June 25, 2004, as amended by that certain Amendment dated as of August 23, 2006 (βOmnibus Agreementβ)
3. Cross Technology Transfer Agreement dated as of June 25, 2004, as amended by (i) Amendment dated as of January 12, 2005; (ii) Addendum to the First Amendment dated as of September 9, 2005;(iii) Second Amendment dated as of November 30, 2005; (iv) Addendum to the Second Amendment dated as of August 23, 2006, (v) Second Addendum to the Second Amendment dated as of August 23, 2006; (vi) Third Amendment dated as of September 22, 2005; and (vii) Addendum to the Third Amendment dated as of June 7, 2006 (the βCTTAβ)
4. Trademark License Agreement dated as of June 25, 2004 (the βTLAβ)
SHORT-TERM SUPPLY AND SERVICES AGREEMENT
THIS SHORT-TERM SUPPLY AND SERVICES AGREEMENT (this βAgreementβ) is made and entered into as of this 30th day of June, 2007 by and between Seiko Instruments Inc., a corporation organized and existing under the laws of Japan, with offices at 0, Xxxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx-xxx, Xxxxx 261-8507, Japan (βSIIβ), and Franklin Electronic Publishers, Inc., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, U.S.A, with offices at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, X.X.X. (βFEPβ).
(SII and FEP are referred to herein individually as a βPartyβ and collectively as the βPartiesβ.)
A. WHEREAS, concurrent with the execution and delivery of this Agreement, SII and FEP entered into that certain Termination and Release Agreement of even date herewith (the βTermination Agreementβ) providing for the termination of the Subject Agreements (as defined therein) on the Termination Date as defined therein.
1. | DEFINITIONS AND INTERPRETATION AND EFFECTIVE DATE |
βAgreementβ is defined in the preamble hereto.
βAncillary Materialsβ shall mean, with respect to any SII Product or FEP Product, packaging materials, manuals and other ancillary materials for such product.
βFEPβ is defined in the preamble hereto.
β**** indicates where a confidential portion has been omitted and filed separately with the Commission.β
βFEP Productsβ shall mean ****
βFinal German Delivery Dateβ ****
βFinal German Order Dateβ ****
βFinal US Delivery Dateβ ****
βFinal US Order Dateβ ****
βGerman Toolingβ shall mean tooling for SII Products for German market **** which are owned by SII and used by **** and its subcontractor(s) at their manufacturing facilities for manufacturing such products.
βPartyβ and βPartiesβ are defined in the preamble hereto.
βSII Productsβ shall mean, (i) with respect to the Americas market, those products of SII listed in Schedule A hereto, and (ii) with respect to the German market, those products of SII listed in Schedule B hereto.
βSIIβ is defined in the preamble hereto.
βTermination Agreementβ is defined in the recitals hereto.
2. | SHORT-TERM PRODUCT SUPPLY |
2.1 SII Products for the Americas Market. Notwithstanding the termination of the US Agreement or any provision to the contrary contained therein (specifically including Article 17 thereof), after the Termination Date SII agrees to continue to supply SII Products for the Americas market in accordance with the following (capitalized terms used in this Section 2.1 that are not listed in Section 1.1 above shall have the respective meanings assigned to them in the US Agreement):
(a) ****
β**** indicates where a confidential portion has been omitted and filed separately with the Commission.β
(b) ****
(c) ****
(d) Purchase prices for the SII Products shall be as set forth in Schedule A hereto.
(e) For each SII Product purchased from SII and distributed in the Americas by FEP pursuant to this Section 2.1, FEP shall provide a product warranty of a scope consistent with the terms of Section 12.1 of the US Agreement.
(a) ****
(b) ****
(c) ****
(d) Purchase prices for the SII Products shall be as set forth in Schedule B hereto.
(e) For each SII Product purchased from SII and distributed in the Germany by FEP pursuant to this Section 2.2, FEP shall provide a product warranty of a scope consistent with the terms of Section 10.1 of Exhibit F to the Omnibus Agreement.
2.3 Use of Tooling for German SII Products. SII shall not object to the use of the German Tooling and to the continued manufacture by **** for FEP of the SII Products or derivatives thereof for a period **** for purposes of manufacturing handheld electronic reference products in FEPβs name for sale in the Germany, provided that a request therefore has been submitted in writing by FEP on or prior to ****. Notwithstanding anything contained herein to the contrary, FEP shall, in no event, use the trademarks and logos owned or controlled by SII and the trademark βSEIKOβ in relation to SII Products or derivatives thereof (including manuals thereof) to be manufactured by using the German Tooling. At the request and cost of FEP, SII shall render such reasonable non-financial assistance as may be appropriate to secure any third party consents required for such use of the German Tooling and manufacture. In respect of use of the German Tooling as contemplated in this Section 2.3, FEP hereby agrees and acknowledges that:
(a) SII makes no representation or warranty of any kind regarding the German Tooling or the use thereof, including any warranties of merchantability, fitness for a particular purpose or non-infringement of the proprietary rights of any third party;
(b) SII shall have no liability whatsoever for or on account of use of the German Tooling or any products manufactured by or for FEP utilizing the German Tooling;
(c) SII shall have no obligation to provide any technical assistance or support in the use of the German Tooling; and
(d) Notwithstanding FEPβs rights under this Section 2.3, SII shall at all times have priority of use of the German Tooling.
3. | AFTER-SALES SERVICE AND CUSTOMER CARE |
(a) in the case of SII, FEP Products sold or distributed by or for SII pursuant to its distribution rights under the Omnibus Agreement or this Agreement; and
(b) in the case of FEP, all of the products of SII, including, without limitation, SII Products, sold or distributed by or for FEP pursuant to its distribution rights under the US Agreement, the Omnibus Agreement or this Agreement.
Such out-of-warranty services shall in principle be provided by each Party consistent with its current practices, provided that SII and FEP shall each have the right to make such adjustments to its service fees and other service terms as it may deem reasonably necessary or appropriate from time to time in light of prevailing market conditions and other commercial realities.
(a) SII shall provide to FEP, on or before the Final US Delivery Date, the Ancillary Materials for SII Products for Americas market in the quantity agreed to by the Parties.
β**** indicates where a confidential portion has been omitted and filed separately with the Commission.β
(b) SII shall provide to FEP, on or before the Final German Delivery Date, the Ancillary Materials for SII Products for German market in the quantity agreed to by the Parties.
(c) FEP shall provide to SII, on or before the date agreed to by the Parties, the Ancillary Materials for FEP Products for the Japanese market in the quantity agreed to by the Parties.
4. | DISPOSITION OF INVENTORY |
(a) FEP shall have the right to continue to sell SII Products in the Americas for a period of ****;
(b) FEP shall have the right to continue to sell SII Products in Germany for a period of ****; and
(c) SII shall have the right to continue to sell the FEP Products in Japan until the end of ****.
Upon the expiration of a Partyβs sell-off rights in a given territory, such Party shall, in accordance with the once applicable provisions of the US Agreement or the Omnibus Agreement, and except to the extent specifically permitted pursuant to that certain Supply and Distribution Agreement of even date herewith between SII and FEP, cease in such territory to promote, market or advertise, or hold itself out as an authorized distributor of, in the case of FEP, SII Products and, in the case of SII, FEP Products.
(a) For so long as, and only for so long as, SII is permitted to continue to sell FEP Products pursuant to Section 4.1 above, SII shall continue to have and enjoy the right to use the trademarks and logos of FEP on the terms set forth in the Trademark License Agreement (except, for the avoidance of doubt, any terms requiring payment of royalties or other amounts by SII).
(b) For so long as, and only for so long as, FEP is permitted to sell SII Products pursuant to Section 4.1 above, FEP shall continue to have and enjoy the right to use the trademarks and logos of SII and the trademark βSEIKOβ on the once applicable terms set forth in the US Agreement and the Omnibus Agreement.
5. | OUTSTANDING OBLIGATIONS AND OTHER SURVIVING PROVISIONS |
6. | REPRESENTATIONS AND WARRANTIES |
(a) SII is a corporation duly incorporated and validly existing under the laws of Japan, with full power and authority to own its assets and conduct its business as presently conducted and as proposed to be conducted.
(b) SII has full corporate power and authority to enter into this Agreement and to exercise its rights and perform its obligations hereunder. All corporate actions and procedures necessary to authorize its execution, delivery and performance of this Agreement have been taken.
(c) All acts, conditions and things (including the obtaining of any third party or governmental consents) which are necessary or prudent to be done, fulfilled, obtained or performed by SII in connection with its execution, delivery or performance of this Agreement have been done, fulfilled and/or performed, are in full force and effect and are not subject to any pending or threatened proceedings.
(d) This Agreement has been duly executed and delivered by SIIβs authorized representative and, assuming the due authorization, execution and delivery hereof by FEP, constitutes and will at all times constitute the legal, valid and binding obligation of SII enforceable against SII in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditorβs rights generally and to general principles of equity.
(e) SIIβs execution, delivery and performance of this Agreement will not result in contravention of (i) its constitutive documents, (ii) any contractual provision to which it is subject or by which its assets are bound, (iii) any laws, rules or regulations applicable to it or its property, or (iv) any judgment, injunction, order or decree binding on it or any of its assets.
(a) FEP is a corporation duly incorporated and validly existing under the laws of the Commonwealth of Pennsylvania, U.S.A., with full power and authority to own its assets and conduct its business as presently conducted and as proposed to be conducted.
(b) FEP has full corporate power and authority to enter into this Agreement and to exercise its rights and perform its obligations hereunder. All corporate actions and procedures necessary to authorize its execution, delivery and performance of this Agreement have been taken.
(c) All acts, conditions and things (including the obtaining of any third party or governmental consents) which are necessary or prudent to be done, fulfilled, obtained or performed by FEP in connection with its execution, delivery or performance of this Agreement have been done, fulfilled and/or performed, are in full force and effect and are not subject to any pending or threatened proceedings.
(d) This Agreement has been duly executed and delivered by FEPβs authorized representative and, assuming the due authorization, execution and delivery hereof by SII, constitutes and will at all times constitute the legal, valid and binding obligation of FEP enforceable against FEP in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditorβs rights generally and to general principles of equity.
(e) FEPβs execution, delivery and performance of this Agreement will not result in contravention of (i) its constitutive documents, (ii) any contractual provision to which it is subject or by which its assets are bound, (iii) any laws, rules or regulations applicable to it or its property, or (iv) any judgment, injunction, order or decree binding on it or any of its assets.
7. | MISCELLANEOUS PROVISIONS |
(a) which becomes generally available to the public other than as a result of a wrongful disclosure by such Party;
(b) which becomes available to such Party from other sources not known by such Party to be bound by a confidentiality obligation; or
(c) to the extent required by law.
(a) Absent an agreement between the Parties to the contrary, each Party to the arbitration shall appoint one (1) arbitrator and the two (2) arbitrators so selected shall nominate the third arbitrator. If the two (2) arbitrators nominated by the Parties cannot agree on a third arbitrator, the third arbitrator shall be appointed in accordance with the Rules.
(b) The arbitration proceedings shall take place in San Francisco, California, U.S.A.
(c) The arbitration shall be conducted in the English language, provided that either Party may submit testimony or documentary evidence in Japanese (with English translations to be provided at the request and cost of the other Party).
(d) The award rendered by the arbitral tribunal shall be binding upon the Parties and may include award of costs, including reasonably attorneysβ fees and disbursements. Judgment on the award may be entered in any court having jurisdiction thereof.
(e) At the request of either Party, the arbitral tribunal may issue any order for interim relief, including injunctive relief, it deems necessary. The arbitral tribunal shall have the power, inter alia, to order that (i) neither Party take any action inconsistent with this Agreement, and (ii) that both Parties continue to perform under this Agreement during the pendency of the arbitral proceedings. Each Party shall also have the right to seek injunctive or other equitable relief from any court of competent jurisdiction, which right shall not be deemed incompatible with, or a waiver of, the agreement to arbitrate set forth in this Section 7.3.
If to SII:
Seiko Instruments Inc.8, Xxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx-xxx, Xxxxx 000-0000
Xxxxx
Telephone:
Facsimile:
Attention:
If to FEP:
Franklin Electronic Publishers, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
X.X.X.
Telephone: 000 000 0000x0000
Facsimile: 000 000 0000
Attention: Xxxxx Xxxxxx, President and CEO
cc: Xxxxxx Xxxxxx, CFO
Such notices shall be deemed to have been received, (i) if delivered in person or by courier, upon actual receipt by the intended recipient, (ii) if sent by facsimile, transmission confirmed, on the date of transmission unless transmitted after normal business hours at the place of receipt, in which case on the following business day at the place of receipt, or (iii) if mailed, upon the date of first attempted delivery.
[signature pages follow]
SEIKO INSTRUMENTS INC. | ||
By: |
| |
Name: | ||
Title: | ||
FRANKLIN ELECTRONIC PUBLISHERS, INC. | ||
By: |
| |
Name: | ||
Title: |
Schedule A SII Products for Americas market and Prices
See attached
Schedule B SII Products for German market and Prices
See attached
SUPPLY AND DISTRIBUTION AGREEMENT
THIS SUPPLY AND DISTRIBUTION AGREEMENT (this βAgreementβ) is made and entered into as of this 30th day of June, 2007 by and between Seiko Instruments Inc., a corporation organized and existing under the laws of Japan, with offices at 0, Xxxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx-xxx, Xxxxx 261-8507, Japan (βSIIβ), and Franklin Electronic Publishers, Inc., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, U.S.A, with offices at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, X.X.X. (βFEPβ).
(SII and FEP are referred to herein individually as a βPartyβ and collectively as the βPartiesβ.)
A. WHEREAS, pursuant to that certain Termination and Release Agreement of even date herewith between SII and FEP (βTermination Agreementβ), SII and FEP have provided for the termination of certain aspects of their existing relationship.
1. | DEFINITIONS AND INTERPRETATION |
βAgreementβ is defined in the preamble hereto.
βDate of Deliveryβ is defined in Section 3.2.
βDelivery Pointβ is defined in Section 3.4.
βFEPβ is defined in the preamble hereto.
βFEP Australiaβ is defined in Section 2.5.
βInvoiceβ is defined in Section 5.1.
βLawsβ is defined in Section 9.1
βPartyβ and βPartiesβ are defined in the preamble hereto.
βPricesβ is defined in Section 4.
βPrior Sales Productsβ is defined in Section 7.
βProductsβ is defined in Section 2.3.
βPurchase Orderβ is defined in Section 3.2.
βSIIβ is defined in the preamble hereto.
βTermβ is defined in Section 14.1.
βTerritoryβ is defined in Section 2.1.
2. | APPOINTMENT |
3. | ORDER AND DELIVERY |
β**** indicates where a confidential portion has been omitted and filed separately with the Commission.β
4. | PRICES OF THE PRODUCTS |
The prices to be paid by FEP for Products supplied by SII hereunder (the βPricesβ) shall be as set forth in Schedule A hereto. The Prices may be revised through mutual good faith discussions between the Parties. Any Purchase Orders received from FEP and accepted by SII prior to the effective date of any Price change will be invoiced at the Prices effective as of the date of the acceptance by SII. For the avoidance of doubt, FEP shall at all times be free to determine in every case the price at which FEP or FEP Australia will resell the Products to its customers.
5. | TERMS OF PAYMENT |
6. | MARKETING AND BRANDING |
the βSEIKOβ trademark solely to promote and advertise the Products in the Territory. FEP shall treat as the confidential information of SII, all manuals and other materials setting forth instructions on the use of the βSEIKOβ trademark which are disclosed by SII or, if any, Seiko Corporation. FEP shall strictly keep such manuals and other instructions in confidence and as otherwise directed by SII and Seiko Corporation, and return to SII such manuals and other materials at the request of SII or Seiko Corporation. FEP shall not make any modifications or changes to the trademarks and logos, including βSEIKOβ trademark, marked on the Products or materials supplied by SII. FEP agrees to submit for SIIβs approval, copies of all materials (including sales literature and promotional and advertising materials) relating to the Products created by or for FEP prior to use of such materials, and agrees to make such changes thereto as SII may reasonably request prior to any such use.
6.3 C-Tick Xxxx. FEP permits SII to use, at its cost, FEP Australiaβs βC-Tickβ certification xxxx for the Products. FEP shall render such reasonable assistance as may be necessary or appropriate to provide such xxxx and cause FEP Australia to keep certification record ready for the government authorityβs inspection.
7. | SERVICES |
FEP shall furnish, during the Term and for one (1) year after the expiration or termination of this Agreement, (i) adequate after-sale services in the Territory for the Products and (ii) adequate after-sale services and/or warranty services for all the Products and all of other SIIβs products that have been sold by FEP or its respective affiliates, agents or distributors in the Territory prior to the Effective Date (the βPrior Sales Productsβ). SII shall provide reasonable support to FEP regarding the above services on the Products and/or Prior Sales Products. The detailed terms and conditions on which such support shall be provided by SII shall be determined through mutual discussions between FEP and SII.
8. | INTELLECTUAL PROPERTY RIGHTS |
8.5 No Warranty and Representation. SII MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS AND/OR COMPONENTS THEREOF EXCEPT AS SPECIFICALLY SET FORTH IN THIS AGREEMENT.
9. | COMPLIANCE WITH REGULATIONS |
directors, employees and agents harmless from and against any damage, claim, judgment, loss, cost, liability or other expense including, without limitation, legal expenses, arising out of or resulting from FEPβs failure to comply with the Laws or its obligations under this Section 9.1.
10. | WARRANTIES |
11. | INDEMNIFICATION |
(a) FEP provides SII with timely notice of all claims or complaints received by FEP;
(b) FEP makes no admission of liability and gives SII sole authority to defend or settle such claims or complaints; and
(c) FEP provides documents and assistance reasonably necessary to defend or settle any such claims or complaints.
SIIβs obligations under this Section 11.1 shall not apply to liabilities, damages, losses, costs and expenses (including legal fees and other legal expenses) caused by or arising in connection with: (i) unauthorized modification, change or addition to the Products by persons other than SII; or (ii) instructions, directions or specifications proposed by FEP.
12. | LIMITATION OF LIABILITY |
EXCEPT AS SPECIFICALLY PROVIDED HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE OR KIND WHATSOEVER, INCLUDING WITHOUT LIMITATION, LOST PROFITS, OR OTHER ECONOMIC LOSS IN CONNECTION WITH OR ARISING OUT OF THE USE OF THE PRODUCTS, OR ANY ACT OR OMISSION BY EITHER PARTY OR ITS EMPLOYEES.
13. | REPRESENTATIONS AND WARRANTIES |
(a) SII is a corporation duly incorporated and validly existing under the laws of Japan, with full power and authority to own its assets and conduct its business as presently conducted and as proposed to be conducted.
(b) SII has full corporate power and authority to enter into this Agreement and to exercise its rights and perform its obligations hereunder. All corporate actions and procedures necessary to authorize its execution, delivery and performance of this Agreement have been taken.
(c) All acts, conditions and things (including the obtaining of any third party or governmental consents) which are necessary or prudent to be done, fulfilled, obtained or performed by SII in connection with its execution, delivery or performance of this Agreement have been done, fulfilled and/or performed, are in full force and effect and are not subject to any pending or threatened proceedings.
(d) This Agreement has been duly executed and delivered by SIIβs authorized representative and, assuming the due authorization, execution and delivery hereof by FEP, constitutes and will at all times constitute the legal, valid and binding obligation of SII enforceable against SII in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditorβs rights generally and to general principles of equity.
(e) SIIβs execution, delivery and performance of this Agreement will not result in contravention of (i) its constitutive documents, (ii) any contractual provision to which it is subject or by which its assets are bound, (iii) any laws, rules or regulations applicable to it or its property, or (iv) any judgment, injunction, order or decree binding on it or any of its assets.
(a) FEP is a corporation duly incorporated and validly existing under the laws of the Commonwealth of Pennsylvania, U.S.A., with full power and authority to own its assets and conduct its business as presently conducted and as proposed to be conducted.
(b) FEP has full corporate power and authority to enter into this Agreement and to exercise its rights and perform its obligations hereunder. All corporate actions and procedures necessary to authorize its execution, delivery and performance of this Agreement have been taken.
(c) All acts, conditions and things (including the obtaining of any third party or governmental consents) which are necessary or prudent to be done, fulfilled, obtained or performed by FEP in connection with its execution, delivery or performance of this Agreement have been done, fulfilled and/or performed, are in full force and effect and are not subject to any pending or threatened proceedings.
(d) This Agreement has been duly executed and delivered by FEPβs authorized representative and, assuming the due authorization, execution and delivery hereof by SII, constitutes and will at all times constitute the legal, valid and binding obligation of FEP enforceable against FEP in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditorβs rights generally and to general principles of equity.
(e) FEPβs execution, delivery and performance of this Agreement will not result in contravention of (i) its constitutive documents, (ii) any contractual
provision to which it is subject or by which its assets are bound, (iii) any laws, rules or regulations applicable to it or its property, or (iv) any judgment, injunction, order or decree binding on it or any of its assets.
14. | TERM AND TERMINATION |
(a) In the event that the other Party has materially breached any provision of this Agreement, and such breach is not cured within thirty (30) days after written notice thereof by the non-breaching Party.
(b) In the event that, (i) a receiver is appointed for the other Party or its property; (ii) any proceedings are commenced by or for such other Party under any bankruptcy, insolvency or debtorβs relief law; (iii) any proceedings are commenced against such other Party under any bankruptcy, insolvency or debtorβs relief law and such proceedings are not vacated or set aside within sixty (60) days from the date of commencement thereof, or (iv) such other Party is wound up, liquidated or dissolved.
14.4 Effects of Expiration or Sooner Termination. Upon the expiration or sooner termination of this Agreement:
(a) All outstanding sums due under this Agreement shall become immediately due and payable.
(b) A Party shall at its own expense within fourteen (14) days of the date of such expiration or termination provide to the other Party or otherwise dispose of as the other Party directs, all confidential information and other written materials and information, including, but not limited to, technical and marketing information, specifications, data and know-how pertaining to the Products, all customer lists, advertising, promotional or sales material relating to the Products and all copies thereof, in the possession or under the control of the Party and shall cause all of its employees to act in accordance thereto.
β**** indicates where a confidential portion has been omitted and filed separately with the Commission.β
(c) FEP shall be entitled to sell off its inventory of Products for **** thereafter. Thereafter, FEP shall cease to sell, distribute, promote, market or advertise the Products or hold itself out as an authorized distributor of the Products.
(d) Neither Party shall have any further rights, duties, liabilities or obligations under this Agreement, except for (i) any rights or liabilities which at the time of such expiration or sooner termination has already accrued in favor of or against a Party, or which thereafter may accrue in favor of or against a Party in respect of any act or omission occurring prior to such expiration or sooner termination, and (ii) those rights, duties and obligations which are expressly stated elsewhere in this Agreement as surviving the expiration or sooner termination hereof.
(e) The following provisions shall survive the expiration or sooner termination of this Agreement: Section 6.2 (Trademarks), Section 7 (Services), Section 8 (Intellectual Property Rights), Section 11 (Indemnification), Section 12 (Limitation of Liability) and Section 15 (Miscellaneous Provisions).
15. | MISCELLANEOUS PROVISIONS |
(a) which becomes generally available to the public other than as a result of a wrongful disclosure by such Party;
(b) which becomes available to such Party from other sources not known by such Party to be bound by a confidentiality obligation;
(c) that is independently acquired by such Party as a result of work carried out by any employee or representative of such Party to whom no disclosure of such information has been made; or
(d) to the extent required by law.
(a) Absent an agreement between the Parties to the contrary, each Party to the arbitration shall appoint one (1) arbitrator and the two (2) arbitrators so selected shall nominate the third arbitrator. If the two (2) arbitrators nominated by the Parties cannot agree on a third arbitrator, the third arbitrator shall be appointed in accordance with the Rules.
(b) The arbitration proceedings shall take place in San Francisco, California, U.S.A.
(c) The arbitration shall be conducted in the English language, provided that either Party may submit testimony or documentary evidence in Japanese (with English translations to be provided at the request and cost of the other Party).
(d) The award rendered by the arbitral tribunal shall be binding upon the Parties and may include award of costs, including reasonably attorneysβ fees and disbursements. Judgment on the award may be entered in any court having jurisdiction thereof.
(e) At the request of either Party, the arbitral tribunal may issue any order for interim relief, including injunctive relief, it deems necessary. The arbitral tribunal shall have the power, inter alia, to order that (i) neither Party take any action inconsistent with this Agreement, and (ii) that both Parties continue to perform under this Agreement during the pendency of the arbitral proceedings. Each Party shall also have the right to seek injunctive or other equitable relief from any court of competent jurisdiction, which right shall not be deemed incompatible with, or a waiver of, the agreement to arbitrate set forth in this Section 15.4.
If to SII:
Seiko Instruments Inc.
0, Xxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx-xxx, Xxxxx 000-0000
Japan
Telephone:
Facsimile:
Attention:
If to FEP:
Franklin Electronic Publishers, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
X.X.X.
Telephone: 000 000 0000x0000
Facsimile: 000 000 0000
Attention: Xxxxx Xxxxxx, President and CEO
cc: Xxxxxx Xxxxxx, CFO
Such notices shall be deemed to have been received, (i) if delivered in person or by courier, upon actual receipt by the intended recipient, (ii) if sent by facsimile, transmission confirmed, on the date of transmission unless transmitted after normal business hours at the place of receipt, in which case on the following business day at the place of receipt, or (iii) if mailed, upon the date of first attempted delivery.
[signature pages follow]
SEIKO INSTRUMENTS INC. | ||
By: |
| |
Name: | ||
Title: | ||
FRANKLIN ELECTRONIC PUBLISHERS, INC. | ||
By: |
| |
Name: | ||
Title: |
Schedule A Products and Prices
See attached
LICENSE AGREEMENT
THIS LICENSE AGREEMENT (this βAgreementβ or the βNew Licenseβ) is made and entered into as of this 30th day of June, 2007, by and between Seiko Instruments Inc., a corporation organized and existing under the laws of Japan, with offices at 0, Xxxxxx 0-xxxxx, Xxxxxx-xx, Xxxxx-xxx, Xxxxx 261-8507, Japan (βSIIβ), and Franklin Electronic Publishers, Inc., a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, U.S.A, with offices at Xxx Xxxxxxxx Xxxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000-0000, X.X.X. (βFEPβ).
(SII and FEP are referred to herein individually as a βPartyβ and collectively as the βPartiesβ.)
A. WHEREAS, pursuant to that certain Termination and Release Agreement of even date herewith between SII and FEP (the βTermination Agreementβ), SII and FEP have provided for the termination of certain aspects of their existing relationship as of the Termination Date.
1. | DEFINITIONS AND INTERPRETATION AND EFFECTIVE DATE |
βAgreementβ is defined in the preamble hereto.
βContinuing License Agreementsβ shall mean, collectively, the Cross License Agreement, the Chip License, and the Sudoku License.
βTermination Agreementβ is defined in Recital A above.
βTermination Dateβ is defined in the Termination Agreement.
2. | AMENDMENT OF CONTINUING LICENSE AGREEMENTS |
(a) Section 1.2 of the Cross License is hereby amended to read in full as follows:
β1.2 βFranklin Patentsβ shall mean any and all U.S. patents issued to, acquired by or granted to Franklin or its Subsidiaries that have been or are issued prior to June 30, 2012 or issued pursuant to applications filed on or before June 30, 2012 in the field of the Licensed Products, and any and all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof.β
(b) Section 1.3 of the Cross License Agreement is hereby amended to read in full as follows:
β1.3 βSII Patentsβ shall mean any and all U.S. and Japanese patents issued to, acquired by or granted to SII or its Subsidiaries that have been or are issued prior to June 30, 2012 or issued pursuant to applications filed on or before June 30, 2012 in the field of the Licensed Products, and any and all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof.β
(c) Section 1.4 of the Cross License is hereby amended to read in full as follows:
β1.4 βLicensed Productsβ shall mean any and all language reference products including but not limited to electronic dictionaries, spellcheckers, thesauruses and/or translators; provided, however, for the avoidance of doubt, that βLicensed Productsβ shall in all cases refer to and mean fully assembled and completed language reference products, and not components, parts, or subassemblies thereof.β
(d) Section 3.1 of the Cross License is hereby amended to read in full as follows:
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β**** indicates where a confidential portion has been omitted and filed separately with the Commission.β
****
(e) Section 3.2 of the Cross License is hereby amended to read in full as follows:
****
(f) Section 4.1 of the Cross License is hereby amended by striking the phrase βor the date of expiration or termination of the Distribution Agreement, whichever comes first.β
(g) A new Section 5.3 is hereby added to the Cross License to read in full as follows:
β5.3 Without limiting the foregoing provisions of this Section 5, neither party shall be under any obligation whatsoever under this Agreement to apply for, maintain, or enforce any patent.β
(a) the following provisions of the Chip License are stricken: Paragraph 4;
(b) Paragraph 7 of the Chip License is hereby amended to read in full as follows:
β7. The term of this Agreement shall run through the first to occur of (a) the date eight (8) years from the Effective Date or (b) the date that **** no longer manufactures and sells the Chip, unless sooner terminated for cause in accordance with Paragraph 11 hereinbelow and shall be renewable on a year to year basis thereafter unless one party notifies the other in writing of termination not later than three (3) months prior to the end of the then current termβ; and
(c) the proviso in the second sentence of Paragraph 2 of the Chip License is hereby replaced by the following: βprovided, however, that SII agrees that its use of Chips in Products shall be limited to ****.β
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β**** indicates where a confidential portion has been omitted and filed separately with the Commission.β
β6. Notwithstanding Section 1 hereof, at the end of this Agreement, Franklin may sell off its inventory of Products, incorporating the Puzzles and bearing one or more of the Marks, then on hand for ****; provided, however, that Franklin shall pay to SII all applicable royalties for such Products hereunder.
3. | CONTENT |
4. | REPRESENTATIONS AND WARRANTIES |
(a) SII is a corporation duly incorporated and validly existing under the laws of Japan, with full power and authority to own its assets and conduct its business as presently conducted and as proposed to be conducted.
(b) SII has full corporate power and authority to enter into this Agreement and to exercise its rights and perform its obligations hereunder. All corporate actions and procedures necessary to authorize its execution, delivery and performance of this Agreement have been taken.
(c) All acts, conditions and things (including the obtaining of any third party or governmental consents) which are necessary or prudent to be done, fulfilled, obtained or performed by SII in connection with its execution, delivery or performance of this Agreement have been done, fulfilled and/or performed, are in full force and effect and are not subject to any pending or threatened proceedings.
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(d) This Agreement has been duly executed and delivered by SIIβs authorized representative and, assuming the due authorization, execution and delivery hereof by FEP, constitutes and will at all times constitute the legal, valid and binding obligation of SII enforceable against SII in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditorβs rights generally and to general principles of equity.
(e) SIIβs execution, delivery and performance of this Agreement will not result in contravention of (i) its constitutive documents, (ii) any contractual provision to which it is subject or by which its assets are bound, (iii) any laws, rules or regulations applicable to it or its property, or (iv) any judgment, injunction, order or decree binding on it or any of its assets.
(a) FEP is a corporation duly incorporated, validly existing under the laws of the Commonwealth of Pennsylvania, U.S.A., with full power and authority to own its assets and conduct its business as presently conducted and as proposed to be conducted.
(b) FEP has full corporate power and authority to enter into this Agreement and to exercise its rights and perform its obligations hereunder. All corporate actions and procedures necessary to authorize its execution, delivery and performance of this Agreement have been taken.
(c) All acts, conditions and things (including the obtaining of any third party or governmental consents) which are necessary or prudent to be done, fulfilled, obtained or performed by FEP in connection with its execution, delivery or performance of this Agreement have been done, fulfilled and/or performed, are in full force and effect and are not subject to any pending or threatened proceedings.
(d) This Agreement has been duly executed and delivered by FEPβs authorized representative and, assuming the due authorization, execution and delivery hereof by SII, constitutes and will at all times constitute the legal, valid and binding obligation of FEP enforceable against FEP in accordance with its terms, subject to the effects of bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditorβs rights generally and to general principles of equity.
(e) FEPβs execution, delivery and performance of this Agreement will not result in contravention of (i) its constitutive documents, (ii) any contractual provision to which it is subject or by which its assets are bound, (iii) any laws, rules or regulations applicable to it or its property, or (iv) any judgment, injunction, order or decree binding on it or any of its assets.
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5. | MISCELLANEOUS PROVISIONS |
(a) which becomes generally available to the public other than as a result of a wrongful disclosure by such Party;
(b) which becomes available to such Party from other sources not known by such Party to be bound by a confidentiality obligation;
(c) that is independently acquired by such Party as a result of work carried out by any employee or representative of such Party to whom no disclosure of such information has been made; or
(d) to the extent required by law.
(a) Absent an agreement between the Parties to the contrary, each Party to the arbitration shall appoint one (1) arbitrator and the two (2) arbitrators so selected shall nominate the third arbitrator. If the two (2) arbitrators nominated by the Parties cannot agree on a third arbitrator, the third arbitrator shall be appointed in accordance with the Rules.
(b) The arbitration proceedings shall take place in San Francisco, California, U.S.A.
(c) The arbitration shall be conducted in the English language, provided that either Party may submit testimony or documentary evidence in Japanese (with English translations to be provided at the request and cost of the other Party).
(d) The award rendered by the arbitral tribunal shall be binding upon the Parties and may include award of costs, including reasonably attorneysβ fees and disbursements. Judgment on the award may be entered in any court having jurisdiction thereof.
(e) At the request of either Party, the arbitral tribunal may issue any order for interim relief, including injunctive relief, it deems necessary. The arbitral tribunal shall have the power, inter alia, to order that neither Party take any action
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inconsistent with this Agreement. Each Party shall also have the right to seek injunctive or other equitable relief from any court of competent jurisdiction, which right shall not be deemed incompatible with, or a waiver of, the agreement to arbitrate set forth in this Section 5.3.
If to SII:
Seiko Instruments Inc.
8, Xxxxxx 0-xxxxx
Xxxxxx-xx, Xxxxx-xxx, Xxxxx 000-0000
Xxxxx
Telephone: x00-(0)00-000-0000
Facsimile: x00-(0)00-000-0000
Attention: Vice President & General Manager Legal & Intellectual Property Center
If to FEP:
Franklin Electronic Publishers, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
X.X.X.
Telephone: 000 000 0000x0000
Facsimile: 000 000 0000
Attention: Xxxxx Xxxxxx, President and CEO
cc: Xxxxxx Xxxxxx, CFO
Such notices shall be deemed to have been received, (i) if delivered in person or by courier, upon actual receipt by the intended recipient, (ii) if sent by facsimile, transmission confirmed, on the date of transmission unless transmitted after normal business hours at the place of receipt, in which case on the following business day at the place of receipt, or (iii) if mailed, upon the date of first attempted delivery.
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[signature pages follow]
8
SEIKO INSTRUMENTS INC. | ||
By: |
| |
Name: | ||
Title: | ||
FRANKLIN ELECTRONIC PUBLISHERS, INC. | ||
By: |
| |
Name: | ||
Title: |
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