EXHIBIT 10.7
Amendment No. 1
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This Amendment No. 1 to the Sale of Goods Agreement and Exclusive License
entered into as of the 10th day of September, 1996 (referred to hereinafter as
the "Agreement") by and between XXXXXX MADE GOLF COMPANY, INC. ("Xxxxxx Made
Golf"), a California corporation, and ALYN CORPORATION ("Alyn"), a Delaware
corporation, is entered into as of this 14th day of October, 1996 and comes
retroactively into force as of the 10th day of September, 1996 (the "Effective
Date"), by and between Xxxxxx Made Golf and Alyn. All capitalized terms used
herein and not otherwise defined shall have the meaning ascribed to them in the
Agreement.
WHEREAS, the Parties and their affiliates are desirous of amending certain
provisions of the Agreement so that they accurately reflect the general spirit
of their negotiations and mutual commitments and enable them to develop a
long-lasting, mutually beneficial relationship in order that they may work
together as partners in the creation and development of enhanced, advanced
Boralyn based products.
WHEREAS, Xxxxxx Made Golf hereby reaffirms its intent to commit appropriate
reasonable resources to marketing, advertising and sales efforts to enhance the
market for Products.
NOW, THEREFORE, for and in consideration of the promises and the mutual promises
and benefits contained herein, the receipt and sufficiency of which is hereby
acknowledged, the Parties hereto hereby agree as follows:
The Agreement is hereby amended as follows:
ARTICLE 1
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DEFINITIONS
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1.18
"Approved Specifications" of each product shall mean design in accordance with
specifications of Xxxxxx Made Golf delivered to Alyn by Xxxxxx Made Golf and
approved by Alyn.
Approved Specifications shall define performance and quality of the product,
including but not limited to:
. Measured performance (distance, accuracy, trajectory, direction, dispersion)
. Perception as compared to competing benchmarks
. Durability (breakage, resistance to wear)
. Conformance to drawing tolerances.
ARTICLE 4
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PURCHASE ORDERS AND DELIVERY
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SECTION 4.1 of the Agreement is hereby amended by deleting the last sentence of
section 4.1 and inserting the following, in lieu thereof:
"Xxxxxx Made Golf shall be required to (a) place Purchase Orders for the minimum
amount of each Product in each Sales Quarter and each Sales Year, respectively,
as is set forth opposite the name of such Product in Schedule 4.1 and (b) advise
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Alyn in writing not less than 90
days prior to the commencement of any Sales Quarter whether it expects or does
not expect to meet the minimum order, volume requirements for that Sales Quarter
set forth in Schedule 4.1, provided, however, that notwithstanding the foregoing
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and any other provision of this Agreement, including, without limitation,
Section 5.1(e) and Section 13.12, Alyn's sole remedy for Xxxxxx Made's non
observance to place Purchase Orders required to maintain exclusivity or to
provide such written advice shall be transformation of Xxxxxx Made's exclusive
license rights into non exclusive license rights as provided under Article 5 of
this Agreement.
ARTICLE 5
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EXCLUSIVE LICENSE
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ARTICLE 5.1 SECTION (c) is deleted and modified as follows:
"This exclusive worldwide license is non transferable.
In case of non observance by Xxxxxx Made to purchase the minimum amount of a
Product or several Products in any Sales Quarter or in any Sales Year to
maintain exclusivity in accordance with Schedule 4.1 and the delivery to Xxxxxx
Made Golf by Alyn of written notice of such non observance within ten (10) days
after the end of such Sales Quarter or Sales Year, as the case may be, the
license shall become a non exclusive license but only for the Product or the
Products concerned by non observance of minimum quantities and shall remain
exclusive for other Products.
Notwithstanding the foregoing, the license shall remain exclusive if non
observance of minimum quantities to maintain exclusivity arises in accordance
with the terms and conditions hereof.
Anything in the foregoing to the contrary notwithstanding, if Alyn shall first
deliver Product to Xxxxxx Made Golf on a date subsequent to July 1, 1997 (the
"Late Delivery Date"), then:
Points A and B as worded in the Agreement remain unchanged from (A) "If the
Late delivery" up to "Xxxxxx Made Golf have under this Agreement"
SECTION (e): Is deleted and replaced by the following in lieu thereof: "The
transformation of the exclusive license and rights into a non-exclusive license
and rights according to Article 5 shall be Alyn's sole remedy for any non
observance by Xxxxxx Made Golf to purchase (in accordance with the terms and
conditions of this Agreement) the minimum amount of such Product in any Sales
quarter or in any Sales Year in accordance with Schedule 4.1".
3. "All five other provision of the Agreement remain unchanged and in full
force and effect.
This Amendment shall be made immediately public by Alyn in the framework of
Alyn's IPO and become an exhibit of or an addendum to the prospectus.
The Agreement as amended hereby, constitutes the entire Agreement between the
Parties concerning the subject matter hereof and supersedes all written or oral
prior agreements or understandings with respect thereto, and all prior
communications relating to minimum purchase requirements under the Agreement.
IN WITNESS WHEREOF, the Parties have caused this Amendment No.1 to the Agreement
to be executed by their duly authorized officers on the respective dates
hereinafter set forth".
TAYLORMADE GOLF COMPANY, Inc
By /s/ Xxxx Xxx 10-16-96
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Xxxx Xxx
Vice President of Research and
Development
ALYN CORPORATION
By /s/ Xxxxx X. Xxxxxx 10-14-96
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Xxxxx X. Xxxxxx
President and Chief Executive
