Exhibit 10.13
The ommitted portions indicated by an asterisk have been separately filed with
the Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406 of the Securities Act of 1933, as amended.
MANUFACTURING, SALES & MARKETING AGREEMENT
THIS MANUFACTURING, SALES & MARKETING AGREEMENT (this "Agreement") is made
and entered into as of April 26, 2002, by and between Nomaco Inc., a Delaware
corporation with its principal place of business in Zebulon, North Carolina
("Nomaco"), and RBX Industries, Inc., a Delaware corporation with its principal
place of business in Roanoke, Virginia ("RBX").
Statement of Purpose
In recognition that RBX and Nomaco each has skills and resources superior
to those of the other in respect of certain aspects of their businesses, Nomaco
and RBX desire to improve their efficiency and competitiveness by entering into
a business relationship in which RBX shall transfer to Nomaco rights relating to
certain of RBX's polyethylene thermal mechanical insulation products and RBX
shall serve as Nomaco's exclusive sales representative for such products, all in
accordance with the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Definitions. Capitalized terms used in this Agreement shall have the
meanings given to such terms in this Section 1 or elsewhere in this Agreement.
(a) An "Acquisition" of a Person means (i) a consolidation or merger of
such Person with or into any other Person in which either (A) greater than fifty
percent (50%) of the capital stock or other ownership interests in such Person
are transferred, or (B) such Person is not the surviving entity of such
consolidation or merger; (ii) a transaction or series of related transactions
resulting in the sale or transfer of greater than fifty percent (50%) of the
capital stock or other ownership interests in such Person; or (iii) the sale of
all or substantially all of the assets of such Person. Similarly, "Acquire"
means to acquire a Person pursuant to an Acquisition and "Acquired" means to be
acquired pursuant to an Acquisition.
(b) A "Business" means any Person that is an entity, or any division or
department of such a Person where such division or department is not a separate
entity.
(c) "Competitive Practices" means the practices of the primary competitors
of RBX and Nomaco in the sale of Products (or products competitive with the
Products) in the Markets.
(d) "Confidential Information" means, confidential, non-public or
proprietary information that is disclosed or made available by a party to the
other party in connection with this Agreement, including, without limitation,
specifications and technical information, inventions, developments, ideas,
know-how, data, formulae, compositions, designs, processes,
business and product plans, research and development plans or results and other
information relating to the business, operations, finances, sales, marketing,
customers, products or technology of such party, in each case whether disclosed
or made available in oral, written, electronic, graphic or any other form.
Confidential Information includes all copies, reproductions, notes and
repositories thereof, whether in written, electronic, graphic or any other form.
Notwithstanding the foregoing, "Confidential Information" shall not include: (i)
information which is or becomes available to the general public through no
breach of this Agreement; (ii) information which is possessed by the receiving
party at the time of disclosure (and acquired with no breach of any
confidentiality limitation known to the receiving party); (iii) information
which is subsequently acquired from a third party who has a bona fide right to
make such information available without restriction known to the receiving
party; (iv) information which is independently developed by the receiving party
without use of Confidential Information of the other party; or (v) information
which is required to be disclosed by court order or applicable law or
regulation, including, without limitation, the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder, and the
Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder (except that the party required to make disclosure shall
promptly notify the other party of such court order, law or regulation and
cooperate with the other party to limit the scope of disclosure required, to the
extent such limitation is permitted by law or regulation).
(e) * .
(f) "Dispute" means any dispute between the parties arising out of or
relating to this Agreement, including, without limitation, disagreements of the
parties regarding commercial matters such as pricing, customer service, sales
efforts, product, product quality, required inventories or alleged commercially
unreasonable conduct of a party which threatens to be materially detrimental to
the profitable manufacture and sale of Products hereunder, whether or not such
dispute or disagreement is based upon a breach or alleged breach of this
Agreement by either party.
(g) "Excluded Products" means the products set forth on Exhibit B attached
hereto, none of which shall be included within the meaning of "Products" as used
herein.
(h) "Gross Sales" means the gross amount of invoices to customers for the
purchase and sale of Products. Freight (including insurance), rebates,
distribution costs, warehouse fees, cash discounts for early payment and other
costs associated with the movement of Products to customers shall not be
deducted from Gross Sales. Return of Products or credit to customers for
defective Products or Products that are accepted and authorized for return by
Nomaco to balance or correct customer inventories shall be deducted from Gross
Sales.
(i) * .
(j) "Insulation Division" means the division or Business of RBX that
currently manufactures, markets and sells thermal mechanical insulation products
or components thereof, or any successor thereto by Acquisition or otherwise.
(k) "Losses" means any losses, claims, demands, penalties, liabilities,
damages, fees, costs and expenses, including, without limitation, reasonable
attorneys' fees and court costs.
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(l) "Manufacturing Transition Plan" means the manufacturing transition plan
attached hereto as Exhibit C, which plan will include, among other things, terms
relating to pricing, freight, cash discounts, volume rebates, credit terms and
other material terms of sale.
(m) "Manufacturing Transition Period" means the period commencing and
ending on the dates set forth in the Manufacturing Transition Plan for the
transition described therein.
(n) "Marketing Transition Plan" means the marketing transition plan
attached hereto as Exhibit D.
(o) "Marketing Transition Period" means the period commencing and ending on
the dates set forth in the Marketing Transition Plan for the transition
described therein.
(p) "Markets" means all of the following customers in the United States,
United States possessions and territories, Canada, and Mexico: HVAC wholesalers,
plumbing supply wholesalers, mechanical parts wholesalers, refrigeration
wholesalers, industrial and commercial distributors, commercial insulation
contractors, and retailers and catalogue houses buying and reselling Products to
the commercial, institutional, residential, industrial, mercantile and shipyard
construction markets.
(q) "Nomaco K-Flex" means Nomaco K-Flex, LLC, a North Carolina limited
liability company.
(r) "Nomaco Marks" means the trademarks and/or trade names of Nomaco listed
on Exhibit E attached hereto.
(s) "Other Agreement" means the Manufacturing, Sales and Marketing
Agreement between RBX and Nomaco K-Flex dated as of the date hereof.
(t) "Person" means any individual, corporation, limited liability company,
partnership, company, sole proprietorship, joint venture, trust, estate,
association, organization, labor union, governmental agency or authority or
other entity.
(u) "Products" means polyethylene thermal mechanical insulation products
consisting of tubular, sheet and roll materials used to insulate piping, ducts,
vessels, tanks, chillers and HVAC equipment, including, without limitation, the
products described on Exhibit F attached hereto, including any enhancements,
changes, improvements or additions thereto. Notwithstanding the foregoing,
"Products" shall not include, and this Agreement shall not apply to, the
Excluded Products.
(v) "RBX Customers" means each customer of RBX * .
(w) "RBX Inventory Products" means products manufactured by RBX prior to
the date of this Agreement and available for sale on the date hereof, as such
products are described on Exhibit G attached hereto.
(x) "RBX Marks" means the trademarks and/or trade names of RBX listed on
Exhibit H attached hereto.
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(y) "RBX Transition Products" means products RBX is permitted to
manufacture under the Manufacturing Transition Plan, as such products are
described in the Manufacturing Transition Plan.
(z) "Sales Team Transition Plan" means the sales team transition plan
attached hereto as Exhibit I.
2. Appointment. Subject to the terms and conditions of this Agreement, (a)
Nomaco hereby appoints RBX as its exclusive representative responsible for sales
and marketing of the Products to the Markets; and (b) RBX hereby appoints Nomaco
as its exclusive representative responsible for the manufacturing of the
Products for the Markets.
3. Manufacturing.
(a) Manufacturing of Products Generally. Except as provided in Sections
3(b) and 3(c), all Products to be marketed and sold in the Markets shall be
manufactured exclusively by Nomaco.
(b) Limited Manufacturing and Sales of RBX Products. Notwithstanding any
provision of this Agreement, the parties agree that (i) RBX may sell the RBX
Inventory Products in accordance with the Manufacturing Transition Plan and
Marketing Transition Plan; and (ii) RBX may manufacture and sell the RBX
Transition Products in accordance with the Manufacturing Transition Plan and
during the Manufacturing Transition Period. All sales of such RBX Inventory
Products and RBX Transition Products (collectively, "RBX Products") shall be
transactions solely between RBX and its customers and RBX shall be solely
responsible for all such sales, including, without limitation, pricing
(consistent with historical practices), collection from customers, customer
service and support, warranty claims and product liability claims. Such RBX
Products shall be sold solely under the RBX Marks and no reference to Nomaco or
use of the Nomaco Marks shall be used in any such sales or placed on any such
RBX Products. Nomaco shall have no responsibility or liability with respect to
the RBX Products or any manufacturing or sales thereof and RBX shall indemnify
Nomaco in connection with the design, manufacturing, marketing and sale of the
RBX Products in accordance with Section 9.
(c) Additional Manufacturing and Sale of Products by RBX. The parties shall
meet periodically to determine their respective manufacturing capacities. Nomaco
reserves the right, upon written notice (the "Nomaco Notice") to RBX and subject
to the conditions set forth in this Section 3(c), to require RBX to commence the
manufacture of one or more of the Products for sale to Nomaco. Any such notice
shall specify:
(i) the Products that RBX shall be required to manufacture for sale to
Nomaco and the specifications thereof;
(ii) the quantities, expressed on a monthly basis, of the Products that
RBX shall be required to manufacture for sale to Nomaco and the number of months
in which such quantities shall be required;
(iii) the purchase price that Nomaco is prepared to pay to RBX for any
such Products * ; and
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(iv) any other terms and conditions that Nomaco shall propose with
respect to the manufacture, sale and resale of any such Products.
In the event RBX has available capacity in its existing manufacturing facilities
for the manufacture of any such Products, or can develop additional capacity in
its existing manufacturing facilities through the retooling or other
modification of such facilities for the manufacture of any such Products,
without incurring any material capital expenditure or expense in connection with
any such retooling or modification (such available capacity or additional
capacity, the "Requisite Capacity"), RBX shall, within thirty (30) days of
receiving the Nomaco Notice, provide Nomaco with written notice (the "RBX
Notice") of the terms and conditions on which it shall be willing to manufacture
and sell any such Products and shall thereafter cooperate with Nomaco in
negotiating the definitive terms and conditions that shall govern the
manufacture, sale and resale of any such Products. In no event, however, shall
either party be required to accept any terms and conditions relating to the
manufacture, sale and resale of any such Products that it determines, in the
exercise of its sole discretion, to be commercially unreasonable. In the event
RBX does not have the Requisite Capacity for the manufacture of such Products
without incurring any material capital expenditure or expense in connection
therewith, RBX shall, within thirty (30) days of receiving the Nomaco Notice,
notify Nomaco of such capacity restraint. After delivery of the notice described
in the sentence immediately preceding, neither Nomaco nor RBX shall have any
further rights, duties or obligations under this Section 3(c).
(d) Transition Assistance. Each party shall cooperate in the transition of
manufacturing responsibilities to Nomaco during the Manufacturing Transition
Period and perform its respective obligations under the Manufacturing Transition
Plan. Payment of each party's costs and expenses incurred in connection with
such activities shall be in accordance with the Manufacturing Transition Plan.
(e) Product Specifications. The parties shall consult with each other in
establishing Product specifications; provided, however, that all Product
specifications shall be finally determined by Nomaco in Nomaco's sole
discretion, after consultation with RBX.
(f) Changes in Products; No Obligation to Introduce New Products. Nomaco
may modify or discontinue any Products or Product lines in Nomaco's sole
discretion, after consultation with RBX, upon six (6) months prior written
notice to RBX. New Products (as defined herein), Products, Product lines and any
enhancement, change, improvement or addition of or to any Product will be
introduced into the Market in Nomaco's sole discretion and Nomaco shall not be
required to commercialize or introduce into the Market any such New Product,
Product, Product line, enhancement, change, improvement or addition.
(g) New Products. If either Nomaco or RBX (the "Developing Party") at any
time develops a new product (or an enhancement, change, improvement or addition
to an existing product) which is competitive with (or which replaces) any of the
Products in or for the Market but which is not initially included within the
meaning of "Products" as used herein (as applicable, the "New Product"), the
Developing Party shall notify the other party in writing (the "New Product
Notice") prior to manufacturing, marketing, distributing, selling or otherwise
commercializing such New Product (including by assigning or licensing to any
other Person any intellectual property rights therein), or distributing or
selling any raw materials to
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any Person whom the Developing Party has reason to know intends to use, or to
distribute or sell to any other Person whom the Developing Party has reason to
know intends to use, such raw materials in the manufacture of such New Product,
or entering into any letter of intent, contract or agreement with any other
Person relating to any of the foregoing. Except to the extent the non-Developing
Party otherwise elects as provided below, such New Product shall then
automatically become a "Product" covered by the terms and conditions of this
Agreement * effective as of the date of the New Product Notice * .
Notwithstanding the foregoing, the non-Developing Party may elect not to include
such New Product as a "Product" covered by this Agreement by notifying the
Developing Party in writing within sixty (60) days after the non-Developing
Party's receipt of the New Product Notice. If the non-Developing Party makes
such election * , then such New Product shall not become a "Product" covered by
this Agreement and the Developing Party shall be entitled to manufacture,
market, distribute and sell, or have manufactured, marketed, distributed and
sold by any other Person, such New Product and any raw materials for use in the
manufacture thereof and the non-Developing Party shall have no right, title or
interest in or to such New Product or raw materials or to any revenues generated
from the manufacture, marketing, distribution or sale thereof by or for the
Developing Party. If a New Product becomes a "Product" covered by this Agreement
in accordance with this Section, the Developing Party shall, for no additional
consideration, grant to the non-Developing Party such licenses and other rights,
if any, as may be necessary for the non-Developing Party to perform its
obligations under this Agreement with respect to such New Product, effective as
of the date on which such New Product becomes a "Product" covered by this
Agreement.
4. Sales and Marketing.
(a) Sales and Marketing of Products. Except as provided in the Marketing
Transition Plan, all Products to be marketed and sold to the Markets shall be
marketed and sold by RBX. RBX shall diligently and in good faith use
commercially reasonable efforts to market and promote sales of the Products in
the Markets to achieve maximum profitable sales volume. Without limiting the
foregoing, RBX shall perform the following specific tasks:
(i) develop and maintain a sales team fully dedicated to the marketing
and sales of Products to the Markets (the "Sales Team"), such Sales Team to be
developed in accordance with the Sales Team Transition Plan and to at a minimum
include sales representatives in such number and with such qualifications as is
then consistent with Competitive Practices;
(ii) cause the Sales Team to regularly call upon and visit customers
and potential customers in the Markets, to include at a minimum such volume and
frequency of calls and visits as is then consistent with Competitive Practices;
(iii) cause one or more members of the Sales Team to attend the
following trade shows each year: NIA, ARW, ASHRAE, HVAC and other major trade
shows in the United States, Canada and/or Mexico relating to the Products and/or
the Markets;
(iv) prepare brochures and promotional literature for the Products, to
include at a minimum such quality, volume and placement of brochures and
promotional literature as is then consistent with Competitive Practices;
provided, however, that all such brochures and
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promotional literature shall be subject to the prior written approval of Nomaco,
which approval shall not be unreasonably withheld, conditioned or delayed;
(v) purchase advertising for the Products, to include at a minimum such
quality, volume and placement of advertising as is then consistent with
Competitive Practices; provided, however, that all such advertising shall be
subject to prior written approval of Nomaco, which approval shall not be
unreasonably withheld, conditioned or delayed;
(vi) submit to Nomaco on a monthly basis during each calendar month,
detailed sales reports (to include at a minimum a report on activities described
in items (i) through (v) above undertaken during the immediately preceding
month) and such other reports and information reasonably requested by Nomaco
relating to RBX sales and marketing efforts during the immediately preceding
month;
(vii) establish sales incentive programs for members of the Sales Team,
to include at a minimum such sales incentives as are then consistent with
Competitive Practices;
(viii) submit to Nomaco on a monthly basis on or before the tenth
(10th) day of each calendar month, a good faith forecast of sales of Products
during the three (3) month period commencing with the calendar month in which
the forecast is delivered (a "Forecast"); and
(ix) promptly inform Nomaco as to any material complaints from
customers or other problems relating to any Products and promptly communicate to
Nomaco any and all material modifications, design changes or improvements of the
Products suggested by any customer or other Person, including any member of the
Sales Team.
(b) Inventory; Shipment. Nomaco shall diligently and in good faith use
commercially reasonable efforts to maintain an adequate inventory of Products
and, in consultation with RBX, to adopt a shipping policy that allows for
shipment of Products to customers in the Markets within lead times which are
consistent with Competitive Practices. Available inventory of Products shall be
allocated in the sole discretion of Nomaco.
(c) Customer Service and Support. The parties agree that customer service
and support shall be allocated between the parties as follows: (i) RBX shall
provide, at its sole cost and expense, all technical customer and sales service
and support for the Products, including, without limitation, pre-order entry
sales and technical support; and (ii) Nomaco shall provide, at its sole cost and
expense, logistical service and support for sales of the Products, including,
without limitation, order entry service regarding shipments and inventory
availability. In addition to the foregoing, each party, at its sole cost and
expense, shall assist the other party in providing such customer service and
support as reasonably requested by the other party from time to time.
(d) Information Management System. Nomaco shall provide and maintain, at
Nomaco's expense, an information management system that allows communication
between Nomaco and RBX relating to customer orders, credits, shipments and
customer communication. RBX shall have confidential electronic access on such
information management system to information relating to inventories, inventory
locations, orders, credits, shipments and customer communication relating to
Products sold or to be sold under this Agreement. All such
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information and such information management system shall constitute
"Confidential Information" of Nomaco under this Agreement and, in addition to
the restrictions on use or disclosure of Confidential Information contained
herein, RBX shall comply with all of Nomaco's reasonable written instructions
and policies in effect from time to time to maintain the confidentiality and
security of all such information and any information system on which it may be
located.
(e) Sales Team. The parties acknowledge that the initial Sales Team shall
include employees and independent sales representatives of RBX and persons who
RBX may hire as employees or engage as independent sales representatives that
are currently employed by Nomaco. Upon the termination of this Agreement for any
reason, the parties agree that, as between the parties, members of the Sales
Team may be hired as employees or engaged as independent sales representatives
only by the party for which each such Person originally served as an employee or
independent sales representative, or, after a period of one (1) year from the
termination date, by either party; provided, however, that RBX shall be deemed
to be the originating employer of all members of the Sales Team who are hired by
RBX during the duration of this Agreement and who were not previously employed
by Nomaco.
(f) Distribution Channels; Marketing Plans, Customer Selection and
Marketing and Sales Management. Marketing plans, advertising, channels of
distribution, customer selection, marketing and sales management and all
applicable budgets and expenditures shall be determined at the sole discretion
of RBX, after consultation with Nomaco; provided, however, that (i) RBX shall at
all times comply with its obligations under Section 4(a); and (ii) all customer
orders remain subject to acceptance by Nomaco in accordance with Section 5(b)
notwithstanding any customer selection by RBX.
(g) Marks. RBX hereby grants to Nomaco an exclusive, royalty free license
to use the RBX Marks for the marketing and sale of the Products in the Markets
until the expiration or termination of this Agreement; provided however, that
the foregoing shall not prohibit RBX from using the RBX Marks in connection with
(i) the performance of its obligations hereunder with respect to the RBX
Products sold under the RBX Marks in accordance with the Marketing Transition
Plan and during the Marketing Transition Period; or (ii) manufacturing,
marketing, distribution and sale of New Products to the extent permitted in
Section 3(g). RBX shall market and sell the Products in the Markets only under
the Nomaco Marks or, if and as directed by Nomaco, under the RBX Marks
exclusively licensed to Nomaco as set forth above, and under no other name or
description. RBX shall not use or permit the use of any Nomaco Marks in
connection with any other products and use of the Nomaco Marks shall at all
times be in accordance with Nomaco's reasonable written trademark or trade name
use policies in effect from time to time. Notwithstanding the foregoing, RBX may
market and sell Products under the RBX Marks in accordance with the Marketing
Transition Plan and during the Marketing Transition Period.
(h) Supplier Relationships. * .
(i) Authority of RBX. The authority of RBX hereunder is limited to
marketing and promoting sales of the Products in the Markets. RBX does not have,
and shall not hold itself out as having, any right, power or authority (i) to
create any contract or obligation, either express or
8
implied, on behalf of, in the name of, or binding upon Nomaco or (ii) to accept
legal process on behalf of Nomaco.
(j) Authority of Nomaco. The authority of Nomaco hereunder is limited to
manufacturing and sales of Products to its customers in the Markets. Nomaco does
not have, and shall not hold itself out as having, any right, power or authority
(i) to create any contract or obligation, either express or implied, on behalf
of, in the name of, or binding upon RBX or (ii) to accept legal process on
behalf of RBX.
(k) Conduct. In performing its obligations hereunder, each party agrees
that it (i) shall not engage in any unethical business practice; (ii) shall not
participate in any conduct detrimental to the other party or which would create
a conflict of interest with respect to RBX and Nomaco; (iii) shall not
misrepresent the Products or its authority hereunder; and (iv) shall maintain in
effect at all times during the term of this Agreement all licenses, permits,
authorizations and approvals required in order to carry out its obligations
hereunder.
(l) Commercial Insurance Coverage. Until the termination of this Agreement
and continuing for a period of six years thereafter, each party, at its sole
cost and expense, shall secure from an insurance company reasonably acceptable
to the other party and licensed to do business within the State of North
Carolina and the State of Virginia, and maintain throughout such term,
commercial liability insurance coverage, which shall include coverage against
products-completed operations hazards, with limits of insurance as follows: (i)
general aggregate limit (other than products-completed operations hazards
coverage), no less than $5,000,000; (ii) products-completed operations hazards
coverage, no less than $2,000,000; and (iii) each liability occurrence, no less
than $2,000,000. Such insurance coverage shall (in the case insurance coverage
obtained by Nomaco) name RBX as an additional insured-broad form vendor.
Additionally, such insurance coverage shall provide that it will not be canceled
or amended except after thirty days' prior written notice to the other party.
Upon receipt of a written request, each party shall deliver to the other party a
certificate of insurance satisfactory to such other party evidencing the
existence of such insurance coverage, such delivery to be made (A) upon the
execution and delivery hereof and (B) at least ten days prior to the expiration
of any such insurance coverage.
5. Sales to Customers.
(a) Sales. All sales of Products shall be consummated through transactions
between Nomaco and customers (and RBX shall not be a party to any such sales
transactions).
(b) Orders. All orders shall be submitted to, and are subject to written
acceptance by Nomaco at Nomaco's offices in Zebulon, North Carolina, or any
other location designated by Nomaco. Nomaco may reject any order in its sole
discretion for any reason, including, without limitation, due to prices, freight
or other economic terms relating to such order, and no such rejection of any
order or orders by Nomaco shall constitute a breach of this Agreement or be
deemed bad faith conduct by Nomaco. Nomaco may, in its sole discretion, after
consultation with RBX, accept or reject any order and establish minimum orders
and (subject to the conditions set forth in Section 5(d)) credit restrictions.
(c) Pricing. * .
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(d) Terms of Sale. All sales of Products by Nomaco shall be subject to
Nomaco's standard terms and conditions of sale as in effect from time to time
(the "Terms and Conditions of Sale"). Nomaco's current Terms and Conditions of
Sale are set forth on Exhibit J attached hereto. The Terms and Conditions of
Sale may be modified by Nomaco in its sole discretion, after consultation with
RBX, upon six (6) months written notice to RBX, or earlier by mutual agreement
of the parties.
(e) Limited Product Warranty. The only Product warranty given by Nomaco is
the standard Nomaco limited warranty to customers contained in the Terms and
Conditions of Sale (the "Limited Warranty"). EXCEPT FOR THE LIMITED WARRANTY TO
CUSTOMERS CONTAINED IN THE TERMS AND CONDITIONS OF SALE, NOMACO MAKES NO
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY
LAW, OUT OF ANY COURSE OF DEALING OR PERFORMANCE, CUSTOM, INDUSTRY STANDARD OR
OTHERWISE, AS TO ANY MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE
PRODUCTS, THE CONDITION, QUALITY, SAFETY, PERFORMANCE OR RESULTS OF THE
PRODUCTS, THEIR MERCHANTABILITY OR THEIR FITNESS FOR ANY PARTICULAR PURPOSE, ALL
OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE FOREGOING, NOMACO
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND TO RBX RELATING TO THE
PRODUCTS. RBX shall inform each of its customers for the Products of Nomaco's
Limited Warranty; provided, however, that RBX shall not make or give any other
representation, warranty, guaranty or assurance regarding the Products or the
condition, quality, safety, performance, merchantability or fitness for a
particular purpose of the Products.
6. * .
(a) * .
(b) * .
(c) * .
(d) * .
(e) * .
7. Exclusivity; Non-Competition. During the term of this Agreement, except
for limited manufacturing and sales of RBX Products and Products in accordance
with Sections 3(b) and 3(c) and except for the manufacturing, marketing,
distribution and sales of New Products or raw materials used in the manufacture
thereof to the extent permitted under Section 3(g), RBX shall not, directly or
indirectly, alone, through any of its affiliates or any Business Acquired by
RBX, or together with or on behalf of any other Person, including as a
shareholder, member, manager, partner, owner, joint venturer, licensor (or
sublicensor), licensee (or sublicensee), investor, lender, agent, representative
or consultant of, for or to another Person, (a) engage in manufacturing of any
Products (or any products competitive with the Products) in or for the Markets
(it being agreed by the parties that all existing and future RBX opportunities
for Product and competitive product sales in the Markets shall be manufactured
exclusively by Nomaco except as otherwise provided in Sections 3(b), 3(c) and
3(g)); (b) market, distribute, sell or promote any Products (or any products
competitive with the Products) in or for the Markets
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other than Products manufactured by Nomaco pursuant to this Agreement; (c)
market, distribute, sell or promote polyethylene products, or other raw
materials, to any Person whom RBX has reason to know intends to use, or to
distribute or sell to any other Person whom RBX has reason to know intends to
use, such polyethylene products or other raw materials in the manufacture of
Products (or any products competitive with the Products) in or for the Markets;
or (d) market, distribute, sell or promote any extruders or other equipment used
in the manufacture of Products, to any other Person from the date hereof until
January 1, 2003, and thereafter to any Person whom RBX has reason to know
intends to use, or to distribute or sell to any other Person whom RBX has reason
to know intends to use, such extruders or other equipment in the manufacture of
Products (or any products competitive with the Products) in or for the Markets.
During the term of this Agreement, except for the manufacturing, marketing,
distribution and sales of New Products or raw materials used in the manufacture
thereof to the extent permitted under Section 3(g), Nomaco shall not, directly
or indirectly, alone, through any of its affiliates or any Business Acquired by
Nomaco, or together with or on behalf of any other Person, including as a
shareholder, member, manager, partner, owner, joint venturer, licensor (or
sublicensor), licensee (or sublicensee), investor, lender, agent, representative
or consultant of, for or to another Person, sell any Products (or any products
competitive with the Products) in or for the Markets other than through RBX
pursuant to this Agreement. * .
8. Intellectual Property. RBX acknowledges and agrees that Nomaco owns and
shall retain sole and exclusive ownership, now and in the future, in all
patents, copyrights, trademarks, service marks, trade names, trade secrets,
inventions, discoveries, ideas, technologies, know-how, designs, specifications,
formulae, works of authorship and other intellectual property rights relating to
the Products (collectively, the "Intellectual Property"). Except for the limited
right to use the Nomaco Marks granted in Section 4(g), nothing in this Agreement
shall be construed to grant RBX any license or other right, title or interest in
or to any Intellectual Property. RBX agrees not to do anything to infringe upon,
harm or contest the validity of any Intellectual Property or any rights of
Nomaco therein. RBX further agrees to promptly notify Nomaco if it becomes aware
of any infringement of any Intellectual Property. Except for the limited right
to use the RBX Marks granted in Section 4(g), nothing in this Agreement shall be
construed to grant Nomaco any license or other right, title or interest in or to
any of the RBX Marks. Nomaco agrees not to do anything to infringe upon, harm or
contest the validity of the RBX Marks or any rights of RBX therein. Nomaco
further agrees to promptly notify RBX if it becomes aware of any infringement of
any of the RBX Marks.
9. Indemnification.
(a) Indemnification by RBX. RBX agrees to indemnify and hold Nomaco, its
directors, officers, employees, agents and representatives, harmless from and
against any and all Losses in any manner arising out of, relating to or in
connection with (i) a breach by RBX of any of its representations, warranties or
agreements contained in this Agreement or the Exhibits attached hereto; (ii) the
design, manufacturing, sales or marketing of the RBX Products or any other
products (including any other Products) manufactured by RBX at any time; or
(iii) the sales or marketing of the Products.
(b) Indemnification by Nomaco. Nomaco agrees to indemnify and hold RBX, its
directors, officers, employees, agents and representatives, harmless from and
against any and all Losses in any manner arising out of, relating to or in
connection with (i) a breach by Nomaco
11
of any of its representations, warranties or agreements contained in this
Agreement or the Exhibits attached hereto; or (ii) a customer claim against RBX
regarding the design or manufacturing of the Products or the failure of any
Product to meet the Product specifications established with respect thereto by
Nomaco pursuant to Section 3(e) hereof.
(c) Indemnification Procedures for Third Party Claims.
(i) If a third party commences a lawsuit or arbitration (a "Third-Party
Claim") against any Person (the "Indemnified Party") with respect to any matter
that the Indemnified Party might make a claim for indemnification against any
party (the "Indemnifying Party") under this Section 9, then the Indemnified
Party must notify the Indemnifying Party thereof in writing of the existence of
such Third-Party Claim and must deliver copies of any documents served on the
Indemnified Party with respect to the Third-Party Claim; provided, however, that
any failure to notify the Indemnifying Party or deliver copies will not relieve
the Indemnifying Party from any obligation hereunder unless (and then solely to
the extent) the Indemnifying Party is materially prejudiced by such failure.
(ii) Upon receipt of the notice described in Section 9(c)(i), the
Indemnifying Party will have the right to defend the Indemnified Party against
the Third-Party Claim with counsel reasonably satisfactory to the Indemnified
Party so long as (A) within ten (10) days after receipt of such notice, the
Indemnifying Party notifies the Indemnified Party in writing that the
Indemnifying Party will, subject to the limitations of this Section 9, indemnify
the Indemnified Party from and against any Losses the Indemnified Party may
incur arising out of, relating to or in connection with the Third-Party Claim,
(B) the Indemnifying Party provides the Indemnified Party with evidence
reasonably acceptable to the Indemnified Party that the Indemnifying Party will
have the financial resources to defend against the Third-Party Claim and fulfill
its indemnification obligations hereunder, (C) the Indemnifying Party is not a
party to the applicable proceeding or the Indemnified Party has determined in
good faith that there would be no conflict of interest or other inappropriate
matter associated with joint representation, (D) the Third-Party Claim does not
involve, and is not likely to involve, any claim by any governmental body or
authority, (E) the Third-Party Claim involves only money damages and does not
seek an injunction or other equitable relief, (F) settlement of, or an adverse
judgment with respect to, the Third-Party Claim is not, in the good faith
judgment of the Indemnified Party, likely to establish a precedential custom or
practice adverse to the continuing business interests of the Indemnified Party,
(G) the Indemnifying Party conducts the defense of the Third-Party Claim
actively and diligently and (H) the Indemnifying Party keeps the Indemnified
Party apprised of all developments, including settlement offers, with respect to
the Third-Party Claim and permits the Indemnified Party to participate in the
defense of the Third-Party Claim.
(iii) So long as the Indemnifying Party is conducting the defense of
the Third-Party Claim in accordance with Section 9(c)(ii), (A) the Indemnifying
Party will not be responsible for any attorneys' fees incurred by the
Indemnified Party regarding the Third-Party Claim (other than attorneys' fees
incurred prior to the Indemnifying Party's assumption of the defense pursuant to
Section 9(c)(ii)) and (B) neither the Indemnified Party nor the Indemnifying
Party will consent to the entry of any judgment or enter into any settlement
with respect to the Third-Party Claim without the prior written consent of the
other party, which consent will not be withheld unreasonably.
12
(iv) If any condition in Section 9(c)(ii) is or becomes unsatisfied,
(A) the Indemnified Party may defend against, and consent to the entry of any
judgment or enter into any settlement with respect to, the Third-Party Claim in
any manner it may deem appropriate (and the Indemnified Party need not consult
with, or obtain any consent from, the Indemnifying Party in connection
therewith), (B) the Indemnifying Party will reimburse the Indemnified Party
promptly and periodically (but no less often than monthly) for the costs of
defending against the Third-Party Claim, including attorneys' fees and expenses,
and (C) the Indemnifying Party will remain responsible for any Losses the
Indemnified Party may incur relating to or arising out of the Third-Party Claim
to the fullest extent provided in this Section 9.
10. Limitation of Liability. EXCEPT FOR BODILY INJURY OR DEATH OF A PERSON
(INCLUDING ANY CLAIM UNDER SECTION 9 TO THE EXTENT RELATING THERETO), NEITHER
PARTY SHALL IN ANY EVENT BE LIABLE UNDER ANY CIRCUMSTANCES, WHETHER BASED IN
CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, FOR ANY
SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOSSES ARISING FROM
THIS AGREEMENT, THE PRODUCTS OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOST
PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
OR LOSSES.
11. Confidentiality.
(a) Confidential Information. Each party acknowledges that it may receive
or receive access to Confidential Information of the other party in connection
with this Agreement. Each party agrees to hold in confidence and not to,
directly or indirectly, use or disclose to any other person any Confidential
Information of the other party, except to the extent expressly permitted
hereunder in connection with the performance of this Agreement, including,
without limitation, to reverse engineer or attempt to reverse engineer any
products manufactured by the other party. Each party may disclose Confidential
Information of the other party to its lenders, employees, advisors and
representatives who have a need to know such Confidential Information in
connection with the transactions described herein and who agree to be bound by
the terms hereof; provided, however, that each party agrees that a breach of
this Section by any of its lenders, employees, advisors or representatives shall
constitute a breach by such party.
(b) Return of Confidential Information. Upon the termination of this
Agreement for any reason, each party shall return to the other party all
Confidential Information of the other party.
(c) Duration. The obligations of the parties under this Section shall
survive the termination of this Agreement for a period of five (5) years, except
that the obligations of the parties under this Section shall survive the
expiration of such five (5) year period and thereafter continue to remain in
effect with respect to Confidential Information that is a trade secret under
applicable law.
12. Expansion of Business; Participation Right; Acquisition Transition
Plan.
(a) Acquisition of Competitor by RBX or Nomaco. If (i) RBX Acquires a
Business * that is competitive with the business of RBX contemplated by this
Agreement, or (b) Nomaco Acquires a Business * that is competitive with the
business of Nomaco contemplated by this
13
Agreement, then from and after the date of any such Acquisition, (y) if such
Business is Acquired by RBX, such Business shall be regarded as an integral part
of RBX, and shall join RBX in conducting the sales and marketing activities of
RBX described herein, or (z) if such Business is Acquired by Nomaco, such
Business shall be regarded as an integral part of Nomaco, and shall join Nomaco
in conducting the manufacturing activities of Nomaco described herein. In either
such case, the party Acquiring such Business (i.e. RBX or Nomaco, as the case
may be) shall, upon request of the other party hereto, cause such Business to
join as a party to this Agreement and agree to be bound by the same obligations
as the party Acquiring such Business.
(b) * .
(c) Acquisition Transition Plan. If either party closes an Acquisition,
then the parties shall promptly negotiate in good faith the terms of an
acquisition transition plan to address any transition issues relating to each
party's continuing performance of its obligations under this Agreement,
including, without limitation, any divestiture that may be required by the party
making such Acquisition in order to comply with the terms of Section 7.
13. Representations and Warranties.
(a) Representations and Warranties of RBX. RBX represents and warrants to,
and covenants and agrees with, Nomaco that (i) the execution, delivery and
performance of this Agreement by RBX has been duly and validly authorized in
accordance with all applicable laws; (ii) RBX will perform its obligations
hereunder in compliance with all applicable laws, rules and regulations; (iii)
the execution, delivery and performance of this Agreement by RBX will not
violate any right of, or breach any obligation to, any third party under any
agreement or arrangement between it and any other Person; (iv) * ; and (v) all
of the financial and other information set forth or referenced on Exhibit K
attached hereto relating to the Insulation Division has been provided by RBX to
Nomaco, is true and correct in all material respects and, with respect to the
subject matter contained therein, does not omit to state any material fact
necessary to make the information therein not misleading.
(b) Representations and Warranties of Nomaco. Nomaco represents and
warrants to, and covenants and agrees with, RBX that (i) the execution, delivery
and performance of this Agreement by Nomaco has been duly and validly authorized
in accordance with all applicable laws; (ii) Nomaco will perform its obligations
hereunder in compliance with all applicable laws, rules and regulations; (iii)
the execution, delivery and performance of this Agreement by Nomaco will not
violate any right of, or breach any obligation to, any third party under any
agreement or arrangement between it and any other Person; and (iv) all of the
financial and other information set forth or referenced on Exhibit L attached
hereto relating to Nomaco has been provided by Nomaco to RBX, is true and
correct in all material respects and, with respect to the subject matter
contained therein, does not omit to state any material fact necessary to make
the information therein not misleading. In addition to the foregoing, the
parties acknowledge that, following the execution of this Agreement by the
parties, Nomaco intends to seek working capital financing to finance its
activities contemplated under this Agreement; however, such financing is not in
place at this time and no representation or warranty is given by Nomaco as to
the availability and/or timing of such financing.
14. Term; Termination; Effect of Termination.
14
(a) Term. The initial term of this Agreement shall commence on the date
hereof and shall continue for a period of twenty (20) years (the "Initial
Term"), unless earlier terminated in accordance with Section 14(b). Unless
earlier terminated in accordance with Section 14(b), upon the expiration of the
Initial Term, this Agreement shall be automatically renewed for successive
twenty (20) year terms, unless either party shall deliver to the other party
notice of non-renewal at least twenty-four (24) months prior to the expiration
of the Initial Term or the applicable renewal term, as the case may be.
(b) Termination. This Agreement may be terminated as follows: (i) by either
party in the event that the other party breaches or fails to perform any of its
obligations under this Agreement and such breach or failure continues for a
period of thirty (30) days after receipt of written notice thereof from the
non-breaching party; (ii) by either party if the other party (A) is or becomes
insolvent, (B) is or becomes a party to any bankruptcy or receivership
proceeding or any similar action affecting its financial condition or property,
if such proceeding (if not filed or initiated by such other party) has not been
dismissed within thirty (30) days, or (C) makes a general assignment for the
benefit of creditors; (iii) * ; (iv) * ; (v) by RBX if RBX shall become entitled
to terminate the Other Agreement pursuant to subsections 14(b)(i), 14(b)(ii) or
14(b)(iii) thereof; (vi) by Nomaco if RBX terminates the Other Agreement; (vii)
by Nomaco if Nomaco K-Flex shall become entitled to terminate the Other
Agreement pursuant to subsections 14(b)(i), 14(b)(ii) or 14(b)(iv) thereof;
(viii) by RBX if Nomaco K-Flex terminates the Other Agreement; or (ix) by the
Other Party if and when permitted by Section 12(b).
(c) Effect of Termination. Upon the termination of this Agreement for any
reason, all of the rights and obligations of the parties hereunder shall
automatically terminate, except that (i) if this Agreement is terminated by RBX
pursuant to Section 14(b)(iii) * , the rights and obligations of the parties
hereunder shall continue for a period of eighteen (18) months following the date
of delivery of notice of such termination in the same manner as applicable prior
to termination * ; (ii) * ; and (iii) the obligations of the parties under
Sections 8, 9, 10, 11, 14 and 15 of this Agreement shall survive the termination
of this Agreement for any reason.
15. Miscellaneous.
(a) Independent Contractor Status. Notwithstanding any provision of this
Agreement, for all purposes of this Agreement, each party shall be and act as an
independent contractor and not as a partner, joint venturer or agent of the
other party. Nomaco and RBX acknowledge and agree that neither RBX nor any
salesman, employee, agent or representative of RBX shall be an employee,
representative or agent of Nomaco for any purpose whatsoever, that all of RBX's
salesmen, employees, agents and representatives shall be under RBX's exclusive
control and that RBX shall be solely responsible for all such salesmen,
employees, agents and representatives (including payment of all compensation and
benefits of such Persons and payment of all required withholding, unemployment,
social security and other taxes). Neither RBX nor any of its salesmen,
employees, agents or representatives shall make or purport to make any
representation or warranty of any kind relating in any way to the Products that
is not expressly authorized in writing by Nomaco, nor shall RBX or any of the
foregoing Persons have any authority to accept, and shall not in any manner
accept, any offer to purchase Products on behalf of Nomaco or otherwise commit
or bind Nomaco in any way. Nomaco and RBX acknowledge and agree that neither
Nomaco nor any salesman, employee, agent or
15
representative of Nomaco shall be an employee, representative or agent of RBX
for any purpose whatsoever, that all of Nomaco's salesmen, employees, agents and
representatives shall be under Nomaco's exclusive control and that Nomaco shall
be solely responsible for all such salesmen, employees, agents and
representatives (including payment of all compensation and benefits of such
Persons and payment of all required withholding, unemployment, social security
and other taxes).
(b) Foreign Corrupt Practices Act and Export Controls. RBX agrees to comply
with the United States Foreign Corrupt Practices Act and all applicable export
laws, restrictions and regulations of any United States or foreign agency or
authority and not to export or re-export, or allow the export or re-export of,
any product, technology or information it obtains or learns pursuant to this
Agreement in violation of any such laws, restrictions or regulations.
(c) Public Announcements. No press release, public announcement or other
disclosure with respect to this Agreement or the transactions contemplated
hereby shall be issued or made by either party hereto without the prior consent
of the other party, except as may be necessary in the opinion of counsel to
either party to meet the requirements of any applicable law, rule or regulation,
the requirements of any governmental agency or the requirements of any stock
exchange or inter-dealer quotation system on which the securities of such party
or any of its affiliates may be listed.
(d) Expenses. Each party shall bear all costs and expenses incurred in the
negotiation, execution and delivery of this Agreement and in the performance of
its obligations hereunder.
(e) Force Majeure. No party to this Agreement shall be deemed to be in
breach or default of any provisions hereof by reason of delay or failure in the
discharge or performance of any duty or obligation hereunder due to strikes,
lock-outs, natural calamity, war, terrorist activity, government laws or
regulations, civil disorder, government embargoes, force majeure or any other
cause beyond the reasonable control of the party so affected; provided, however,
that the party so affected gives prompt written notice to the other party of the
facts and circumstances relating to any such delay or failure and takes all
commercially reasonable actions within its power to promptly remove the basis
for any such delay or failure, so as to resume such discharge or performance as
soon as possible.
(f) Specific Performance. Each party agrees that a remedy at law for breach
of any of Sections 7, 8 or 11 would be inadequate and that each party shall be
entitled to temporary or permanent injunctive or other equitable relief from a
court of competent jurisdiction preventing any breach or threatened breach
thereof by the other party, which remedy shall be cumulative and in addition to
all other available remedies hereunder, at law or in equity.
(g) Dispute Resolution. Each party agrees that their long term mutual
interests will be best served by effecting a rapid and fair resolution of any
Disputes between the parties relating to this Agreement. Therefore, each party
agrees to use all reasonable efforts to resolve all such Disputes as rapidly as
possible on a fair and equitable basis in accordance with this Section. If
either party has or becomes aware of a Dispute, such party shall promptly notify
the other party in writing. The parties shall meet in person or by telephone
within ten (10) days of delivery of such notice and seek to resolve the Dispute
by negotiation between the appropriate officers of each party, with the
resolution of the Dispute being passed to each officer at the next
16
higher level of authority, in turn. Each successive higher level of authority
shall have fifteen (15) days to resolve the Dispute. Such meetings shall be
attended in person or by telephone by individuals with decision-making authority
to attempt in good faith to negotiate a resolution of the Dispute prior to
pursuing other available remedies. If the parties have not succeeded in
negotiating a resolution of the Dispute within forty-five (45) days after the
first such meeting, the Dispute shall be submitted to non-binding mediation
within sixty (60) days. The mediation shall be conducted by Xxxxxx Xxxxxxxxx (or
if such person is unable or unwilling to serve as the mediator in accordance
with provisions hereof, the mediation will be conducted by such other person as
shall be mutually acceptable to the parties hereto and who shall have experience
in the thermal mechanical insulation industry) in the State of Delaware, U.S.A.
in accordance with the mediation procedures of the American Arbitration
Association ("AAA"). Each of the parties shall pay one-half of the mediator's
fees and expenses. All other costs and expenses related to the mediation,
including, without limitation, attorneys fees and expenses, shall be paid by the
party incurring such cost or expense. If mediation does not reach a settlement
of the Dispute, either party may submit the Dispute for adjudication in any
court of competent jurisdiction described in Section 15(i). Nothing in this
Section shall prevent any party at any time from seeking injunctive relief from
a court of competent jurisdiction in accordance with Section 15(f).
(h) Governing Law. This Agreement shall be governed by the laws of the
State of Delaware, U.S.A., excluding its conflicts of laws principles. The
United Nations Convention on the International Sale of Products is expressly
excluded and shall not apply.
(i) Jurisdiction. Subject to the terms of Section 15(f) and Section 15(g),
each party to this Agreement hereby irrevocably agrees that any legal action or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereunder may be brought in the courts of the State of Delaware,
U.S.A. or in the federal courts sitting in the State of Delaware, U.S.A. and
hereby expressly submits to the personal jurisdiction and venue of such courts
for the purposes hereof and expressly waives any claim of improper venue and any
claim that such courts are an inconvenient forum.
(j) Entire Agreement. This Agreement (together with the Exhibits attached
hereto) constitutes the entire agreement between the parties with respect to the
subject matter hereof and supersedes all prior oral or written agreements
between the parties with respect to such subject matter, including, without
limitation, the Letter of Intent and Term Sheet signed by the parties and dated
February 14, 2002, as amended by the letter agreements signed by the parties and
dated March 7, 2002 and March 28, 2002. All Exhibits attached hereto are hereby
incorporated in this Agreement by reference. The parties acknowledge that a
single set of Exhibits has been used for this Agreement and the Other Agreement.
The parties further acknowledge and agree that the terms of each Exhibit shall
apply with respect to this Agreement to the extent relating to the Products and
activities of the parties covered hereunder (but not to the extent relating
solely to the Other Agreement or to the products or activities covered
thereunder).
(k) Construction. The headings used in this Agreement are used for
convenience only and are not to be considered in interpreting this Agreement.
Any reference in this Agreement to a "Section" or "subsection" refers to a
Section or subsection of this Agreement unless otherwise indicated and any
reference in this Agreement to a "Section" also refers to each subsection
thereof unless otherwise indicated. The word "including" as used in this
Agreement means "including without limitation".
17
(l) Successors and Assigns; Assignment. The terms of this Agreement shall
apply to, be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns. This Agreement shall not be
assigned or transferred by either party without the prior written consent of the
other party, which consent shall not be unreasonably withheld, conditioned or
delayed; provided, however, that subject to the rights of each party under
Section 14(b), either party shall have the right to assign this Agreement
without the other party's consent to any third party which Acquires such party
or, in the case of RBX, the Insulation Division.
(m) Severability. In case any provision of this Agreement shall be invalid,
illegal or unenforceable, it shall to the extent practicable, be modified so as
to make it valid, legal and enforceable and to retain as nearly as practicable
the intent of the parties, and the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
(n) Cumulative Remedies. The rights and remedies of the parties under this
Agreement shall be cumulative (not alternative) and in addition to all other
rights and remedies available to such parties at law or in equity.
(o) Counterparts; Facsimile Execution. This Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument. This Agreement may
be executed by facsimile.
(p) Amendment. No amendment of any provision of this Agreement shall be
valid unless the amendment is in writing and signed by duly authorized
representatives of both parties.
(q) Waivers. No waiver of any provision of this Agreement shall be valid
unless the waiver is in writing and signed by a duly authorized representative
of the waiving party. No waiver by either party of any breach of this Agreement
shall be deemed to extend to any other breach hereunder or affect in any way any
rights arising by virtue of any other such occurrence.
(r) Notices. Notices hereunder shall be in writing, and shall be deemed
effectively given upon personal delivery, or upon confirmed delivery by
facsimile, or on the next day following mailing by a reputable overnight
courier, or on the third day following mailing by registered or certified mail,
return receipt requested, postage prepaid, addressed to the address specified on
the signature page hereto.
(s) No Third Party Beneficiaries. Nothing in this Agreement, express or
implied, is intended to confer upon any third party any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
[The next page is the signature page]
18
IN WITNESS WHEREOF, each of the parties has executed this Agreement as of
the date first written above.
NOMACO INC.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------------------
Xxxxxxx Xxxxxx, Chief Executive Officer
Address: 000 XXX Xxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
RBX INDUSTRIES, INC.
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Xxxxxx X. Xxxxx, Chairman
Address: 0000 XxxxxxXxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Facsimile: (000) 000-0000
19
