Exhibit 10.7
ELF Supply Agreement
between
Spectra Science Corporation
and
Albany International Corp.
Supply Agreement
This Agreement is made and entered into as of November __, 2000 between
Spectra Science Corporation (hereinafter "SPECTRA"), a Delaware corporation
having its principal place of business at 000 Xxxxx Xxxx Xxxxxx, Xxxxx 000,
Xxxxxxxxxx, Xxxxx Xxxxxx 00000, and Albany International Corp. (hereinafter
"ALBANY"), a Delaware corporation having its principal address at Xxxx Xxxxxx
Xxx 0000, Xxxxxx, Xxx Xxxx 00000.
INTRODUCTION
WHEREAS, SPECTRA has designed and developed certain dispersed laser
technology for use in garment and textile identification, on which technology
the Licensed Product, as defined herein, is based;
WHEREAS, ALBANY wishes to manufacture the Licensed Product on behalf of
SPECTRA, pursuant to rights granted to ALBANY by SPECTRA under the License
Agreement dated as of November __, 1997 between SPECTRA and ALBANY; and
WHEREAS, SPECTRA wishes to purchase, and ALBANY is willing to supply, the
Licensed Product to SPECTRA, in accordance with the terms and conditions set
forth herein.
NOW THEREFORE, in consideration of the foregoing premises, the parties
agree as follows:
ARTICLE I
Definitions
1.1 "Agreement" shall mean this Supply Agreement, as amended from time to
time.
1.2 "Annual Production Limit" shall mean [***] pounds of Licensed
Product in any calendar year during the term of this Agreement.
[*] = Information redacted pursuant to a confidential treatment request.
An unredacted version of this exhibit has been filed separately with
the Commission.
1
1.3 [***]
1.4 "Capital Contribution" shall have the meaning set forth in Section
3.4 hereof.
1.5 "Effective Date" shall mean the effective date of this Agreement as
set forth on the first page hereof.
1.6 "License Agreement" shall mean that certain License Agreement dated
as of November __, 1997 by and between SPECTRA and ALBANY.
1.7 "Licensed Product" shall mean [***], as described in greater detail by
the Product Specifications attached hereto as Exhibit A.
1.8 "Licensed Product Purchase Price" shall have the meaning set forth in
Section 3.1 hereof.
1.9 The following terms (and any other capitalized terms used but not
defined herein) shall have the definitions as set forth in the License
Agreement:
Affiliate
ALBANY Technical Information
Due Diligence
SPECTRA Technical Information
ARTICLE II
Sale and Purchase of Licensed Product
2.1 Supply of SPECTRA Requirements. Subject to the Annual Production
Limit, ALBANY shall use Due Diligence to supply to SPECTRA and its Affiliates
and sublicensees such quantities of Licensed Product as SPECTRA may order in
accordance herewith. SPECTRA
[*] = Information redacted pursuant to a confidential treatment request.
An unredacted version of this exhibit has been filed separately with
the Commission.
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shall purchase that portion of its requirements of Licensed Product from ALBANY
that do not exceed the Annual Production Limit. To the extent that SPECTRA's
requirements of Licensed Product exceed the Annual Production Limit, SPECTRA
shall be free to seek a second source of supply of the Licensed Product.
2.1.1 SPECTRA Option to Supply [***]. SPECTRA shall have the option
to supply ALBANY with all of ALBANY's requirements for [***] (for example,
[***]) for use in connection with ALBANY's manufacture and supply of
Licensed Product to SPECTRA.
2.2 [Supply of ALBANY Requirements. SPECTRA shall use Due Diligence to
supply to ALBANY and its Affiliates and sublicensees such quantities of laser
readers and reading devices for use with Licensed Product as ALBANY may order in
accordance herewith. Purchase and delivery terms and conditions shall be as
agreed to in good faith by the parties.]
2.3 Quantity
2.3.1 Subject to subsection 2.3.2, SPECTRA shall provide ALBANY
with annual purchase orders for Licensed Product, specifying for each
calendar year the quantities of Licensed Product to be manufactured and
shipped by ALBANY within that year; provided, however, that the minimum
quantity of Licensed Product ordered by SPECTRA for any given year shall
not be less than the applicable quantity for that year set forth on Exhibit
B to this Agreement, and the maximum quantity ordered by SPECTRA for any
year shall not exceed the Annual Production Limit. SPECTRA shall provide
each purchase order to ALBANY not less than [***] prior to the
commencement of the timeframe required by ALBANY to produce the quantity of
the Licensed Product specified by SPECTRA. For purposes of this section
2.3.1., the
[*] = Information redacted pursuant to a confidential treatment request.
An unredacted version of this exhibit has been filed separately with
the Commission.
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timeframe required by ALBANY to produce Licensed Product shall be equal to
[***] of Licensed Product. By way of example only, if SPECTRA provides a
purchase order for [***] pounds of Licensed Product, the purchase order
must be provided not less than [***] plus [***] prior to the end of the
year in which delivery is to be made. All orders for Licensed Product to be
purchased hereunder shall be placed on purchase order form in a form to be
agreed to by the parties. In the event of any inconsistency between this
Agreement and the terms of any such purchase order, the terms of this
Agreement shall prevail.
2.3.2 Notwithstanding any other provision of this Section 2.3, the
purchase order for Licensed Product for [***] shall be in the form attached
to this Agreement as Exhibit C.
2.4 Delivery. All Licensed Product delivered to SPECTRA shall be F.O.B.
ALBANY's plant, Mansfield, Massachusetts. All Licensed Product shall be shipped
by ALBANY for SPECTRA's receipt by the end of the calendar year specified in the
purchase order received from SPECTRA pursuant to the terms of Section 2.3.
ALBANY shall assist SPECTRA in arranging any desired insurance (in amounts that
SPECTRA shall determine) and transportation to any destinations specified in
writing by SPECTRA. All customs duties, costs, taxes, insurance premiums and
other expenses relating to such transportation and delivery shall be at
SPECTRA's expense. ALBANY shall provide customary shipping documentation in
accordance with that requested in SPECTRA's purchase order, as well as such
other usual and customary documentation relating to the material shipped as
SPECTRA may reasonably request in writing for each shipment. ALBANY shall
package Licensed Product for shipment hereunder
[*] = Information redacted pursuant to a confidential treatment request.
An unredacted version of this exhibit has been filed separately with
the Commission.
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in accordance with all applicable laws in the United States. ALBANY will use Due
Diligence to honor any purchase order for Licensed Product received from
SPECTRA, in addition to those submitted in accordance with Section 2.4 above,
which relates to additional supplies of Licensed Product being purchased by
SPECTRA to replace supplies lost or damaged in shipment from ALBANY.
ARTICLE III
Price and Payments
3.1 Payments to ALBANY from SPECTRA.
3.1.1 The Licensed Product Purchase Price during the term of this
Agreement shall be [***] of Licensed Product produced and sold by ALBANY to
SPECTRA, provided however, that in the event the quantity of Licensed
Product ordered by SPECTRA, within the limitations of the Annual Production
Limit, increases to such a point that ALBANY shall recognize an economy of
scale in the production of the Licensed Product, the parties shall
renegotiate the Licensed Product Purchase Price in good faith, based on a
post-tax internal rate of return to ALBANY [***], taking into account any
actual Capital Contributions made by ALBANY prior to such time.
3.1.2 SPECTRA shall make monthly progress payments to ALBANY in an
amount equal to the Licensed Product Purchase Price multiplied by the
number of pounds of Licensed Product produced by ALBANY during the
preceding month. The amount of Licensed Product produced by ALBANY during a
given month shall be determined prior to the end of each calendar month
pursuant to an inventory assessment to be conducted in good faith by ALBANY
in a manner mutually agreeable to the parties, and payment shall
[*] = Information redacted pursuant to a confidential treatment request.
An unredacted version of this exhibit has been filed separately with
the Commission.
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be due within thirty (30) days of receipt by SPECTRA from ALBANY of such
determination.
3.2 [Payments from ALBANY to SPECTRA. SPECTRA shall charge prices for
laser readers and reading devices which are no greater than those it charges
other customers for similar products with comparable wavelength, energy fluence,
lifetime and speed. All SPECTRA readers will be comparable in price, features
and quality to readers available from other suppliers. Payments terms and
conditions shall be as agreed to in good faith by the parties.]
3.3 Capital Contributions. In accordance with, and subject to the dollar
limitations set forth in, Sections 3.3.1 and 3.3.2, SPECTRA and ALBANY shall
each contribute the capital necessary to purchase the equipment and services
required to fulfill the obligations of this Agreement which are listed on
Exhibit D hereto (a "Capital Contribution"). Any Capital Contribution required
to be made by SPECTRA pursuant to this Section 3.3 shall be paid to ALBANY no
later than 30 days from the date of ALBANY's binding written commitment with a
supplier of capital equipment or services with respect to the same. It is
estimated by the parties that the total Capital Contribution necessary to
fulfill the obligations of this Agreement is [***], however, neither party makes
any representation that this estimate will not be exceeded.
3.3.1 Capital Contribution of SPECTRA. SPECTRA shall contribute
[***] of the capital required to fulfill the obligations of
this Agreement, provided however, that in no event shall SPECTRA's
obligations under this Section 3.3 exceed [***].
[*] = Information redacted pursuant to a confidential treatment request.
An unredacted version of this exhibit has been filed separately with
the Commission.
6
3.3.2 Capital Contribution of ALBANY. ALBANY shall contribute
[***] of the capital required to fulfill the obligations of this
Agreement, provided however, that in no event shall ALBANY's
obligations under Section 3.3 exceed [***].
ARTICLE IV
Quality Control; Nonconformity
4.1 Quality Control. SPECTRA shall be responsible for quality testing, at
its own expense, with respect to conformity of the Licensed Product with any
Product Specifications set forth on Exhibit A that are not explicitly set out in
the definition of "Licensed Product" in Section 1.7. Quality testing to ensure
compliance with the explicit characteristics set forth in the definition of
"Licensed Product" in Section 1.7 shall be ALBANY's responsibility, at ALBANY's
expense.
4.2 Nonconformity. SPECTRA shall be deemed to have accepted delivery of
Licensed Product in good order and condition, unless SPECTRA has notified ALBANY
in writing of any short delivery or nonconformity in respect of a shipment of
Licensed Product within thirty (30) days following receipt of same by SPECTRA.
Notwithstanding the foregoing, in the case of any nonconformity which is not
readily apparent or discoverable upon reasonable inspection within such
thirty-day period, any claim of nonconformity with respect thereto shall not be
deemed waived and delivery of the Licensed Product shall not be deemed to have
been accepted if SPECTRA notifies ALBANY within forty-eight (48) hours following
the date on which SPECTRA learns of such nonconformity.
4.3 Nonconformity Report. Any claim of nonconformity hereunder shall be
accompanied by a report of analysis of the allegedly nonconforming Licensed
Product prepared
[*] = Information redacted pursuant to a confidential treatment request.
An unredacted version of this exhibit has been filed separately with
the Commission.
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by or on behalf of SPECTRA. If, after analyzing a sample of such Licensed
Product, ALBANY confirms SPECTRA's claim of nonconformity, ALBANY shall, at
SPECTRA's election, replace the nonconforming Licensed Product with conforming
Licensed Product at ALBANY's expense or refund the entire Licensed Product
Purchase Price paid therefore to SPECTRA. Pursuant to written directions from
ALBANY, SPECTRA shall either return the nonconforming Licensed Product to
ALBANY, or destroy the same, in each case, at ALBANY's expense. If ALBANY's
analysis does not confirm SPECTRA's claim of nonconformity, the parties shall
commence good faith discussions with a view to resolving the issue.
4.4 Survival of Indemnification and Warranty. Notwithstanding anything to
the contrary contained in this Article IV, ALBANY's warranties and
indemnification obligations hereunder shall survive the failure by SPECTRA to
reject any Licensed Product.
ARTICLE V
Term and Termination
5.1 Term. Unless earlier terminated pursuant to this Article V, this
Agreement shall extend for the five (5) year period following the Effective Date
of this Agreement.
5.2 Termination.
5.2.1 Termination by Default. If either party materially defaults
in the performance of any material agreement, condition or covenant of this
Agreement or the License Agreement, and such default or noncompliance shall
not have been remedied, or steps initiated to remedy the same to the other
party's reasonable satisfaction, within sixty (60) days (or 15 days in the
case of non-payment) after receipt by the defaulting party of a notice
thereof from the other party, the party not in default may terminate this
Agreement.
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Any right to terminate arising under this Section 5.2 shall be stayed if,
during the relevant cure period, the party alleged to have been in default
shall:
(i) have initiated arbitration in accordance with Section 9.7
below, with respect to the alleged default; and
(ii) be diligently and in good faith cooperating in the prompt
resolution of such arbitration proceedings.
The right of either party to terminate this Agreement shall not be affected in
any way by the failure of such party to take any action with respect to any
prior circumstance or default which may have given rise to a right to terminate.
5.2.2 Termination in the Absence of [***]. In the event that SPECTRA
and [***] shall not have executed the [***] by [***], the parties may elect
to terminate this Agreement, in which case Section 5.3.2 shall apply.
5.3 Financial Obligations in the Event of a Termination by Default.
5.3.1 In the event this Agreement is terminated by SPECTRA in
accordance with Section 5.2, ALBANY shall pay to SPECTRA the residual value
of any Capital Contribution actually paid by SPECTRA, amortized on a [***]
basis from the date of payment of SPECTRA's Capital Contribution.
5.3.2 In the event this Agreement is terminated by ALBANY in
accordance with Section 5.2, SPECTRA shall pay to ALBANY the residual value
of any Capital Contribution actually paid by ALBANY, amortized on a [***]
basis from the date of ALBANY's Capital Contribution.
5.3.3 Upon termination of this Agreement, ALBANY agrees to transfer
any proprietary technology and know-how with respect to manufacture of the
Licensed
[*] = Information redacted pursuant to a confidential treatment request.
An unredacted version of this exhibit has been filed separately with
the Commission.
9
Product, together with the equipment purchased with the parties' Capital
Contributions, for a value to be determined in good faith by the parties,
taking into account all Capital Contributions already made by each side.
5.4 Termination.
Termination of this Agreement for any reason, or expiration of this
Agreement, will not affect (i) obligations which have accrued as of the
effective date of termination or expiration, and (ii) rights and obligations
which, from the context thereof, are intended to survive termination or
expiration of this Agreement.
ARTICLE VI
Confidentiality
6.1 Undertaking. During the term of this Agreement, each party shall keep
confidential, and other than as provided herein shall not use or disclose,
directly or indirectly, any trade secrets, confidential or proprietary
information, or any other knowledge, information, documents or materials, owned,
developed or possessed by the other party, whether in tangible or intangible
form, the confidentiality of which such other party takes reasonable measures to
protect, including but not limited to SPECTRA Technical Information and ALBANY
Technical Information. Each party shall take any and all lawful measures to
prevent the unauthorized use and disclosure of such information, and to prevent
unauthorized persons or entities from obtaining or using such information. Each
party further agrees to refrain from directly or indirectly taking any action
that would constitute or facilitate the unauthorized use or disclosure of such
information. Each party may disclose such information to its officers, employees
and agents, to authorized licensees and sublicensees, and to subcontractors in
connection with the development or manufacture of Licensed Products, to the
extent necessary to enable such parties
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to perform their obligations hereunder or under the applicable license,
sublicense or subcontract, as the case may be; provided that such officers,
employees, agents, licensees, sublicensees and subcontractors have entered into
appropriate confidentiality agreements for secrecy and non-use of such
information which by their terms shall be enforceable by injunctive relief at
the instance of the disclosing party. Each party shall be liable for any
unauthorized use and disclosure of such information by its officers, employees
and agents and any such sublicensees and subcontractors.
6.2 Exceptions. Notwithstanding the foregoing, the provisions of Section
6.1 hereof shall not apply to knowledge, information, documents or materials
which the receiving party can establish conclusively: (i) have entered the
public domain without such party's breach of any obligation owed to the
disclosing party; (ii) have become known to the receiving party prior to the
disclosing party's disclosure of such information to such receiving party; (iii)
are permitted to be disclosed by the prior written consent of the disclosing
party; (iv) have become known to the receiving party from a source other than
the disclosing party other than by breach of an obligation of confidentiality
owed to the disclosing party; (v) are disclosed by the disclosing party to a
third party without restrictions on its disclosure; (vi) are independently
developed by the receiving party without breach of this Agreement; or (vii) are
required to be disclosed by the receiving party to comply with applicable laws
or regulations, to defend or prosecute litigation or to comply with governmental
regulations, provided that the receiving party provides prior written notice of
such disclosure to the disclosing party and takes reasonable and lawful actions
to avoid or minimize the degree of such disclosure.
6.3 Publicity. The timing and content of any press releases or other
public communications relating to this Agreement and the transactions
contemplated herein will, except
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as otherwise required by law, be determined jointly by SPECTRA and ALBANY. No
press release or other public communications or sales material shall refer to
ALBANY without ALBANY's written consent. Neither party hereto nor its
representatives or employees shall make any public disclosure, whether to the
press, stockholders or otherwise, revealing the material non-public terms of
this Agreement or of any amendment hereto without the prior written approval of
the other, provided however, that nothing shall prevent either party hereto from
making such disclosures or statements which in the opinion of counsel are
legally required or may be required in the opinion of such party's certified
public accountant to conform to generally accepted accounting principles. In the
event any such disclosure or statement is required, the disclosing party will
endeavor to give prior written notice to the other party, wherever practicable,
of the proposed disclosure or statement and the reason therefor.
6.4 Survival. The provisions of this Article VI shall survive the
termination of this Agreement. The obligations of confidentiality,
non-disclosure and non-use set forth in this Article VI shall survive the
termination of this Agreement for any reason and shall continue in effect until
the relevant information falls within any of the exceptions provided for in
Section 6.2 above.
ARTICLE VII
Representations and Warranties
7.1 SPECTRA's Representations.
SPECTRA hereby represents and warrants to ALBANY the following:
1. SPECTRA is a corporation organized, validly existing and in corporate
good standing under the laws of Delaware, has all requisite corporate power and
authority to own and
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operate its property and carry on its business and is not required to qualify to
do business in any other jurisdiction.
2. The execution and delivery of this Agreement have been duly and
validly authorized by all necessary corporate action on the part of SPECTRA, and
(assuming valid execution by ALBANY) this Agreement is a valid and binding
obligation of SPECTRA enforceable against it.
3. As of the date of this Agreement, SPECTRA is not a party to any
agreement or understanding, oral or written, which would, in any manner, be
inconsistent with the rights granted herein to ALBANY and shall not, during the
term of this Agreement, enter into any agreement or understanding, oral or
written, nor directly or indirectly engage in any activity which would, in any
manner, be inconsistent with the rights herein granted to ALBANY.
4. SPECTRA represents that any Product Specifications provided to
ALBANY with respect to the Licensed Product shall comply with all applicable
laws of each applicable jurisdiction into which SPECTRA intends to sell the
Licensed Product.
7.2 ALBANY's Representations.
ALBANY hereby represents and warrants to SPECTRA as follows:
1. ALBANY is a corporation organized, validly existing and in
corporate good standing under the laws of Delaware, has all requisite corporate
power and authority to own and operate its property and carry on its business
and is not required to qualify to do business in any other jurisdiction.
2. The execution and delivery of this Agreement has been duly and
validly authorized by all necessary corporate action on the part of ALBANY, and
(assuming valid execution by SPECTRA) this Agreement is a valid and binding
obligation of ALBANY enforceable against it.
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3. As of the date of this Agreement, ALBANY is not a party to any
agreement or understanding, oral or written, which would, in any manner, be
inconsistent with the rights granted herein to SPECTRA and shall not, during the
term of this Agreement, enter into any agreement or understanding, oral or
written, nor directly or indirectly engage in any activity which would, in any
manner, be inconsistent with the rights herein granted to SPECTRA.
4. ALBANY represents and warrants that all Licensed Product
manufactured hereunder shall be free from defects in materials and workmanship
under normal use and service.
5. ALBANY represents and warrants that all Licensed Product delivered
hereunder shall comply in all material respects with, and shall be labeled in
conformity with, the Product Specifications provided by SPECTRA in Exhibit A
hereto.
7.3 Limitations on Liability. THE EXPRESS WARRANTIES STATED ABOVE ARE
THE ONLY WARRANTIES MADE, AND ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, (1) ANY WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OR (2) ANY WARRANTY INCLUDED IN ANY PURCHASE
ORDER, INVOICE, ACKNOWLEDGMENT OR OTHER DOCUMENT RECEIVED BY ONE PARTY FROM THE
OTHER.
ARTICLE VIII
Indemnification
8.1 Indemnification by SPECTRA. Subject to ALBANY's compliance with
its obligations set forth in this Agreement, SPECTRA shall indemnify and hold
ALBANY, its Affiliates and sublicensees and its and their directors, officers,
employees and agents harmless from and against any liability, damage or expense
(including reasonable attorneys' fees and costs
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and other expenses of litigation), resulting from (i) the material breach by
SPECTRA of any of its representations, warranties or covenants contained in this
Agreement, or (ii) the successful enforcement (i.e., a judgment issued by a
court of competent jurisdiction against SPECTRA unappealable or unappealed by
SPECTRA within the time allowed therefor) by ALBANY of its indemnification
rights set forth in clause (i) of this Section 8.1.
8.2 Indemnification by ALBANY. Subject to SPECTRA's compliance with
its obligations set forth in this Agreement, ALBANY shall indemnify and hold
SPECTRA, its Affiliates and its and their directors, trustees, officers,
employees and agents harmless from and against any liability, damage or expense
(including reasonable attorneys' fees and costs and other expenses of
litigation), resulting from (i) the material breach by ALBANY of any of its
representations, warranties or covenants contained in this Agreement; or (ii)
the successful enforcement (i.e., a judgment issued by a court of competent
jurisdiction against ALBANY, unappealable or unappealed by ALBANY within the
time allowed therefor) by SPECTRA of its indemnification rights set forth in
clauses (i) of this Section 8.2.
8.3 Indemnification Procedures. A party (the "indemnitee") which
intends to claim indemnification under this Article VIII shall promptly notify
the other party (the "indemnitor") in writing of the action, claim or liability
with respect to which the claim of indemnification relates. The indemnitee shall
permit, and shall cause its employees and agents to permit, the indemnitor, at
its discretion, to settle any such action, claim or liability, the defense and
settlement of which shall be under the complete control of the indemnitor;
provided, however, that such settlement shall not adversely affect the
indemnitee's rights hereunder or impose any obligations on the indemnitee in
addition to those set forth herein in order for it to exercise those rights. No
such action, claim or liability shall be settled without the prior written
consent of the indemnitor, and
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the indemnitor shall not be responsible for any legal fees or other costs
incurred other than as provided herein. The indemnitee, its employees and agents
shall cooperate fully with the indemnitor and its legal representatives in the
investigation and defense of any action, claim or liability covered by this
indemnification. The indemnitee shall have the right, but not the obligation, to
be represented by counsel of its own selection and expense.
ARTICLE IX
Miscellaneous Provisions
9.1 Waiver. No provision of the Agreement may be waived except in
writing by both parties hereto. No failure or delay by either party hereto in
exercising any right or remedy hereunder or under applicable law will operate as
a waiver thereof, or a waiver of a particular right or waiver of any right or
remedy on any subsequent occasion.
9.2 Force Majeure. Neither party shall be held liable or responsible
to the other party nor be deemed to have defaulted under or breached this
Agreement for failure or delay in fulfilling or performing any term of this
Agreement, other than an obligation to make a payment, when such failure or
delay is caused by or results from fire, floods, embargoes, government
regulations, prohibitions or interventions, war, acts of war (whether war be
declared or not), insurrections, riots, civil commotion's, strikes, lockouts,
acts of God, or any other cause beyond the reasonable control of the affected
party.
9.3 Relationships of the Parties. Both parties are independent
contractors under this Agreement. Nothing contained in this Agreement is
intended nor is to be construed so as to constitute SPECTRA and ALBANY as
partners, agents or joint venturers with respect to this Agreement. Neither
party hereto shall have any express or implied right or authority to assume or
create any obligations on behalf of or in the name of the other party or to bind
the other party
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to any contract, agreement or undertaking with any third party. All contracts,
expenses and liabilities undertaken or incurred by one party in connection with
or relating to the use, development, manufacture, marketing or sale of Licensed
Product shall be undertaken, incurred or paid exclusively by that party, and not
as an agent or representative of the other party.
9.4 Severability. It is the intention of the parties to comply with
all applicable laws domestic or foreign in connection with the performance of
its obligations hereunder. In the event that any provision of this Agreement, or
any part hereof, is found invalid or unenforceable, the remainder of this
Agreement will be binding on the parties hereto, and will be construed as if the
invalid or unenforceable provision or part thereof had been deleted, and the
Agreement shall be deemed modified to the extent necessary to render the
surviving provisions enforceable to the fullest extent permitted by law.
9.5 Government Acts. In the event that any act, regulation, directive,
or law of a government within the Territory, including its departments, agencies
or courts, should make impossible or prohibit, restrain, modify or limit any
material act or obligation of SPECTRA or ALBANY under this Agreement and if any
party to this Agreement is adversely affected thereby, the parties shall attempt
in good faith to negotiate a lawful and enforceable modification to this
Agreement which substantially eliminates the adverse effect; provided that
failing any agreement, in that regard, the party, if any, who is adversely
affected, shall have the right, at its option, to suspend or terminate this
Agreement.
9.6 Assignment. This Agreement may not be assigned or otherwise
transferred by either party without the written consent of the other party
which, in the case of assignment to an Affiliate, shall not be unreasonably
withheld or delayed; provided, however, that either party may, without such
consent, assign this Agreement in connection with the transfer or sale of all or
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substantially all of its business or in the event of its merger or consolidation
with another company. Any purported assignment in violation of the preceding
sentence shall be void. Any permitted assignee shall assume all obligations of
its assignor under this Agreement. No assignment shall relieve either party of
responsibility for the performance of any accrued obligation which such party
then has hereunder.
9.7 Dispute Resolution. Disputes arising out of or relating to any
provision of this Agreement or the breach thereof, which the parties hereto are
unable to resolve, shall be submitted to and be settled in accordance with the
provisions of Article IX of the License Agreement.
9.8 Counterparts. This Agreement may be executed in duplicate both of
which shall be deemed to be originals, and both of which shall constitute one
and the same Agreement.
9.9 Notice. All communications between the parties with respect to any
of the provisions of this Agreement will be sent to the addresses set out below,
or to other addresses as notified by the parties for the purpose of this clause,
by prepaid certified air mail which shall be deemed received by the other party
on the fifth business day following deposit in the mails, or by fax or other
electronic means of communication (which shall be deemed received when
transmitted), with confirmation by letter given by the close of business on the
next following business day:
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if to SPECTRA, at:
Spectra Science Corporation
000 Xxxxx Xxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxx
with a copy to:
Xxxxxxx X. Xxxxx, Esq.
if to ALBANY, at:
Albany International Corp.
XX Xxx 0000
Xxxxxx, Xxx Xxxx 00000
Attn: Xx Xxxx
with a copy to:
Xxxxxxx X. Xxxxx, Xx.
9.10 Headings. The paragraph headings are for convenience only and will
not be deemed to affect in any way the language of the provisions to which they
refer.
9.11 Authority. The undersigned represent that they are authorized to
sign this Agreement on behalf of the parties hereto. The parties each represent
that no provision of this Agreement will violate any other agreement that a
party may have with any other person or company. Each party has relied on that
representation in entering into this Agreement.
9.12 Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts, without regard to the doctrine of conflicts of
laws.
9.13 Entire Agreement. This Agreement, including the Schedules appended
hereto, contains the entire understanding of the parties relating to the matters
referred to herein, and may only be amended by a written document, duly executed
on behalf of the respective parties.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
Date of signature:____________________ Date of signature:____________________
SPECTRA SCIENCE CORPORATION ALBANY INTERNATIONAL CORP.
By: /s/ Xxxxx Xxxxxxx By: /s/ Xxxxxx Xxxx
--------------------------- -----------------------------
Name: Name:
Title: Title:
20
EXHIBIT A
Product Specifications
21
EXHIBIT B
Minimum Orders of Licensed Product by Calendar Year
2001 [***] pounds
2002 [***] pounds
2003 [***] pounds
2004 [***] pounds
2005 [***] pounds
[*] = Information redacted pursuant to a confidential treatment request.
An unredacted version of this exhibit has been filed separately with
the Commission.
22
