EXHIBIT 10.26
AMENDMENT NO. 2 TO ZINC
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OXIDE SUPPLY AGREEMENT
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THIS AMENDMENT NO. 2 TO ZINC OXIDE SUPPLY AGREEMENT is entered into as
of March 17, 2003, entered into by and between BASF CORPORATION, a Delaware
corporation ("BASF") and NANOPHASE TECHNOLOGIES CORPORATION, a Delaware
corporation ("Nanophase").
R E C I T A L S
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A. Nanophase and BASF (as successor-in-interest to Sun Smart, Inc.)
entered into that certain Zinc Oxide Supply Agreement, dated as of September 16,
1999, as amended by that certain Amendment No. 1 to Zinc Oxide Supply Agreement
dated January 2001 (as amended, the "Agreement").
B. BASF and Nanophase desire to amend the Agreement and the Amendment
as set forth herein.
NOW THEREFORE BE IT RESOLVED, for good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto
agree as follows:
1. The "Triggering Event" set forth in Section 5.01(e)(i) of the
Agreement is hereby amended to delete the language in that Section and replace
it with the following language:
"(i) Earnings of Nanophase for the twelve month period ending
on the date of Nanophase's most recent published quarterly financial
statements (calculated in accordance with generally accepted accounting
principles applied on a consistent basis) shall be less than $0 and
cash and cash equivalents of Nanophase at the end of such period
(calculated in accordance with generally accepted accounting principles
applied on a consistent basis) shall be less than $2,000,000;"
2. Section 5.04, entitled "Equipment Purchase Option" shall be modified
to add the following statement: "The parties agree that the equipment mentioned
above in this Section 5.04 shall also include all equipment used in connection
with coating product.
3. A new paragraph is added to Section 5.04. It reads as follows:
"Notwithstanding the above, in the event that BASF decides to
exercise its option to purchase the equipment mentioned above,
Nanophase agrees to immediately commence production of an amount equal
to 9 months of inventory ("Special Inventory") of the Products noted on
Exhibit "A". BASF will purchase this Special Inventory in accordance
with the terms of this Agreement which apply to Product purchased by
BASF. Once BASF has received all of the Special Inventory, the terms of
Section 5.04 shall govern the perfection of BASF's purchase of the
equipment.
4. All other terms and conditions of the Agreement and the Amendment
shall remain in full effect in accordance with their terms.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first set forth above.
Nanophase Technologies Corporation BASF Corporation
By: /s/ Xxxxxx Xxxxx By: /s/ illegible
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Xxxxxx Xxxxx, President Title: illegible
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