AGREEMENT
AGREEMENT
dated as of April 20, 2007 (this “Agreement”), by and between Xxxxxxx Xxxxxxx, a
citizen of Germany (the “Licensor”), Sea Change Group, LLC, a New York limited
liability company (“Sea Change”), and Alltrista Plastics Corporation, d/b/a
Jarden Plastic Solutions, an Indiana corporation (“JPS”).
For
good
and valuable consideration, the receipt and legal adequacy of which is hereby
acknowledged, the parties agree as follows:
1. Reference
is made to that certain Amended and Restated License Agreement dated as of
January 1, 2003 between the Licensor and Sea Change (the “Master License”), with
respect to certain patents for the manufacture and sale of certain variable
flow
dispensers (the “Patents”). Reference is also made to the certain Sublicense
Agreement, dated May 1, 2005 (the “Sublicense”), by and between Sea Change and
Innopump, Inc., a Nevada corporation, d/b/a Versadial, Inc. (“Versadial”),
relating to the rights of Sea Change under the Master License and sublicensing
certain rights under the master License to Versadial.
2. Sea
Change hereby agrees that provided if JPS is not in any default in the
performance or observance of any of its material covenants, obligations and
agreements set forth in the Supply Agreement dated as of even date herewith
(the
“Supply Agreement”), by and between Versadial and JPS, and the Supply Agreement
has been terminated by JPS in accordance with the terms of the Supply Agreement
as the result of the default of Versadial thereunder, at JPS’ sole discretion,
Sea Change agrees to assume the Supply Agreement, and JPS, following such
assumption, shall continue to perform its obligations under the Supply Agreement
for the benefit of Sea Change. Notwithstanding any such assumption by Sea
Change, Sea Change shall not be liable or responsible for any of the obligations
of Versadial under the Supply Agreement or the Amortization Agreement that
existed prior to such assumption, except for any amounts owing by Versadial
to
JPS in respect of (x) the unamortized portion of the Tooling under the
Amortization Agreement and (y) Products manufactured
by JPS pursuant to Purchase Orders issued by
Versadial
under
the Supply Agreement,
which
have not been paid for by Versadial. Such amounts, if any, shall be paid to
JPS
by allowing JPS to recoup such amounts, from future amounts owed by Sea Change
with respect of Products shipped by JPS; provided that there shall be deducted
from the amounts payable to JPS any royalty payments that would have been due
to
Sea Change under the Sublicense in respect of the sale of such Products. Upon
the assumption of the Supply Agreement, Sea Change shall be subrogated to JPS’
claims against Versadial with respect to the
unpaid amounts assumed by Sea Change pursuant to the immediately preceding
sentence. The subrogation of such claims shall not limit any other rights of
JPS
against Versadial under the Supply Agreement with respect to any matter
occurring prior to Sea Change’s assumption of the Supply Agreement.
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3. Notwithstanding
anything set forth in Section 2 hereof, if Sea Change decides not to market
and
sell the Products JPS shall be entitled to continue manufacturing the Products
under the grant of sub-license from Sea Change and assume the marketing and
sale
of the Products for the remainder of the Term of the Supply Agreement; provided
that (i) JPS sells the Products to customers on the same cost structure that
was
being used by Versadial; (ii) JPS pays Sea Change the amount of the royalty
that
will have been payable to Sea Change by Versadial in respect of such future
sales; and (iii) all other amounts received by JPS (including, without
limitation, amounts that would have constituted profit margin to Versadial)
shall be retained by JPS and credited to amounts owing under the Amortization
Agreement; and provided, further, that after the amounts owing in respect of
(x)
the unamortized portion of the Tooling under the Amortization Agreement and
(y)
unpaid amounts in respect of Products manufactured for Versadial pursuant to
Purchase Orders issued by Versadial under the Supply Agreement have been paid,
all such additional amounts in the nature of profit margin shall be paid to
Sea
Change.
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4. The
Licensor hereby agrees that, provided that JPS is not in any default of any
of
its material covenants, obligations or agreements set forth in the Supply
Agreement, and the Supply Agreement has been terminated by JPS in accordance
with the terms of the Supply Agreement as a result of a default by Versadial
and/or Sea Change thereunder, and at JPS’ sole discretion, the Licensor or an
entity controlled by the Licensor shall grant JPS the intellectual property
rights necessary to manufacture in accordance with the Supply Agreement and
the
Licensor shall assume the Supply Agreement , and JPS, following such assumption,
shall continue to perform its obligations under the Supply Agreement for the
benefit of the Licensor or such entity. Notwithstanding any such assumption
by
the Licensor, that the Licensor shall not be liable or responsible for any
of
the obligations of Versadial or Sea Change under the Supply Agreement or the
Amortization Agreement that existed prior to such assumption, except for any
amounts owing by Versadial or Sea Change to JPS in respect of (x) the
unamortized portion of the Tooling under the Amortization Agreement and (y)
Products manufactured
by JPS pursuant to Purchase Orders issued by
Versadial
or Sea
Change
under
the Supply Agreement,
which
have not been paid for by Versadial or Sea Change. Such amounts, if any, shall
be recouped from future amounts owed by the Licensor or such entity with respect
to Products shipped by JPS; provided that there shall be deducted from the
amounts payable to JPS any royalty payments that would have been due to Sea
Change under the Sublicense in respect of the sale of such Products. Upon the
assumption of the Supply Agreement, the Licensor shall be subrogated to JPS’
claims against Versadial or Sea Change with respect to the
unpaid amounts assumed by the Licensor pursuant to the immediately preceding
sentence. The subrogation of such claims shall not limit any other rights of
JPS
against Versadial or Sea Change under the Supply Agreement with respect to
any
matter occurring prior to the Licensor’s assumption of the Supply
Agreement.
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5. If
the
Licensor or such entity does not intend to market and sell the Products during
the then remaining Term of the Supply Agreement as contemplated by Section
4
hereof, JPS shall be entitled to continue manufacturing the Products and assume
the marketing and sale of the Products until the amounts owing to JPS under
the
Amortization Agreement have been paid; provided that (i) JPS sells
the
Products to
customers on the basis of the same cost structure that was being used by
Versadial; (ii) JPS pay the Licensor the amount of the royalty that would have
been payable to Sea
Change
by
Versadial in respect of such future sales;
and;
(iii)
all other amounts received by JPS (including, without limitation, amounts that
would have constituted profit margin to Versadial) shall be retained by JPS
and
credited to amounts owing under the Amortization Agreement; and
provided, further,
that
after the amounts owing in respect of (x) the unamortized portion of the Tooling
under the Amortization Agreement and (y) unpaid amounts
in respect
of
Products manufactured
by JPS, pursuant to Purchase Orders issued by Versadial or Sea Change under
the
Supply Agreement,
have
been paid, all such additional amounts in nature of the profit margin shall
be
payable to the Licensor.
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6. If
the
Licensor or an entity controlled by the Licensor assumes the Supply Agreement
as
contemplated by Section 4 hereof or JPS assumes the sales and marketing of
the
Products as contemplated by Section 5 hereof, the Licensor shall grant a license
to JPS, on a non-exclusive basis, of the intellectual property rights necessary
to manufacture the Products in accordance with the Supply Agreement for the
remainder of the Term of the Supply Agreement.
7. This
Agreement may not be amended, modified or waived, except by an instrument in
writing signed by each of the parties hereto. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assignees (which in the case of JPS, shall be limited to its
permitted assignors under the Supply Agreement).
8. This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York, without regard to any of its conflicts of law provisions
which would result in the application of the laws of another
jurisdiction.
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9. Capitalized
terms used herein which are not defined in this Agreement, shall have the
meanings herein which are given to such terms in the Supply
Agreement.
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IN
WITNESS WHEREOF, the parties have executed this Agreement as of date first
above
written.
/s/
Xxxxxxx Xxxxxxx
Xxxxxxx
Xxxxxxx
SEA
CHANGE GROUP, LLC
By:/s/
Xxxxxxxx Xxxxxxxxx
Name:
Xxxxxxxx Xxxxxxxxx
Title:
Manager
ALLTISTRA
PLASTICS CORPORATION
d/b/a
JARDEN PLASTIC SOLUTIONS
By:/s/Xxxxx
Xxxxx
Name:
Xxxxx Xxxxx
Title:
President
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