RECIPROCAL EXCLUSIVE DEALING AGREEMENT
Agreement made this 11th day of March 1997 between GENTEX OPTICS,
INC. ("Gentex"), a Delaware corporation, with an office at 000 Xxxx Xxxxxx,
Xxxxxxx, XX 00000, ESSILOR INTERNATIONAL COMPAGNIE GENERALE D'OPTIQUE, S.A.
("Essilor"), a limited liability entity known as a Societe Anonyme, with its
commercial seat at 000 xxx xx Xxxxx, Xxxxxxxxx, Xxxxx 00000, Xxxxxx, both on
the one hand, and OAKLEY, INC. ("Oakley"), a Washington corporation with
principal offices at 00 Xxxxxxx, Xxxxxx, XX 00000, on the other hand.
INTRODUCTION
A. Gentex is an indirect, wholly-owned subsidiary of Essilor.
B. Gentex manufactures "Decentered Lenses" (as hereinafter defined),
has heretofore sold Decentered Lenses to Oakley and desires to be the sole
vendor to Oakley and its "Affiliates" (as hereinafter defined) of all their
requirements for Decentered Lenses.
X. Xxxxxx has heretofore purchased substantially all its Decentered
Lenses from Gentex, and during the "Term" (as hereinafter defined) of this
Agreement (and any extension or renewal thereof, as hereinafter provided),
Oakley desires to purchase and to have its Affiliates purchase all of their
respective Decentered Lens requirements from Gentex, except as otherwise
provided herein.
D. Subject to certain exceptions, Gentex is willing to cease
selling Decentered Lenses to any other "Person" (as hereinafter defined).
E. In order to set forth the terms and conditions under which all
the foregoing will occur, the parties do hereby enter into this Agreement,
intending it to be a binding agreement.
1. DEFINITIONS USED IN THIS AGREEMENT.
(a) "Acknowledgment" means a written acknowledgment by
"Seller" (as hereinafter defined) of a written order for "Product" (as
hereinafter defined) given by "Purchaser" (as hereinafter defined).
(b) "Affiliate" of a "Person" (as hereinafter defined)
means any Person which directly or indirectly controls, is controlled by, or
is under common control with such Person. With respect to Essilor or Gentex,
Christian Dalloz, S.A. (a limited
liability entity known as a Societe Anonyme), organized under the laws of the
Republic of France, and its direct and indirect subsidiaries (collectively,
"Dalloz"), will not be deemed an Affiliate thereof.
(c) "Contract Year" means the period commencing with the
"Effective Date" hereof (as hereinafter defined) until the first one-year
anniversary thereof, and each of the three immediately following twelve month
periods.
(d) "Decentered Lenses" means *.
(e) "Delivery Notice" means a written notice from Oakley
to Gentex requesting the delivery by a certain date of specific quantities of
specific Products (by color and geometry) included in a previously or
simultaneously given Purchase Order to the extent that Products, quantities
and delivery dates comply with the provisions of Subsection 3(b) such that
Gentex is not entitled to reject any of them pursuant to said Subsection.
(f) "Effective Date" means the date inserted at the
beginning of this Agreement.
(g) "Exclusivity Termination Notice" means a notice to
Oakley pursuant to and complying with Subsection 2(c) hereof.
(h) "Force Majeure" means an occurrence beyond the
reasonable control of a Person, including, without limitation, fire, strike,
directives of any governmental authority, civil or military, war, insurrection,
riot, embargoes, shortages, delays in transportation, or inability to obtain
necessary labor, materials, or
______________
* Material omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
manufacturing facilities.
(i) "Hard Coat" means *.
(j) "Letter of Intent" means the Letter dated August 26,
1996 from Oakley to the parties hereto and others, as amended from time to
time, relating, among other things, to the subject matter of this Agreement.
(k) "Minimum Purchases" means *. In the event of early
Termination of this Agreement during a Contract Year or Renewal Year, the
Minimum Purchases for such Contract Year or Renewal Year, as the case may be,
shall be prorated.
(l) "Period of Exclusivity" means the period commencing
on the Effective Date and ending on the earlier of the end of the Term or the
effective date of the "Exclusive Termination Notice", in all events subject
to earlier termination as provided in this Agreement.
(m) "Person" means any individual, proprietorship,
partnership, corporation or other entity whether or not of limited liability.
(n) "Plano" means non-glass, non-powered lenses and lens
blanks which are or are intended to be made into non-corrective,
non-ophthalmic, non-powered, non-glass lenses.
(o) "Polarized Decentered Lenses" means Decentered Lenses
that have a polarizing function.
(p) "Product" means any type of Decentered Lens and
Shield sold or requested to be sold by Gentex or any Affiliate thereof to
Oakley or to any Affiliate thereof during the Term.
______________
* Material omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
(q) "Purchaser" means Oakley and any Affiliate of Oakley
that purchases Decentered Lenses or Xxxxxxx from Gentex or any Affiliate of
Gentex.
(r) "Purchase Contract" means the binding agreement
resulting from a Purchase Order for Product and the Acknowledgment thereof,
each complying with this Agreement.
(s) "Purchase Order" means a written order from Purchaser
for Product which order complies with the terms and provisions of this
Agreement, and is given to Gentex or any Affiliate of Gentex but which
Purchase Order shall have no validity unless and until a Delivery Notice is
simultaneously or later provided therefor. Quantities, colors and types of
Product, and delivery dates therefor, contained in the order will only be
considered subject to a Purchase Order to the extent a Delivery Notice for
such quantities, colors, types of Product and delivery dates is provided.
(t) "Renewal Year" means the twelve-month period
immediately following the end of the fourth Contract Year, and each twelve
month period thereafter, commencing on the day following the end of the
fourth Contract Year and each one year anniversary thereof, until this
Agreement is terminated, as hereinafter provided.
(u) "Seller" means Gentex or any Affiliate of Gentex that
sells Product to a Purchaser.
(v) "Shield" means Plano in single or twin lens form
which is used or is designed to be used as a one-piece eye shield.
(w) "Technology" means technology or technical
information in the possession of Gentex or Essilor or their Affiliates not
available from a "Third Person" (as hereinafter defined) which is used
principally in the manufacture of Decentered Lenses, but does not include
Hard Coat, Transition or other coatings, applications or processes (other
than profiling or orienting the Lens) which are undertaken upon or made or
applied to lenses after they have been molded.
(x) "Temporary Basis" means during the periods when
Subsection 4(a) hereof is applicable.
(y) "Term" is defined in Section 21 hereof.
(z) "Third Person" means any Person not an Affiliate of
any party hereto.
(aa) "Transitions-TM- " means a dye or other process
applied to lenses in order to make them photochromic.
(bb) "Unit" means a pair (two) of Decentered Lenses or a
single Shield.
(cc) "Unit Premium" means *.
2. EXCLUSIVE DEALING IN DECENTERED LENSES. Subject to the
remaining provisions of this Agreement, during the Period of Exclusivity:
(a) Oakley and its Affiliates will purchase from Gentex
(or, on a Temporary Basis, from one or more Affiliates of Gentex, as
designated by Gentex), and Gentex will use commercially reasonable best
efforts to sell and supply to Oakley and its Affiliates, all the requirements
of Oakley and its Affiliates for Decentered Lenses (it being understood that
the requirements of Oakley and its Affiliates for Decentered Lenses is
determined solely by them but that Oakley and its Affiliates will not
purchase Decentered Lenses from anyone besides Gentex and its Affiliates,
except as expressly permitted by other provisions of this Agreement);
(b) Neither Gentex, Essilor nor any Affiliate of either
will sell or otherwise supply any Person with Decentered Lenses, except as
expressly permitted by other provisions of this Agreement;
(c) Notwithstanding Subsection (b) above, Gentex may give
notice to Oakley that neither Oakley nor any Affiliate thereof is required to
pay any Unit Premium in respect of Renewal Years following the effective date
of such notice as such date is stated therein ("Exclusivity Termination
Notice"). No Exclusivity Termination Notice can be given prior to the giving
of a "Termination Notice" (as defined in Section 21 hereof) and such
Exclusivity Termination Notice cannot be effective prior to a date which is
six months prior to the effective date of the Termination Notice. Upon the
effective date of the Exclusivity Termination Notice, the obligations of
Gentex, Essilor and their respective Affiliates under Subsection 2(b), and
the obligation of Oakley and its Affiliates to pay Unit Premiums in respect
of Product ordered by Oakley or its Affiliates after such effective date,
shall terminate. However, such Exclusivity Termination Notice will not affect
Oakley's obligations to make the Minimum Purchases in each Renewal Year
during the Term.
(d) Oakley will not manufacture any Decentered Lenses or
purchase any Decentered Lenses from any Person other than Gentex or its
Affiliates, except as provided in Subsection 2(e) and 4(b) hereof.
(e) Notwithstanding the provisions of this Agreement
(including without limitation Subsection 2(a)) to the contrary, Oakley and
its Affiliates (x) may purchase from a Person other than Gentex or its
Affiliates, and may manufacture on its own behalf, Polarized Decentered
Lenses so long as, at the time it commences such purchase or manufacture of
Polarized Decentered Lenses, Gentex has not offered to
______________
* Material omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
Oakley and its Affiliates the opportunity to purchase from Gentex or its
Affiliates Polarized Decentered Lenses of at least the same quality as, and
at no higher price (excluding promotional pricing) than any Polarized
Decentered Lenses that are then being offered to Oakley or its Affiliates
from Third Persons or at no higher price than Oakley can then manufacture
Polarized Decentered Lenses for, as the case may be, and (y) are under no
obligations to purchase Polarized Decentered Lenses from Gentex or any of its
Affiliates; PROVIDED, HOWEVER, that if Oakley or its Affiliates are already
purchasing from others or manufacturing Polarized Decentered Lenses as
permitted by Clause (x) then the provisions of clause (x) permitting such
purchase and manufacture shall no longer apply on the earliest date on which
all of the following events have occurred: (A) Gentex or its Affiliates have
offered Oakley and its Affiliates the opportunity to purchase from Gentex or
its Affiliates a Polarized Decentered Lens that is of at least the same
quality as and no higher in price (excluding promotional pricing) than any
Polarized Decentered Lenses that are then being purchased by Oakley or its
Affiliates from another Person or that are then being manufactured by Oakley
or any of its Affiliates, and (B) Oakley and its Affiliates are not subject
to any obligation to purchase Polarized Decentered Lenses from another
Person. If, at any time, clause (A) above is satisfied, then Oakley hereby
agrees not to renew, or extend the term of, any agreement that may then be in
effect between Oakley and such other Person or enter into a new agreement
with respect to the purchase of Polarized Decentered Lenses which has the
effect of impeding or preventing Oakley and/or any of its Affiliates from
purchasing Polarized Decentered Lenses exclusively from Gentex and/or its
Affiliates. Any agreement with Third Persons and Oakley for the sale of
Polarized Decentered Lenses to Oakley will be provided to Gentex, subject to
such reasonable confidentiality provisions as may be required by such Third
Person, provided, however, all sections of such Agreement affecting the price
to be charged for such Polarized Decentered Lenses shall be disclosed to
Gentex.
3. CONDITIONS TO OAKLEY OBLIGATION TO PURCHASE FROM GENTEX ONLY.
(a) The obligation of Oakley and its Affiliates to
purchase all of their respective requirements of Decentered Lenses from
Gentex, and from any Affiliate of Gentex on a Temporary Basis (and not from
anyone else), which obligation is set forth elsewhere herein, is conditioned
on Gentex supplying Decentered Lenses to Oakley and its Affiliates (A) of a
quality at least as good as those heretofore supplied by Gentex to Oakley;
(B) Gentex charging Oakley and its Affiliates prices therefor established in
substantial accordance with pricing practices of Gentex in effect over the
prior course of dealing between Gentex and Oakley (except for Unit Premiums);
(C) Gentex supplying such Lenses in the quantities specified in and within
the delivery schedule specified in the Delivery Notice forming part of a
Purchase Order, provided that sufficient lead time is given by Oakley to
Gentex therein, consistent with past practice between Oakley and Gentex and
the orders are pursuant to Delivery Notices and Purchase Orders which Gentex
is not entitled to reject pursuant to Subsection 3(b). Gentex is required to
give an Acknowledgment with respect to any portion of a
Purchase Order covered by a Delivery Notice meeting the provisions(including
its provisos) of this Clause (C) within 10 days after receipt of such
Delivery Notice.
(b) As a condition to the obligations of Gentex in
Subsection 3(a) hereof:
(i) Within 10 business days following the
Effective Date, Oakley will supply to Gentex an estimate of its monthly
requirements for Decentered Lenses and Xxxxxxx by geometry and color for the
period March 1, through December 31, 1997 ("Initial Estimate"). Prior to
October 15, 1997, and prior to each October 15th thereafter during the Term,
Oakley will provide Gentex with an estimate of such monthly requirements for
the ensuing calendar year (together with the Initial Estimate, "Annual
Estimates"). The Annual Estimates will be for informational purposes only.
(ii) Within 10 business days following the Effective
Date, Oakley will supply to Gentex an estimate of its monthly requirements by
geometry and color for Decentered Lenses and Xxxxxxx for the three month
period commencing April 1 and ending June 30, 1997 ( "Initial Three Month
Forecast"). No later than the 15th day of each month ("Forecast Date") during
the Term, commencing April 15, 1997, Oakley will provide Gentex with a
forecast of its monthly requirements by geometry and color for Decentered
Lenses and Xxxxxxx during the ensuing 3 month period, commencing with the
first day of the month next succeeding each Forecast Date ("Rolling Three
Month Forecast"); provided, however, that the requirements for each month, in
the aggregate for such month, both as to total Unit requirements and as to
aggregate Units by color may not vary by more than the Capacity Variance or
the Color Variance, as the case may be, from the requirements, if any, for
that month set forth in the immediately preceding Rolling Three Month
Forecast. Initial requirements for a month not appearing in the immediately
preceding Rolling Three Month Forecast may be set by Oakley within the
reasonable expectations of the parties.
"Capacity Variance" shall mean a variance of up to plus or minus 10%
from the total Unit requirements for each month, in the aggregate
for such month, as set forth in the most recent Rolling Three Month
Forecast unless a New Product (as hereinafter defined) is included
within such total Unit requirements in which event the permissible
variance shall be increased from plus or minus 10% to plus or minus
the sum of 10% plus the percentage derived by multiplying 10% by a
fraction, the numerator of which are the number of Units of New
Product contained in such monthly requirements and the denominator
of which is the total Unit requirements for such month set forth
therein.
"Color Variance" shall mean a variance of up to plus or minus 50%
from the requirements for Units of a particular color (in the
aggregate) forming a part of the monthly requirements as set forth
on the most recent Rolling Three Month Forecast.
"New Product" shall mean any Product for which Gentex has assigned,
within six months of the date of the submission of the applicable
Rolling Three Month Forecast, a new part number by virtue of a
change in geometry and/or color and/or coatings.
(iii) Any purported delivery notice, which together
with other Delivery Notices previously accepted, in the aggregate fails to meet
all of the following criteria with respect to a particular month may be
rejected by Gentex and Gentex need not provide an Acknowledgement:
(A) The aggregate total Unit requirements for
such month does not exceed the total Unit requirements for such month as set
forth in the most recent Rolling Three Month Forecast plus 10%.
(B) The aggregate Units of a particular color
for such month does not exceed the lesser of (i) the aggregate requirements
for such color in such month as set forth in the most recent Rolling Three
Month Forecast plus 10% of such requirements, and (ii) 200% of the lowest
requirement for such color for such month set forth in any Rolling Three
Month Forecast.
(C) The purported delivery notice does not
contain an order for a color not previously manufactured for Oakley by Gentex
with a delivery date (i) less than 12 weeks from the earliest of the date of
such purported delivery notice or a Rolling Three Month Forecast or a
Purchase Order which contains such new color, or (ii) less than 12 weeks from
the date upon which such new color mix has been approved in writing by Oakley.
(D) The purported delivery notice only
includes months included in the most recent Rolling Three Month Forecast.
(E) Sufficient lead time, consistent with
past practice between Oakley and Gentex, is given between the date of such
purported delivery notice and the requested delivery date.
(F) If New Product is contained in the
purported delivery notice, sufficient lead time for delivery is provided to
enable Gentex to fabricate any new tooling required for such New Product.
Any purported delivery notice which does
not meet all of the criteria set forth above in this Subsection 3(b) will not
result in a breach of this Agreement, but to the extent any of the foregoing
criteria are not met deliveries may be subject to reasonable delays
consistent with Gentex's other planned production runs and capacity and, if
the Color Variance criteria is not met, also will be subject to
delays caused in obtaining additional color resin.
(iv) If Oakley fails to submit a Delivery Notice for
or otherwise order or if Oakley wrongfully refuses to take delivery of the
requirements (less the permitted Capacity Variance) for any month as set
forth in the Initial Three Month Forecast or in the most recent Rolling Three
Month Forecast, as the case may be, then Gentex may charge Oakley reasonable
costs associated with the purchase and storage of excess materials or Product
resulting from Oakley's failure to purchase its monthly requirements for that
month. An example of how the Rolling Three Month Forecasts are intended to
work is set forth as Schedule 3(b) hereto.
(c) Seller will use commercially reasonable best efforts
to provide Products in the quantities and by the dates specified in any
Purchase Order for which it has given an Acknowledgment or for which it is
required pursuant to Subsection 3(a) hereof to give an Acknowledgment, but
its failure to do so will not be grounds for rejection of Products (except
as expressly otherwise provided herein) or constitute a breach of this
Agreement or of any Purchase Order, if such commercially reasonable best
efforts have been made. Notwithstanding the use by Seller of its commercially
reasonable best efforts, its continued failure to comply with the provisions
of Subsection 3(a) may allow Oakley to terminate this Agreement as set forth
in Section 4(b) hereof.
(d) Prices quoted and provided for in any Purchase
Contract, or in respect of Products ordered prior to the Effective Date and
delivered subsequent to the Effective Date, will initially be as provided in
the attached price list set forth on Schedule 3(d) hereto. Prices (including
for Hard Coat that has been improved) shall be adjusted from time to time
based upon changes in labor and material costs and any other relevant
factors. In addition, any reasonable cost increases (to the extent such cost
increases exceed Gentex's cost of purchasing Hard Coat or another hard
coating using the same or a substantially similar process) incurred by Gentex
in reformatting at the request of Oakley its production of Decentered Lenses
or Xxxxxxx to produce Product without Hard Coat (or another hard coating
using the same or substantially similar process) may be invoiced to Oakley as
a one-time charge or paid for by increasing the price of such Products to
Oakley to reflect such cost increases. Labor and material cost changes will
be derived from the Relevant Indexes. In the event there is a disagreement
between the parties as to any proposed price increase by Gentex the proposed
price shall take effect immediately pending a final resolution of the
disputed price pursuant to Section 22. If such determination results in a
lower price Gentex shall forthwith refund the difference thus far paid by
Oakley with interest at the prime rate or "Base Rate" then charged by
Citibank, N.A. Any changes in any of the foregoing prices will not be put
into effect until at least thirty (30) days after notice thereof is given to
Oakley. "Relevant Index" for material costs shall be the U.S. price sheet
for truckload list prices of clear general purpose injection molding grade
polycarbonate and/or such other indices published by the U.S. Bureau of Labor
Statistics (Department of Commerce) as the parties may agree upon. The
Relevant Index for Labor costs shall be the index or indices published by the
U.S. Bureau of Labor Statistics as the parties may agree upon. In the event
the parties fail to agree upon all Relevant Indexes to be used throughout the
Term within 30 days from the Effective Date the matter will be submitted to
mediation/arbitration pursuant to Section 22 hereof for resolution.
4. PURCHASES FROM AFFILIATES AND THIRD PERSONS.
(a) If, for any reason, Gentex is, from time to time,
unable to satisfy the provisions of Subsection 3(a), despite commercially
reasonable best efforts to do so, then Gentex will promptly notify Oakley and
may designate one or more Affiliates of Gentex to supply Products to Oakley
and its Affiliates, but only for so long as Gentex is unable to supply Oakley
and its Affiliates therewith in accordance with Section 3 hereof.
(b) If Gentex and Gentex's Affiliates are unable to
satisfy Subsection 3(a) with respect to any Product, for a period of not less
than 60 days ("Grace Period"), then Oakley may thereafter notify Gentex to
that effect. Such notice will specify in what respects Gentex continues to
fail to satisfy Subsection 3(a) hereof at the end of the Grace Period,
including identifying the provision or provisions thereof which have not been
complied with by Gentex, and the facts on which Oakley has based such
determination. The parties will discuss in good xxxxx Xxxxxx'x contentions
and concerns. Gentex will have the period specified in such notice from
Oakley ("Cure Period") (but not less than 180 days as same may be extended in
writing on the basis of the discussions between the parties) within which to
again comply with the provisions of Subsection 3(a) cited by Oakley. If
Gentex (or its Affiliates) are still unable to comply with Section 3(a) at
the expiration of the Cure Period, Oakley by notice to Gentex may terminate
this Agreement at any time thereafter, and, subject to the provisions of
Subsection 15(b), pursue all other remedies available at law or in equity so
long as Gentex (or its Affiliates) at the time of such termination are still
unable to comply with Section 3(a), provided, however, in no event will
damages be payable by Gentex to Oakley as a result of such termination and
failure to satisfy Subsection 3(a) if Gentex has used its commercially
reasonable best efforts.
(c) From the commencement of the Cure Period with respect
to a particular type of Product, through the expiration of the thirtieth (30)
day after the date on which Gentex is able to satisfy Subsection 3(a) with
respect to such Product, Oakley and its Affiliates may purchase such Product
type from any Person other than Gentex and its Affiliates or may manufacture
its own Product of that type for its own use. The number of Units purchased
by Oakley and/or its Affiliates from others or manufactured by Oakley and/or
its Affiliates pursuant to this Subsection, will be deducted from the Minimum
Purchases required during the Contract Year and/or Renewal Year in which such
Products were so manufactured or so purchased from others.
(d) If there is a Cure Period in effect, then the
Purchaser may give notice to the Seller that the Purchaser desires to cancel
any Purchase Contract (and the Delivery Notice forming a part thereof) with
respect to any Product in respect of which a Cure Period is in effect. Such
notice shall specify each individual Purchase Contract (and the Delivery
Notice forming a part thereof). So long as the Seller is in breach of any
such Purchase Contract or the Cure Period was properly commenced, then
Oakley may terminate such Purchase Contract without paying any cancellation
charges.
5. PREMIUMS.
(a) In addition to the basic price charged for
Decentered Lenses and Xxxxxxx by Gentex from time to time during the Term,
during the Period of Exclusivity Oakley will pay Gentex the Unit Premium for
each Unit that is shipped on or after the Effective Date hereof and for which
a Delivery Notice has been given prior to the end of the Period of
Exclusivity. The aggregate amount of unit premiums paid by Oakley and its
Affiliates prior to the date hereof under the Letter of Intent represents an
additional one time payment for the exclusivity granted hereby and is not to
be credited against Unit Premiums or Minimum Purchases hereunder.
(b) Unit Premiums will be payable with respect to each
Unit in accordance with the terms of each invoice relating thereto given by
Gentex or, as permitted hereby, by any Affiliate thereof.
6. MINIMUM PURCHASES.
(a) In each Contract Year and in each Renewal Year, during
the Term purchases by Oakley and its Affiliates, from Gentex and its Affiliates,
of Decentered Lenses and Xxxxxxx shall, in the aggregate, at least equal the
Minimum Purchases for that Contract Year or Renewal Year (as the case may be).
(b) If, at the expiration of any Contract year the actual
purchase by Oakley and its Affiliates exceed the Minimum Purchases for such
year, then such excess will be applied to reduce the Minimum Purchases
required in the Immediately subsequent Contract Year. If at the expiration
of the fourth Contract Year, the actual purchases by Oakley and its
Affiliates exceed the Minimum Purchases for such year, then such excess will
be applied to reduce the Minimum Purchases required in the first Renewal
Year. If at the expiration of the first Renewal Year, and each succeeding
Renewal Year, the actual purchase by Oakley and its Affiliates exceed the
Minimum Purchase for such Year, then such excess will be applied to reduce
the Minimum Purchases required in the subsequent Renewal Year.
(c) If Oakley and its Affiliates fail to make at least 75%
of the Minimum Purchases in any Contract Year or any Renewal Year or fail to
pay the invoice
amount within 30 days after receipt of such invoice from Gentex specifying
the amount due by reason of failure to make Minimum Purchases (which amount
shall equal the deficiency between actual purchases and Minimum Purchases
adjusted as provided by Subsection 6(b) for such Contract Year or Renewal
Year, as the case may be, multiplied by the Unit Premium thereon), then
Gentex may, upon at least 10 days prior notice to Oakley, terminate the
Period of Exclusivity granted to Oakley and its Affiliates in Subsection 2(b)
hereof or terminate this Agreement, or both. The foregoing shall not be
construed as limiting the obligations of Oakley and its Affiliates under
Subsection 2(a) hereof during any Contract Year or Renewal Year or as
limiting the rights which Gentex may have at law or in equity for Oakley's
failure to make and/or pay for Minimum Purchases, provided, that, so long as
Oakley complies with the provisions of this Subsection 6(c) its failure to
make Minimum Purchases, in and of itself, will not entitle Gentex to
terminate this Agreement or the Period of Exclusivity. The foregoing shall
not preclude Gentex from terminating this Agreement if Oakley is otherwise in
breach of provisions of this Agreement entitling Gentex to so terminate.
7. LIMITATIONS ON DISCLOSURE TO DALLOZ.
(a) While the Period of Exclusivity is in effect, neither
Gentex nor Essilor will, and each will cause its Affiliates not to, provide
Dalloz with any Technology without first obtaining the agreement of Dalloz,
in form and substance reasonably satisfactory to Oakley (i) not to use such
Technology for the manufacture of Decentered Lenses; and (ii) not to provide
others with such Technology for the manufacture thereof, which agreement
shall explicitly acknowledge Oakley as a third party beneficiary of such
provision ("Dalloz Agreement"). If and when executed, Gentex will, prior to
providing Dalloz with any Technology, provide Oakley with a copy of the
Dalloz Agreement and with a general description of the type of Technology to
be provided Dalloz and its intended use.
(b) If Gentex, Essilor or any of their Affiliates
provides Technology to Dalloz without obtaining the Dalloz Agreement and
without first providing a copy to Oakley, then Oakley may terminate this
Agreement by 30 day's notice to such effect to Gentex (except as to Purchase
Contracts in effect prior to the expiration of such 30-day period).
(c) If Gentex or Essilor obtains the Dalloz Agreement and
if Dalloz is in material breach of the Dalloz Agreement then, upon
expiration of the grace period provided for in Subsection (d) below, and if,
despite the commercially reasonable best efforts of Oakley, Dalloz cannot be
enjoined from continuing such breach, Oakley may terminate this Agreement by
30 day's notice to such effect to Gentex (except as to Purchase Contracts in
effect prior to the expiration of such 30-day period).
(d) Dalloz will have a 30-day grace period following
notice by Oakley of material breach of Dalloz Agreement within which to cease
manufacturing in breach of the Dalloz Agreement and an additional 90 days
thereafter to cure any other material breaches of the Dalloz Agreement which
may exist.
8. HARD COAT
(a) Upon execution of this Agreement and while the Period
of Exclusivity is in effect, Oakley will have the exclusive right to
purchase from Gentex, Essilor and/or their respective Affiliates Decentered
Lenses with Hard Coat * applied at no additional cost therefor, provided that
any Products that are not ordered with Hard Coat (or another hard coating
using the same or a substantially similar process) may be subject to an
additional charge as set forth in Subsection 3(d). Oakley and its affiliates
will have the non-exclusive right to purchase from Gentex, Essilor or their
respective affiliates, Hard Coat for other Plano applications, provided that
Gentex or Essilor on the one hand and Oakley on the other, reach an agreement
on prices therefor. Gentex and Essilor on the one hand and Oakley on the
other, will engage in good faith negotiations in order to reach such an
agreement. If, at any time during the Term, Gentex, Essilor or any of their
respective Affiliates develop a new hard coating suitable for application to
Decentered Lenses ("New Hard Coat") and Gentex, Essilor or any of their
respective Affiliates is prepared to sell same to any Third Person for use on
any Decentered Lens product of any Third Person, then Gentex or Essilor will
give notice to that affect to Oakley. Oakley will then have the
non-exclusive right to purchase Decentered Lenses and Xxxxxxx with New Hard
Coat, during the Term hereof; provided that the parties hereto agree to the
terms and conditions of such purchases and sales. The parties will negotiate
in good faith with respect to such an agreement. In connection with such
good faith negotiations it is agreed that from any purchase price agreed upon
for New Hard Coat and its application to Decentered Lenses and Xxxxxxx, the
Purchaser will receive a 15 U.S. cent per Unit discount. In no event,
however, during the Period of Exclusivity will Gentex, Essilor or any
Affiliate thereof apply any New Hard Coat to any Decentered Lenses produced
by Gentex, Essilor or their respective Affiliates other than for sale to
Oakley. However, Gentex, Essilor, or any Affiliate of either, may sell New
Hard Coat to Third Parties for any and all purposes, including, without
limitation, for Decentered Lenses; provided that such Decentered Lenses are
not made by Gentex, Essilor or any Affiliate of either. Oakley will have the
non-exclusive right during the Period of Exclusivity to purchase Xxxxxxx from
Gentex, Essilor, or their Affiliates with Hard Coat applied and there shall
be no additional cost therefor.
(b) Except as permitted by other provisions of this
Agreement, neither Gentex, Essilor nor any Affiliate of either will supply
Hard Coat to any Person for use on Decentered Lenses and, if it determines
that any Person is using such Hard Coat on Decentered Lenses, then Gentex,
Essilor, or their Affiliates will cease selling Hard Coat to such Person.
______________
* Material omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission.
(c) Neither Oakley, nor any Affiliate thereof, will
analyze or reverse engineer any Hard Coat or New Hard Coat to learn its
composition (other than for the sole purpose of determining its compatibility
with Oakley's coatings or processes) or how to make it or manufacture it,
nor will any Person directly or indirectly be employed by or retained by
Oakley or any Affiliate thereof for such purpose. This obligation will
continue after the expiration or termination of the Term.
9. PRODUCT SPECIFICATIONS.
(a) Seller will manufacture each Product in accordance with
the applicable Product Specifications therefor annexed hereto as Schedule 9
("Product Specification Schedule") and all applicable federal, state and local
laws and regulations. The parties will negotiate in good faith any
modifications to the specifications or procedures set forth in any Product
Specification Schedule, if either party advises the other that such
modification of such specification is desirable to improve the efficiency or
quality of the Product or the production of that Product or to lower the cost
of production thereof, or to take into account any changes in processes,
equipment or the Product itself, or the availability of material or changes in
technology.
(b) The Parties will negotiate in good faith a Product
Specification Schedule for any additional Product that Seller manufactures
for Purchaser pursuant to this Agreement.
10. INSPECTIONS, REJECTIONS, RETURNS. The parties' obligations
with respect to inspections, rejections and returns of a Product will be as
specified in the relevant Product Specification Schedule, attached hereto or
hereafter agreed upon, provided that:
(a) Inspection, if any, by Purchaser of Products shall be
conducted within 30 days after their receipt;
(b) All claims for replacement or credit will be made
within 10 days after the later of the date the Purchaser inspects or should
have inspected same pursuant to the terms of this Agreement and in any event,
no Product will be returned for replacement or credit once Purchaser has
commenced any processing thereof or once Purchaser has commenced its
incorporation thereof into Purchaser's product or altered the Product.
(c) If the Purchaser receives a Product by common
carrier, then, prior to accepting same from the carrier, the Purchaser will
inspect the exterior of the shipment to determine whether there may have
been any in-transit damage and, if such possibility exists, it will notify
the Seller and the carrier and Purchaser will take such action as is
reasonably necessary to preserve its rights against the carrier and will
seek redress from such carrier, if such damage in fact occurred.
(d) If Purchaser rejects any Product for failure to
comply with the relevant Product Specification Schedule, then Seller may
require the return of the Product F.O.B. its factory, and, after such return
will within thirty (30) days after receipt from Oakley inspect the Product to
determine whether Purchaser's rejection is justified hereunder.
11. DISCLAIMER OF IMPLIED WARRANTY.
SELLER DISCLAIMS ANY IMPLIED WARRANTY WITH RESPECT TO ANY
PRODUCT, INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
12. INDEMNIFICATION.
(a) Each of Essilor and Gentex does hereby indemnify and
hold harmless Oakley and its Affiliates, and each of their respective
officers, directors, employees, representatives and agents, from and against
any and all losses, claims, liabilities, costs, expenses (including, without
limitation, investigative and legal fees and disbursements, both those
incurred in connection with the defense of an indemnifiable claim and those
incurred in connection with the enforcement of this provision) and damages
("Claims and Liabilities") arising out of, or based upon, any infringement or
alleged infringement of Third Person intellectual property rights by any
Decentered Lens or Shield sold to Oakley or to any Oakley Affiliate by
Gentex, Essilor or any Affiliate of either, but only to the extent such
infringement results or is alleged to result from the process technology used
in the design, manufacture or assembly thereof by Gentex or such Affiliate
or the Product resulting therefrom. Notwithstanding the foregoing, there
will be no such indemnification or hold harmless hereunder, for any other
reason or (i) to the extent any such Claims and Liabilities for infringement
or alleged infringement result or are alleged to result from technology,
specifications, know-how, techniques or processes for the Product or for its
processing, manufacture or assembly provided to Gentex or any Affiliate
thereof by Oakley or by any Affiliate thereof or the Product resulting
therefrom; (ii) to the extent Oakley, any Affiliate of Oakley or any Third
Person modifies or alters such Product to cause such infringement or alleged
infringement; (iii) for Claims and Liabilities based upon the incorporation
by Oakley or any Affiliate thereof of such Product in any other product, or
such Product's joinder with or use in conjunction with any other product; or
(iv) Claims and Liabilities based upon infringement or alleged infringement
of a Third Person's design patent or trade dress rights applicable to the
cosmetic aspects of such Product, to the extent such infringement is based
upon technology, specifications, know-how, techniques or processes provided
by Oakley or by any Affiliate thereof.
(b) If there is any Claim for which Oakley indemnifies
Gentex,
Essilor and their respective Affiliates pursuant to Subsection 12(c) hereof,
made by a Third Person that any Decentered Lenses or Xxxxxxx sold by Gentex
or any Affiliate thereof, infringes upon such Third Person's intellectual
property rights, which Claim intellectual property counsel for Gentex or any
such Affiliate (as the case may be) opines is or appears to be valid, or if,
in any proceeding, there is a finding of infringement of a Third Person's
intellectual property right by any Decentered Lenses or Xxxxxxx sold by
Gentex or any Affiliate thereof, then Gentex and its Affiliates, on 15 day's
notice to such effect given to Oakley and to any relevant Affiliate thereof,
may cease the sale and delivery of such Product to Oakley and to any of its
Affiliates, including, without limitation, as to all Purchase Orders and
Purchase Contracts for such Product that remain unfilled at the expiration of
such notice period until such time as such Claim is dismissed or adjudicated
in favor of Oakley and/or Gentex. Neither Essilor, Gentex nor any other
Affiliate thereof shall have any liability hereunder or under any Purchase
Contract for failure to deliver such Product after the expiration of such
notice period and until such dismissal or favorable adjudication. This
Agreement shall continue in effect for other Products, if any, not subject to
such Claim. The Minimum Purchase requirements shall not be adjusted, or
otherwise abated as a result of the operation of this Subsection.
Notwithstanding the provisions of this Subsection, if (i) Oakley offers to
indemnify and hold harmless Essilor, Gentex and any Affiliate of either, from
and against any such Claims and Liabilities in form and substance reasonably
satisfactory to the indemnitees, and (ii) the amount of such Claims and
Liabilities in the reasonable judgment of the indemnitees are not likely to
exceed 50% of the then tangible net worth of Oakley, upon receipt of such
indemnification Gentex will continue to manufacture such Product and sell and
deliver it to Oakley hereunder.
(c) Oakley will indemnify and hold harmless Gentex,
Essilor and their respective Affiliates, and each of their respective
officers, directors, employees, representatives and agents from and against
any and all Claims and Liabilities, arising out of or based upon, any
infringement or alleged infringement of any Third Person's intellectual
property rights by any Product to the extent any such Claims and Liabilities
result from or are alleged to result (i) from technology, specifications,
know-how, techniques or processes provided to Gentex, Essilor or any
Affiliate thereof by Oakley or by any Affiliate thereof; (ii) from any
modifications or alterations by Oakley or its Affiliates of such Product;
(iii) from the incorporation by Oakley or any Affiliate thereof of such
Product in any other product or its joinder with or use in conjunction with
any other product; or (iv) from any infringement or alleged infringement of a
Third Person's design patent or trade dress rights applicable to the cosmetic
aspects of any such Product, to the extent such infringement is based upon
technology, techniques, know-how, specifications, or processes provided by
Oakley or any of its Affiliates.
(d) Claims by Oakley and/or any Affiliate thereof
("Oakley Claims") and Claims by Gentex, Essilor or any Affiliates thereof
("Gentex Claims") collectively are referred to in the following Subsections
of this Section as "Claims" and any proceeding commenced by any Third Person
against a party hereto, in respect of
which such party hereto believes it is entitled to indemnification hereunder,
is referred to in such Subsections as a "Covered Action".
(e) Upon learning of the commencement of a Covered Action
or upon the actual receipt by the party claiming a right of indemnification
(the "Indemnified Party") of a writing claiming the purported existence of
facts or circumstances and threatening the commencement of a Covered Action
or other incurrence of any Claims and Liabilities, the Indemnified Party will
promptly, but no later than fifteen (15) days (i) after learning of such
commencement; or (ii) after such receipt, give notice thereof to each party
having the indemnification obligation ("Indemnifying Party") and, with
reasonable specificity, of the facts and circumstance then known to the
Indemnified Party with respect to such Covered Action, Claims and Liabilities
PROVIDED, HOWEVER, failure to give such timely notice will not release the
Indemnifying Party of its obligations hereunder, except, and only to the
extent that, the Indemnifying Party suffers actual prejudice as a proximate
result of such failure.
(f) The Indemnifying Party will have the right to assume
the defense of any such Covered Action by giving written notice (the
"Assumption Notice") to the Indemnified Party, within 20 days after notice is
given to the Indemnifying Party pursuant to Subsection (e) above, which
Assumption Notice will state that (i) the Indemnifying Party agrees that
Indemnified Party is entitled to indemnification hereunder and that any
resulting Claim is an Oakley Claim or a Gentex Claim, as the case may be, for
which the Indemnifying Party is liable; and (ii) the Indemnifying Party
agrees to assume the defense thereof, in the name and on behalf of the
Indemnified Party, with counsel reasonably satisfactory to the Indemnified
Party and, in either event, at the sole cost and expense of the Indemnifying
Party. Such costs and expenses of the foregoing counsel (including, without
limitation fees and disbursements), if not paid by the Indemnifying Party,
but instead paid by the Indemnified Party, will be Claims. The Indemnified
Party, notwithstanding the timely delivery of an Assumption Notice, may
participate in such Covered Action through counsel separately selected and
paid for by the Indemnified Party. If no Assumption Notice is timely given,
or if, despite the timely giving of the Assumption Notice, the defendants in
any Covered Action include both the Indemnified Party and the Indemnifying
Party, and if the Indemnified Party has reasonably concluded that there may
be legal defenses available to it which are different from or additional to
those available to the Indemnifying Party, or if there is a conflict of
interest which would prevent counsel for the Indemnifying Party from also
representing the Indemnified Party, then the Indemnified Party will have the
right to select one separate counsel to conduct the defense of such action on
its behalf, and all such costs and expenses will be paid by the Indemnifying
Party and, if paid by the Indemnified Party, will be Claims and Liabilities.
Prior to the assumption of the defense of a Covered Action by an Indemnifying
Party, the Indemnified Party may take such reasonable actions with respect to
a Covered Action as it may deem appropriate to protect against further damage
or default, including, without limitation, obtaining an extension of time to
answer the complaint or other pleading or filing an answer thereto,
provided that no such action prejudices the Indemnifying Party's ability to
defend the Covered Action.
(g) In no event will (i) Oakley or any Oakley Affiliate
consent to the entry of any judgment or enter into any settlement of any
Claim and Liability under this Section 12 affecting the rights or obligations
of Gentex, Essilor or their respective Affiliates without the written consent
of Gentex, Essilor or such Affiliate (as appropriate),which consent will not
be unreasonably withheld or delayed; (ii) Gentex, Essilor or any Affiliate
thereof consent to the entry of any judgment or enter into any settlement of
any Claim and Liability under this Section 12 affecting the rights or
obligations of Oakley or its Affiliates without the written consent of
Oakley, which will not be unreasonably withheld or delayed.
(h) This Section will survive the termination or
expiration of this Agreement.
13. ADDITIONAL TERMS AND CONDITIONS TO THE SALE OF ANY PRODUCTS.
(a) Each Product sold by Seller to Purchaser will be
sold pursuant to a Purchase Order from Purchaser and an Acknowledgment
thereof by Seller, each of which is consistent with and complies with the
terms and conditions of this Agreement. Such Purchase Order and
Acknowledgment will constitute a separate, binding Purchase Contract with
respect to each Delivery Notice forming a part of such Purchase Order.
Seller will within 10 days after receipt of a Delivery Notice give an
Acknowledgment of any portion of a Purchase Order covered by such Delivery
Notice which complies with Subsections 3(a) and (b) of this Agreement.
(b) If either the Purchaser or the Seller employs a
printed form of Purchase Order or printed form of Acknowledgment, or other
documents utilized in connection with shipping or invoicing, the printed
terms and conditions thereof will not apply to the sale of any Product
ordered during the Term to the extent that any such term or condition is in
conflict with or deals with the same subject matter as a provision of this
Agreement and any changes in such printed terms and conditions made by either
party after February 28, 1997 shall be null and void as it applies to the
other party.
(c) In the absence of an Acknowledgment, shipment of a
Product ordered by a Purchaser Order will be deemed an Acknowledgment
resulting in a Purchase Contract upon the terms (other than the printed terms
except as permitted by Subsection 13(b)) set forth in the Purchase Order, to
the extent such Purchase Order complies with the terms and conditions hereof.
(d) Title will pass and the Purchaser will assume all risk
of loss of Product at the time of delivery, which will be F.O.B. Seller's
factory. Seller will
arrange for, but Purchaser will pay for, freight and insurance. Unless
otherwise instructed in any Purchase Order (or the Delivery Notice forming a
part thereof) or by subsequent written communication given on a timely basis,
all shipments of Product will be made to Purchaser via ground common carrier
to Purchaser's facility in Irvine or Foothill Ranch, California, as
designated by Purchaser. By reasonable written notice, Purchaser may require
Seller to ship via a more rapid route or carrier than specified in any
Purchase Contract in order to expedite such delivery and any difference in
cost caused by such change will be paid by Purchaser.
(e) In the absence (i) of a breach thereof by the Seller
entitling Purchaser to terminate this Agreement; or (ii) of the commencement
of a Cure Period, any Purchase Contract may be canceled by the Purchaser only
upon payment of reasonable charges based upon expenses already incurred and
commitments made by Seller, which cannot reasonably be allocated to another
Purchase Contract.
(f) Unless otherwise stated, any price quoted or agreed
in any Acknowledgment does not include any applicable United States federal,
state and/or local or foreign taxes and duties and any such taxes and duties
will be the responsibility of the Purchaser. To the extent Seller is aware
that it is obligated by law to collect any tax from Purchaser, it will
separately state such tax on each invoice. Any proper tax exemption
certificate provided by Purchaser to Seller will be accepted by Seller.
(g) A Packing List will accompany each box or package
shipped which will show the order number, the item number and a description
of the Product.
(h) Seller must send to Purchaser the original Seller's
invoice. The carrier will be directed to provide the Purchaser with the Xxxx
of Lading or comparable shipping document at the time of delivery.
(i) Acceptance of any part of an order of Product (i)
will not bind Purchaser to accept future shipments nor (ii) constitute a
waiver of its right to return Product already accepted which does not meet
the specifications contained in the Product Specification Schedule, but only,
in the case of clause (ii), to the extent elsewhere herein or in the Product
Specification Schedule permitted.
(j) All packing and shipping charges in connection with
non-compliant Product returned by the Purchaser to Seller will be for the
account of Purchaser.
(k) Payment for Product will be net 30 days from the date
of the Seller's Invoice.
(l) If any invoice for Product or any Premium is not
timely paid, then, in addition to any other rights or remedies that Gentex
may have hereunder or at
law or in equity, Oakley will pay, at the end of each calendar month,
interest thereon at the then prevailing annual base or prime rate of Chase
Manhattan Bank, N.A. (or its successor), plus 2%, until such unpaid amount is
paid. This Subsection will survive the termination of this Agreement.
(m) Seller will issue a credit to Purchaser for any
documented shortage in the Product shipped or for any Product which the
Purchaser is permitted to reject under the terms hereof or the return of
which is authorized in writing by the Seller.
14. TERMINATION.
(a) In addition to Gentex's and Essilor's right to
terminate this Agreement as may be provided in any other Section of this
Agreement, Gentex or Essilor may terminate this Agreement upon a material
breach by Oakley, or any Affiliate of Oakley, of any of Subsections 2(a),
2(d), 5(a), 5(b), 6(c), 8(c), 12(c), 12(g)(i), 13(k), 17 or 25(d), if such
breach has not been cured or waived within 60 days following notice thereof
from Gentex or Essilor to Oakley, which notice will specify, in such
reasonable detail as is then known to Gentex or Essilor (as the case may be),
the facts constituting such breach.
(b) In addition to Oakley's right to terminate this
Agreement as may be provided in any other Section of this Agreement, Oakley
may terminate this Agreement upon a material breach by Gentex, Essilor or by
any Affiliate of either, of any of Subsections 2(a), 2(b), 7(a), 12(a),
12(g)(ii), 17, 20, or 25(d), if such breach has not been cured or waived
within 60 days following notice thereof from Oakley to Gentex or Essilor, as
the case may be, which notice will specify, in such reasonable detail as is
then known to Oakley, the facts constituting such breach.
(c) This Agreement will automatically terminate, if
Oakley becomes subject to a judicially ordered reorganization or liquidation
or to a reorganization or liquidation proceeding initiated at its own request
or, if such proceeding is initiated at the request of a Third Person, then,
if such proceeding is not dismissed within 60 days following the date of its
initiation, or if Oakley files a petition for protection from creditors, for
a moratorium in payment of its obligations or to declare bankruptcy or
insolvency, or otherwise institutes any proceeding for such relief under any
federal or state bankruptcy law, moratorium law or any law of similar import
applicable to it.
(d) This Agreement will automatically terminate if Gentex
becomes subject to a judicially ordered reorganization or liquidation or to a
reorganization or liquidation proceeding initiated at its own request or, if
such proceeding is initiated at the request of another Person, then if such
proceeding is not dismissed within 60 days following the date of its
initiation, or if Gentex files a petition for protection from creditors, for
a moratorium in payment of its obligations or to declare
bankruptcy or insolvency, or otherwise institutes any proceeding for such
relief under any federal or state bankruptcy law, moratorium law or any law
of similar import applicable to it.
15. CONSEQUENCES OF TERMINATION AND OF OTHER BREACHES OR
DEFAULTS. Whether or not this Agreement has been terminated, except to the
extent otherwise provided herein:
(a) If Oakley, or any Affiliate thereof, commits a
material breach of any provision of this Agreement, or of any Purchase
Contract, which has not been cured (if capable of cure) within the grace
period applicable to such breach, then Gentex and/or Essilor will have the
right to pursue all remedies available at law or in equity except that in no
event xxxx Xxxxxx or any Affiliate thereof be liable for consequential
damages. The parties acknowledge that the limitation as to consequential
damages (which are not available as a result of a breach of this Agreement)
shall not preclude recovery of the actual damage and loss of profits suffered
by the other party directly as a result of the breach in question, but shall
preclude damages and loss of profits suffered indirectly as a result of such
breach.
(b) if Gentex, Essilor or any Affiliate of either
commits a material breach of this Agreement, or of any Purchase Contract,
which has not been cured (if capable of cure) within the grace period
applicable to such breach, then Oakley will have the right to pursue all
remedies available to it at law or in equity except that in no event will
Gentex, Essilor or any Affiliate thereof be liable for consequential damages.
The parties acknowledge that the limitation as to consequential damages
(which are not available as a result of a breach of this Agreement) shall not
preclude recovery of the actual damage and loss of profits suffered by the
other party directly as a result of the breach in question, but shall
preclude damages and loss of profits suffered indirectly as a result of such
breach.
(c) No breach of this Agreement by any party will
constitute a breach of or a default under any other agreement between or
among the parties hereto, (including without limitation any Purchase
Contract), unless such breach or default constitutes a breach or default by
the terms of such other agreement.
(d) No termination of this Agreement will terminate any
Purchase Contract that has a delivery date within sixty days following the
effective date of termination, unless such termination occurs by reason of a
breach of or a default under that Purchase Contract.
16. CONFIDENTIALITY.
(a) Any and all information, correspondence, financial
statements, records, computer software, specifications, technical
information,
know-how, patent applications, processes and information pertaining to same,
and other documents transmitted or communicated by any of Essilor, Gentex or
any Affiliate of either of them, to Oakley or any of its Affiliates, or by
Oakley or any of its Affiliates to Essilor, Gentex or any Affiliate of either
of them (i) during the negotiations of the Letter of Intent and during the
"Standstill Period" (as therein defined); or (ii) while this Agreement is in
effect, have been received and treated and will be received and treated by
each receiving party as trade secrets and confidential information
("Confidential Information"). The terms and the existence of this Agreement
(including without limitation, any Schedule hereto) and of any Purchase
Order, Acknowledgment or Purchase Contract, and the transactions contemplated
hereby and thereby, will be considered Confidential Information.
(b) Each receiving party will use at least the same means
of protecting Confidential Information it receives as is used by the
receiving party to protect its own trade secrets and confidential
information, and such Confidential Information will not be used by the
receiving party (except in connection with the transactions contemplated by
this Agreement), or disclosed by the receiving party to any Third Person, for
a period of three (3) years following the later of (a) the expiration of this
Agreement; (b) the termination of this Agreement; and (c) the fourth
anniversary of the date hereof, without the prior express written consent of
the party which first disclosed it to the receiving party, except as
otherwise provided below in this Section.
(c) The restrictions on use or disclosure of Confidential
Information contained in this Section will not extend to any item of information
which:
(i) is disclosed pursuant to a mutually-agreed upon
(A) public release; (B) announcement; or (C) other form of publicity,
concerning the transactions contemplated hereby;
(ii) is required by law or by the rules or
regulations of any securities exchange applicable to the disclosing party and
which, despite all reasonable efforts of the disclosing party, is not
afforded confidential status by law or by such securities exchange. To the
extent that any disclosure of Confidential Information is claimed to be
required, by law or by such rules and regulations, the other parties hereto
will be notified promptly and, before the disclosure is required to be made,
the party from whom disclosure is sought, if requested by any other party
hereto, will cooperate with such other party or parties to resist and avoid,
to the extent legally permissible, such disclosure;
(iii) was or becomes generally available to the
public other than as a result of a disclosure by the receiving party or its
agents in violation of this Section;
(iv) is lawfully received by the receiving party or
its agents from a Third Person, if the receiving party or its agent has no
reason to believe that the Third Person is prohibited from disclosing such
information by a legal, contractual or fiduciary obligation; or
(v) the receiving party or its agent can
demonstrate through documentary evidence, to the reasonable satisfaction of
the non-disclosing party, that the information was in its possession or known
by it before its receipt from the disclosing party.
(d) Nothing herein will prohibit the disclosure of
Confidential Information by the parties hereto to their respective agents,
representatives, advisors and to their respective key employees to the extent
reasonably necessary to perform this Agreement or any Purchase Contract or to
analyze any legal disclosure obligations; provided that such Persons are made
aware of this Section hereof and agree to be bound by its terms.
(e) No party will issue any press release or other public
announcement referring to this Agreement or to any other agreement bearing
even date herewith among some or all of the parties hereto, or to the
transactions contemplated hereby, or to any Purchase Contract, except with
the prior written consent of the other parties thereto. The parties will
mutually determine whether or not to announce this Agreement, and if they
decide to do so, will coordinate the announcement of this Agreement and any
press release relating thereto as to timing, manner and content thereof.
Notwithstanding the foregoing, if either Oakley or Essilor is required to
make a press release or public statement under the securities laws of any
jurisdiction, or under the rules of any securities exchange applicable to
such party, then such party will use its best efforts to notify the other
party of that fact and discuss the contents of such proposed statement or
release with the other party and its counsel as soon as the party intending
to make such announcement determines that such public statement is to be made
or such press release is to be issued, but in any event at least 24 hours
before such public statement is made or such press release is issued, unless
it will have received advice from its outside counsel that such statement
must be made or must be issued in a lesser period of time, in which event it
will be permitted to make such public statement or press release within such
period of time.
(f) The provisions of this Section will survive the
expiration or termination of this Agreement.
17. INSURANCE. During the Term each of Gentex and Oakley will
maintain product liability insurance on behalf of itself and its Affiliates
of the kinds and in the amounts customary in their respective industries,
will provide the other with copies of such insurance documents and, at the
request of the other, will, in good faith, consider modifications to such
insurance, both as to amount and policy terms, as may be requested by the
other. In addition, Gentex will cause the carrier or carriers of its product
liability insurance to name Oakley as an insured on such policy or policies
as its interest may appear, and Oakley will cause the carrier or carriers of
its product liability insurance to name Gentex and Essilor on such policy or
policies, as its interest may appear.
18. NO BROKERS. Each of Essilor, and Gentex, on the one hand,
and Oakley, on the other hand, hereby represents and warrants to the other
that there are no broker or finder fees, commissions or other compensation
payable in connection with the transactions contemplated hereby arising out
of the actions of the party making such representation and warranty, or out
of the actions of any Affiliate thereof, and each will indemnify, defend and
hold the other harmless from and against any and all Claims and Liabilities
arising by reason of such representation being a misrepresentation or there
being a breach of such warranty. The provisions of this Section will survive
the consummation of the transactions contemplated hereby or earlier
termination of this Agreement.
19. EFFECT OF FORCE MAJEURE. No party hereto will be liable
for any loss, damage or delay resulting from Force Majeure. However, any
party that believes that there will be a loss, damage or delay by reason of
Force Majeure will promptly notify the other party hereto or to the Purchase
Contract, whereupon the parties will discuss means for minimizing such loss,
damage or delay. The foregoing is not intended to preclude either party's
right to terminate this Agreement for non-performance arising out of Force
Majeure, to the extent such non-performance permits termination.
20. EFFECT OF DECLARATIONS.
(a) Gentex hereby acknowledges that the receipt by Oakley
of the Declarations attached as Appendix "A" to the Letter of Intent (and an
original of each of which is attached hereto,) served as an inducement to
Oakley's execution of this Agreement. Gentex and Essilor each hereby agrees
that, if (x) any statement in either Declaration is untrue in any material
respect, or (y) Gentex, Essilor or any of their Affiliates alleges that any
statement in either Declaration is untrue in any material respect, then
Oakley may terminate this Agreement and may pursue any other remedies
available at law or in equity; provided, however, in no event will Essilor,
Gentex or any Affiliate of either be liable for any consequential damages.
Notwithstanding the foregoing or anything herein or elsewhere contained, in
no event will Gentex, Essilor or any Affiliate of either have any liability
to Oakley nor xxxx Xxxxxx have the right to terminate this Agreement or to
pursue any other remedies at law or in equity, if the statement complained of
in either Declaration as untrue or which is subsequently determined to be
untrue:
(i) is contained in paragraph 1 of either
Declaration, or
(ii) is made in either Declaration on the belief or
to the knowledge of the declarant unless the declarant actually knows the
statement to be untrue in a material respect when made.
(b) Oakley acknowledges that none of Essilor, Gentex or
any Affiliate of either, or L. Xxxxx Xxxxxxx or Xxxx X. Xxxxx has made any
independent investigation or inquiry to ascertain or verify the correctness
of their statements described in clause (ii) above other than that L. Xxxxx
Xxxxxxx and Xxxx X. Xxxxx made inquiry of selected Gentex personnel.
(c) If Oakley wishes to disclose any technology or ideas
to Gentex that Gentex has not already disclosed to Oakley or implemented, and
if Gentex is willing to accept that disclosure under a mutually acceptable
confidential, non-disclosure agreement, then Gentex will provide, at Oakley's
cost and expense, technical assistance in implementing such technology or
ideas, but Oakley will own the technology or ideas, including any related
patent and patent applications.
21. TERM. The Term will commence on the Effective Date and
will continue through the end of the fourth Contract Year and will be
automatically renewed thereafter from Renewal Year to Renewal Year, unless
either Oakley on the one hand or Gentex on the other, gives notice to the
other parties hereto that it desires to terminate this Agreement
("Termination Notice"). Except as otherwise expressly set forth herein with
respect to breach or nonperformance of certain provisions hereof, the
effective date of such Termination Notice must be at the end of a Contract
Year or Renewal Year, at least 24 months following the date of such notice
and no earlier than the end of the fourth Contract year.
22. DISPUTE RESOLUTION.
(a) DEFINITION OF DISPUTE.
Any dispute controversy, or claim arising out of
Sections 2(e), 3(a), 3(b), 3(c), 3(d), 4, 8, 10, 13 or 19 of this Agreement
(a "Dispute") shall be settled in accordance with paragraphs (b) through (d)
of this Section. Disputes, controversies or claims which arise out of other
provisions of this Agreement or which, after an arbitration award has
determined that a party is in breach of Subsection 3(a) or a Cure Period has
been properly declared and has expired under Subsection 4(b) without cure (if
Subsections 3(a) or 4(b) are applicable to the particular dispute), involves
the purported termination of the Agreement, or which involves the validity of
the Agreement, or the issue of whether a particular dispute, controversy or
claim is subject to paragraphs (b) through (d) of this Section, shall be
decided by a New York court in accordance with Section 23 of this Agreement
and are not "Disputes". The Dispute as to whether a Cure Period has been
properly declared and has expired pursuant to Subsection 4(b) may be brought
directly under Subsection 22(d) hereof after complying with 22(b) for at
least 10 days without first proceeding under Subsection 22(c).
(b) NEGOTIATION BY SENIOR EXECUTIVES.
The parties shall first attempt to settle any Dispute
by negotiation between senior executives of the Parties.
(c) MEDIATION.
If, within 10 days of the receipt of notice of a
Dispute by a party or parties, the Dispute is not settled through
negotiation, then any party may refer the Dispute to mediation under the
Commercial Mediation Rules of the American Arbitration Association. The
mediator shall be appointed within 10 days of the initiation of the
mediation. The mediation shall be held in New York, New York. If the
Dispute is
not settled within 30 days after the appointment of the mediator, then either
party may refer the Dispute to Arbitration in accordance with paragraph (d)
of this Section.
(d) ARBITRATION.
(1) Any Dispute which has not been resolved under
paragraphs (b) and (c) of this Section shall be finally settled by
arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association (the "AAA") then in effect (the "Rules").
(2) The arbitration shall be held in New York, New
York, U.S.A. The language of the arbitration shall be English. There shall
be one arbitrator appointed in accordance with the Rules. The arbitrator
shall be a retired judge or a commercial litigator with at least fifteen
years of experience.
(3) Either party may, without inconsistency with
this Agreement, seek from a court any interim or provisional relief in aid of
arbitration, pending the appointment of the arbitrator.
(4) The arbitrator shall have the discretion to
order a pre-hearing exchange of information by the parties, including without
limitation, production of requested documents, exchange of summaries of
testimony of proposed witnesses, and examination by deposition of parties.
All discovery must be completed 30 days prior to the hearing, which shall
take place within 90 days of the appointment of the arbitrator.
(5) The arbitral award shall be final and binding
upon the parties. Notwithstanding the provisions of Section 23 of this
Agreement, judgment upon an arbitral award may be entered in any court having
jurisdiction.
(6) This Agreement and the rights and obligations
of the Parties shall remain in full force and effect pending the award in any
arbitration proceeding hereunder.
(7) The arbitral tribunal shall be authorized in
its discretion to grant pre-award and post-award interest at commercial rates
without there being any presumption as to whether the arbitral tribunal shall
grant such interest.
(8) The arbitrator shall award to the prevailing
party, if any, all of its costs and fees, which shall include all reasonable
pre-award expenses of the arbitration, including the arbitrator's fees,
administrative fees, travel expenses, out-of-pocket expenses, court costs,
and attorneys' fees.
(9) The arbitration conducted pursuant hereto shall
be confidential and shall be subject to Section 16, except as may be required
in aid of arbitration or enforcement of an arbitration award.
23. SUBMISSION TO JURISDICTION. The parties, on behalf of
themselves and each Affiliate, hereby submit to the exclusive jurisdiction of
the Federal and State courts located in the City and State of New York for
any relief in aid of arbitration, for any relief relating to arbitration, for
determination of whether a particular dispute, controversy or claim is
arbitrable (I.E. subject to Section 22(b), (c) and (d) of this Agreement), or
for resolution of any dispute, controversy or claim which is not subject to
Section 22(b), (c) and (d). Any notice or process arising out or relating to
this Section may be served on the addressees specified by the parties in
Section 24 of this Agreement within or without the State of New York by
registered or certified mail return receipt requested, by personal service,
or by any other means permitted by applicable law. Notwithstanding the
foregoing, with respect to any injunctive relief to which any party may be
entitled, such party, in addition, may seek such injunction in the
jurisdiction where the act which it seeks to enjoin is being committed or
threatened.
24. NOTICES. Except as otherwise provided in Section 23
hereof, all notices and other communications hereunder will be in writing and
will be given by delivery in person, verified facsimile or other standard
form of telecommunications, by overnight courier, or by registered or
certified mail, return receipt requested to the parties at their respective
addresses set forth above with copies as follows:
If to Gentex, Essilor or any Affiliate of either:
Xxxxxxxx Xxxxx Singer & Xxxxxxxxx, LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Att.: Xxxxx X. Xxxxxx, Esq.
Facsimile No.: 000-000-0000
If to Oakley or any of its Affiliates:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Att.: Xxxxxxx X. Xxxxx, Esq.
Facsimile No.: 213-687-5600
Notice given by mail will be deemed given four business days after deposit
with the United States Postal Service and one business day after delivery
into the custody and
control of an overnight courier service for next day delivery. Notice by fax
will be deemed to have been given the day following the transmittal of the
fax and notice in person will be deemed to have been given the day of
delivery.
25. MISCELLANEOUS.
(a) RIGHTS CONFINED TO PARTIES. Except as expressly
permitted elsewhere herein or as provided by law, nothing expressed or
implied herein is intended to or will be construed to confer upon or give to
any Person, other than the parties hereto, and their successors and assigns
as permitted hereunder and their respective Affiliates, any right, remedy, or
claim under or by reason of this Agreement or of any term, covenant, or
condition hereof, and, subject to the foregoing, all the terms, covenants,
conditions, promises, and agreements contained herein will be for the sole
and exclusive benefit of the parties hereto, their successors and assigns as
permitted hereunder, and their Affiliates.
(b) SURVIVAL. Except as otherwise specifically provided
herein, all rights and obligations of any party hereto to any other party
hereto, arising hereunder, or out of this Agreement, will terminate upon
termination of this Agreement, except for obligations for payment of money
which have accrued but which have not yet been paid at that time and except
for any rights and obligations that arise by reason of breach or wrongful
termination hereof, all of which will survive such termination.
(c) ENTIRE AGREEMENT. This Agreement, constitutes the
entire understanding between the parties hereto with respect to the subject
matter hereof and supersedes any and all prior agreements between the parties
hereto with respect to the subject matter hereof, including, without
limitation; the Letter of Intent, which Letter of Intent will be deemed
terminated and of no legal effect.
(d) ASSIGNMENT. Neither this Agreement, any Purchase
Contract nor any right hereunder or thereunder (except the right to
payments), is assignable, and no obligation hereunder or thereunder is
delegable, and any such purported assignment or delegation will be null and
void and of no effect.
(e) SEVERABILITY. Any provision of this Agreement or any
Purchase Contract which is invalid or unenforceable in any jurisdiction will
not affect the validity or enforceability of any other provision in such
jurisdiction or the validity or enforceability of such provision or any other
provision in any other jurisdiction.
(f) EFFECT OF HEADINGS. Headings contained herein are
for convenience only and will not affect the construction hereof.
(g) GOVERNING LAW. THE PROVISIONS OF THIS AGREEMENT AND
ANY PURCHASE CONTRACT AND ALL THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER, WILL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED WHOLLY WITHIN SUCH STATE AND WITHOUT
REGARD TO ANY PRINCIPLES OF CONFLICTS OF LAWS THAT MIGHT OTHERWISE BE
APPLICABLE.
(h) WAIVER OF JURY TRIAL. THE PARTIES HERETO ON BEHALF OF
THEMSELVES AND THEIR AFFILIATES HEREBY WAIVE TRIAL BY JURY IN ANY PROCEEDING
ARISING UNDER OR OUT OF THIS AGREEMENT OR ANY PURCHASE CONTRACT.
(i) COUNTERPARTS. This Agreement may be executed in
multiple counterparts, each of which will be deemed to be an original, and
all such counterparts will constitute but one instrument, when each party
hereto has executed at least one counterpart.
(j) MODIFICATION, WAIVER. Except as herein otherwise
provided, neither this Agreement nor any Purchase Contract may be modified,
amended or terminated, and no provision hereof or thereof may be waived
except by a writing executed by all the parties hereto or thereto.
(k) CUMULATIVE RIGHTS AND REMEDIES. Except as otherwise
provided herein, in the event of a breach of this Agreement by any party
hereto, which breach has not been cured within the time hereby permitted:
(i) any other party hereto whose rights hereunder
are adversely affected thereby will have all rights and remedies arising
under this Agreement and at law and in equity;
(ii) all such rights and remedies of any party
hereto will be cumulative and may be exercised simultaneously or seriatim and
no party will be required to make any election of remedies.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
GENTEX OPTICS, INC.
By:____________________________________
L. Xxxxx Xxxxxxx, Xx., President
ESSILOR INTERNATIONAL COMPAGNIE
GENERALE D'OPTIQUE, S.A.
By:____________________________________
OAKLEY, INC.
By:______________________________________
Link Xxxxxxx, Chief Operating Officer
SCHEDULE 3(B)
Assume the Initial Three Month Forecast for April, May and June
of 1997, supplied to Gentex on or before March 15, 1997, provides for the
sale to Oakley of 100 units in each of said months comprised of 40 Units of
orange and 60 Units of violet.
Oakley will provide Gentex with a new Rolling Three Month
Forecast no later than April 15, 1997, in respect of May, June and July 1997.
In that new Rolling Three Month Forecast the requirements for May can be no
less than 90 Units in the aggregate and no more than 110 Units in the
aggregate, and, within those parameters, the requirements of Orange Units can
be no more than 60 or less than 20 and the Violet Units no more than 90 nor
less than 30, unless a New Product is involved. Assuming a New Product
constitutes 20 Units of the 100 aggregate Units, then the permissible
Capacity Variance shall be (10% + (10% x 20/100) = 12%) 12% and therefore
total Units can be no more than 112 nor less than 88 but the color
limitations will remain the same. Similarly, June's requirements can be no
less than 90 Units or more than 110 Units (as adjusted for its New Product
composition, if any). Thus, if 30% of June's requirements were New Products
the permissible Capacity Variance would be 13%. July's requirements can be as
reasonably set forth by Oakley.
Oakley will provide a new Rolling Three Month Forecast for the
months of June, July and August 1997, no later than May 15, 1997. This new
Rolling Three Month Forecast for the month of June cannot vary the aggregate
Unit requirements by more than 10% from the requirement for June set forth in
the immediately preceding Rolling Three Month Forecast given in April (as
adjusted for any New Product included in such requirement). Thus, if that
requirement were for 90 units (down from 100 Units in the Initial Three Month
Forecast), then the requirement in this latest Rolling Three Month Forecast
cannot be for less than 81 Units nor more than 99 Units in respect of June
(assuming no New Product). Similarly, the requirements for July cannot be
more than plus or minus 10% from those set forth in the immediately preceding
Rolling Three Month Forecast, given in April (as adjusted for New Product).
If, for example, in this new Rolling Three Month Forecast June requirements
included the same 30% of total requirements being New Product as the previous
rolling Three Month Forecast, the permissible Capacity Variance would again
be 13%. Thus, if June in the last Rolling Three Month Forecast was for 87
Units down from 100 Units, in this Rolling Three Month Forecast it could be
+/- 13% of 87 Units. If in this new Rolling Three Month Forecast the
composition of New Product increased to 40% then this new forecast for June
can be for 87 Units +/- 14%.
Within the permissible Capacity Variance for aggregate Unit
requirements as described above, and assuming no New Product which alters the
plus or minus 10% Capacity Variance, orange Units, as set forth above could
drop to 20 Units or be as high as 60 Units for May or June in the Rolling
Three Month Forecast delivered in April
and as low as 10 Units (if the previous forecast was down from 40 orange
Units to 20) and as high as 90 Units (if the previous forecast was up from 40
orange Units to 60) for June in the Rolling Three Month Forecast delivered in
May (provided the aggregate of all Units permitted equaled or exceeded 90).
Any Delivery Notice with respect to any month for which a
requirement is listed may vary the quantities by up to 10% of the
requirements for that month, both as to aggregate requirements and as to each
color, provided the aggregate quantities by color and otherwise do not exceed
110% of the aggregate Unit requirements permissibly set forth on the most
recent Rolling Three Month Forecast. Furthermore, assume that orange Unit
requirements for June, in the March Rolling Three Month Forecast amounted to
40 Units, in the April Rolling Three Month Forecast to 60 Units and in the
May Rolling Three Month Forecast to 90 Units (in each case the maximum 50%
variance). Thus, with a permitted 10% variance for its Delivery Notice,
Oakley could order 99 orange Units for June delivery EXCEPT that Oakley is
limited to 200% of the lowest June forecast for orange Units (40 x 2) or 80
orange Units, which is the maximum it can order. This also assumes the
aggregate of all Units which may be ordered for June equals or exceeds 80
Units.
Any purported delivery notice, which together with all other
Delivery Notices, provides for aggregate quantities outside the permitted
Capacity Variance for that month, as described above and in Subsection 3(b)
of the Agreement or which is in excess of the permitted Color Variance from
the color requirements set forth in the relevant Rolling Three Month Forecast
will not result in a breach of the Agreement, but will have the consequences
specified in the Agreement.
Gentex Optics, Inc.
Oakley Price List
Schedule 3(d)
Product Gentex P/N OakleyP/n Description Price
------- ---------- --------- ----------- -----
TORIC (1) 1737-0001 80-952 Toric Clear *
1737-0102 80-981 Toric X. Xxxx *
1737-0104 80-983 Toric Amber *
1737-0103 80-984 Toric Rust *
1737-0008 80-985 Toric Orange *
1737-0007 80-968 Toric Violet *
1737-0108 80-987 Toric Persimmon *
1737-0110 80-958 Toric Dark Violet *
1737-0111 80-988 Toric 40% Violet *
1737-0112 80-955 Toric VR-28 *
TORIC NT1 (1) 1737-0208 81-003 Toric Orange, NHC *
1737-0212 81-003 Toric Dark Violet, NHC *
1737-0211 81-005 Toric 40% Violet, NHC *
1737-0210 81-004 Toric VR-28, NHC *
8.75 TRENCHCOATS (2) 0495-5001L 90-001 8.75 T.C. Dark Violet, Left *
0495-5001R 90-002 8.75 T.C. Dark Violet, Right *
0495-5002L 90-003 8.75 T.C. Orange, Left *
0495-5002R 90-004 8.75 T.C. Orange, Right *
0495-5005L 90-037 8.75 T.C. Vr-28, Left *
0495-5005R 90-038 8.75 T.C. Vr-28, Right *
8-BASE 76 X 1.5 (2) 0540-0021E 00-000 Xxxxxx *
0540-0022E 74-803 Dark Violet *
(1) Price Per Single Shield
(2) Price Per Lens and Two Lenses Equal a Unit
* Material omitted pursuant to request for confidential treatment and filed
separately with the Securities and Exchange Commission.
Gentex Optics, Inc.
Oakley Price List
Schedule 3(d)
Product Gentex P/N Oakley P/N Description Price
------- ---------- ---------- ----------- -----
CYLINDER (1) 1729-0001 80-950 Clear *
1729-0102 80-951 Neutral Xxxx *
1729-0103 80-952 Bronze *
1729-0104 80-953 Amber *
1729-0105 80-954 Rust *
1729-0008 00-000 Xxxxxx *
1729-0007 80-958 Violet *
1729-0008 00-000 Xxxxxxxxx *
1729-0008 80-958 Dark Violet 12% *
FROGSKIN (2) 0498-0001L 80-596L Violet, Left *
0498-0001R 80-596R Violet, Right *
0498-0002L 80-597L Neutral Xxxx, Left *
0495-0002R 80-597R Neutral Xxxx, Right *
8.75 BLANKS
DECENTERED (2) 0498-3001E 80-980 Dark Violet *
0498-3002E 00-000 Xxxxxx *
0498-3004E Clear *
0498-3005E Persimmon *
0495-3008E Yellow *
(1) Price Per Single Shield
(2) Price Per Lens and Two Lenses Equal a Unit
* Material omitted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange commission.
* Schedule 9 (a total of 18 pages) has been omitted pursuant to a request for
confidential treatment and filed separately with the Securities and
Exchange Commission.
* The Declarations (a total of 10 pages)have been omitted pursuant to a
request for confidential treatment and filed separately with the Securities
and Exchange Commission.