TOOLING AMORTIZATION AGREEMENT
This
Tooling Amortization Agreement dated as of April 20, 2007 (this “Agreement”), by
and between Alltrista Plastics Corporation., d/b/a Jarden Plastic Solutions
a
Delaware corporation with an office at 000 Xxxxx Xxxx Xxxxxx, Xxxxx 000,
Xxxxxx,
Xxxxxxx 00000-0000 (“Seller”) and Innopump, Inc., d/b/a Versadial, a Nevada
corporation with an office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000
(“Buyer”).
Seller
and Buyer have entered into a Supply Agreement dated as of event date herewith
(the “Supply Agreement). This Agreement is the Amortization Agreement referred
to in the Supply Agreement.
TOOLING.
Buyer
shall reimburse Seller for all amortized costs of molds and other tools and
equipment (the “Tooling”) incurred by Seller that are required for the
production of the parts to be used in the manufacture of 40MM and 49MM Dual
Chambered Pumps (the “Products”) under the Supply Agreement (the ‘Tooling”), as
provided for in this Agreement.
Subject
to the terms and provisions of the Supply Agreement, during the period beginning
on the date of the receipt of Products by Buyer from the first commercial
run of
the Products (the “Start Date”) and for a period of eighteen (18) months
thereafter, Buyer will either (i) continue purchasing from Seller the Products
produced using the Tooling until the Tooling is fully amortized during the
Amortization Period as set forth below, or (ii) reimburse Seller for the
unamortized portion of the Tooling as set forth below. The reimbursement
due
from Buyer to Seller for Tooling shall be calculated as follows:
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a.
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The
specified price for the Tooling plus annual interest at the rate
of 3% per
annum (calculated on the basis of twelve (12) thirty (30) day
months,
which shall compound on a monthly basis, which shall commence
to accrue
from the Start Date) over the Amortization Period (as defined
below) of
the Tooling (“Tooling Cost”) shall be as set forth on Schedules A-D
attached hereto. “Amortization Period” shall mean the payment period for
the Tooling expressed in months as specified on Schedules A-D
attached
[hereto] [to the Supply Agreement], as it may be extended pursuant
to the
Supply Agreement. The Amortization Period shall be extended if
the Seller
is not able to meet the Purchase Orders submitted by Buyer in
accordance
with Supply Agreement.
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b.
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For
the purpose of this Agreement, such Tooling shall be deemed to
be capable
of producing the number of units of finished Product specified
on
Schedules A-D attached hereto during the Amortization Period
(“Tooling
Amortization Quantity”).
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c.
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Seller
will calculate and specify the Tooling Cost per unit of finished
Product
manufactured (“CFPM”) by dividing the Tooling Cost by the Tooling
Amortization Quantity.
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d.
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For
each unit of finished Product the Buyer purchases from Seller,
the CFPM
shall be added to the purchase price of such finished
Product.
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e.
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For
each unit of finished Product less than the Tooling Amortization
Quantity
which Buyer does not purchase within the Amortization Period,
Buyer shall
pay Seller the CFPM within thirty (30) days of the end of the
Amortization
Period. For example, if the Tooling Amortization Quantity is
20,000,000
units, and Buyer purchases 10,000,000 units of finished Product
from
Seller, then Buyer shall pay Seller the CFPM multiplied by 10,000,000
units (20,000,000 less 10,00,000).
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Except
as
otherwise provided in the Supply Agreement, Seller’s right to reimbursement
hereunder shall be unaffected by future developments with respect to the
Supply
Agreement including its abandonment or termination or any increases or decreases
in production volume.
The
Tooling shall remain the sole and exclusive property of Buyer.
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CONTRACTOR
STATUS.
The
Parties are and shall remain independent contractors with respect to each
other,
and nothing in this Agreement shall be construed to place the Parties in
the
relationship of partners, joint ventures, fiduciaries or agents. Neither
Party
is granted any right or authority to assume or to create an obligation or
responsibility, express or implied, on behalf of or in the name of the other
or
bind the other in any manner whatsoever.
AGREEMENT
ENTIRETY; AMENDMENT.
The
Parties agree that the terms and conditions this Agreement (including, the
Schedule attached hereto), when signed by the duly authorized representatives
of
both Parties, together with the Supply Agreement (including the Schedules
and
Exhibits attached thereto), constitute the entire understanding and agreement
between the Parties regarding the subject matter of this Agreement, and
supersede all prior or contemporaneous agreements, oral or written, made
between
the Parties relating to such subject matter. To the extent there is any
inconsistency between the terms and provisions hereof and those of the Supply
Agreement, the terms and provisions of the Supply Agreement shall govern
and be
controlling. This Agreement may not be amended, modified, discharged other
than
by an instrument in writing executed by each of the Parties hereto.
WAIVER.
Any
waiver by a Party of any breach of or failure to comply with any provision
or
condition of this Agreement by the other Party shall not be construed as,
or
constitute, a continuing waiver of such provision or condition, or a waiver
of
any other breach of, or failure to comply with, any other provision or condition
of this Agreement, any such waiver to be limited to the specific matter and
instance for which it is given. No waiver of any such breach or failure or
of
any provision or condition of this Agreement shall be effective unless in
a
written instrument signed by the Party granting the waiver. No failure or
delay
by either Party to enforce or exercise its rights hereunder shall be deemed
a
waiver hereof, nor shall any single or partial exercise of any such right
or any
abandonment or discontinuance of steps to enforce such rights, preclude any
other or further exercise thereof, at any time whatsoever.
SEVERABILITY.
The
Parties agree that should any provision of this Agreement be held to be invalid,
illegal or unenforceable in any jurisdiction by a court of competent
jurisdiction, that holding shall be effective only to the extent of such
invalidity, illegally or unenforceability without invalidating or rendering
illegal or unenforceable the remaining provisions hereof, and any such
invalidity, illegally or unenforceability in any jurisdiction shall not
invalidate or render unenforceable such provision in any other jurisdiction.
It
is the intent of the Parties that this Agreement be enforced to the fullest
extent permitted by applicable law.
ASSIGNMENT.
This
Agreement is not for the benefit of any third party (other than the indemnities
of a Party) and shall not be deemed to give any right or remedy to any such
third party whether or not referred to in this Agreement. Neither Jarden
Plastic
Solutions nor Versadial will have the right to assign the Agreement without
the
prior written consent of the other Party hereto. Subject to the foregoing,
this
Agreement shall be binding upon, and inure to the benefit, of the Parties,
their
successors (by merger, consolidation or other similar transaction or a purchaser
of all of the stock or other equity interests or assets of a Party) and
permitted assigns.
AMBIGUITIES.
Ambiguities, if any, in the Agreement shall not be construed against any
Party,
irrespective of which Party may be deemed to have authored the ambiguous
provision. Each Party has been represented by competent legal counsel of
its
choosing in connection with its negotiation of this Agreement, and therefore,
this Agreement shall be interpreted and construed as if it were drafted jointly
by the Parties.
GOVERNING
LAW.
The
Agreement shall be deemed to have been made in New York, New York, and shall
be
governed by and construed in accordance with the laws of the State of New
York,
U.S.A. without regard to the conflict of laws principles which would result
in
the application of the substantive law of another jurisdiction.
HEADINGS;
COUNTERPARTS, ETC.
The
section headings contained in this Agreement are inserted for reference purposes
only and shall not affect in any way the meaning, construction or interpretation
of this Agreement. Any reference to the masculine, feminine, or neuter gender
shall be a reference to such other gender as is appropriate. References to
the
singular shall include the plural and vice versa. This Agreement may be executed
in two (2) or more counterparts, and by the different Parties hereto in separate
counterparts, each of which when executed shall be deemed to be an original,
and
all of which, when taken together, shall constitute one and the same document.
This Agreement may be executed by facsimile signature which shall constitute
a
legal and valid signature for purposes hereof. Any reliable reproduction
of this
Agreement by reliable means shall be considered an original of this
Agreement
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IN
WITNESS WHEREOF, each of the Parties has caused this Agreement to be duly
executed by an authorized representative as of the day and year first written
above.
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ALLTRISTA
PLASTICS CORPORATION d/b/a
JARDEN
PLASTIC SOLUTIONS
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By:/s/
Xxxxx Xxxxx
Name: Xxxxx
Xxxxx
Title:
President
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INNOPUMP
INC., d/b/a VERSADIAL
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By:/s/
Xxxxxxxx Xxxxxxxxx
Name: Xxxxxxxx
Xxxxxxxxx
Title: President/CEO
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