This Agreement, entered into this ___ day of March, 1998, by and between
Xxxxx Field Co., Inc., a New York corporation with its principal place of
business at 000 Xxxxx Xxxxxxxxx, Xxxxxxxxxxx, Xxx Xxxx 00000 ("Xxxxx Field"),
and Electronic Hardware Corp., a New York corporation with its principal place
of business at 000 Xxxxx Xxxxxx Xxxx, Xxxxxxxxxxx, Xxx Xxxx 00000 ("EHC").
WHEREAS, Xxxxx Field desires to contract for the engineering consulting,
manufacturing and importing services of EHC, and EHC desires to perform such
services on behalf of Xxxxx Field; and
WHEREAS, it is the desire of EHC to secure a right of first refusal to
commercially exploit certain manufactured items; and
WHEREAS, Xxxxx Field may from time to time become aware of business
opportunities with such manufactured items.
NOW, THEREFORE, in consideration of the mutual agreements and covenants
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is mutually agreed by and among
the Parties as follows:
1. Term. The term of this Agreement shall commence as of the date first written
above and end on March 31, 2003 (said period is hereinafter referred to as the
"Term").
2. Services. EHC agrees to perform for Xxxxx Field, on an exclusive basis, the
following services:
(a) Provision of general engineering consulting services to Xxxxx Field in
connection with, and in furtherance of, the development and expansion of Xxxxx
Field's products and business; and
(b) Manufacture and/or import of certain Xxxxx Field products on a time and
materials basis. The decision to fulfill the manufacturing and importing
requests of Xxxxx Field shall be made solely by EHC in its exercise of
reasonable discretion.
3. Limitation of EHC's Product Development.
Notwithstanding any provision to the contrary contained herein, EHC shall
not develop or manufacture products in the Product Line (as defined in Section
5), except upon the written approval of Xxxxx Field.
4. Rights Granted to EHC.
(a) Subject to the terms of this Agreement, in the event Xxxxx Field, or
any of its officers, directors, employees or agents, becomes aware of an
opportunity to manufacture, sell or market items not currently produced or sold
by it (the "Opportunity"), Xxxxx Field shall first advise EHC of such
Opportunity in writing, stating the nature of such Opportunity.
(b) EHC shall have the first right to commercially exploit such Opportunity
(the "Right"), and shall provide written notice to Xxxxx Field of its exercise
of the Right within thirty (30) days from the date of receipt of notice of such
Opportunity. In the event EHC fails to exercise the Right or fails to give Xxxxx
Field timely notice, then Xxxxx Field may utilize the Opportunity in any manner
it chooses.
5. Limitation of the Right.
The Right granted hereunder shall not include opportunities for
manufactured items that are within Xxxxx Field's present product line of (1)
point of sale display items, (2) plastic hardware for the kitchen, bath and
furniture industries, and (3) endcaps for cylinders and mailing tubes (the
"Product Line").
6. Remedies.
If Xxxxx Field breaches, or threatens to commit a breach of any of the
provisions contained herein, EHC shall have the following rights and remedies
(upon compliance with any necessary prerequisites imposed by law for the
availability of such remedies), each of the rights and remedies being
independent of the other and severally enforceable, and all of the rights and
remedies being in addition to, and not in lieu of, any other rights and remedies
available to EHC under law or in equity:
(a) The right and remedy to have the Agreement specifically enforced by any
court having equity jurisdiction, including, without limitation, the right to
have restraining orders and injunctions (preliminary, mandatory, temporary and
permanent) entered against Xxxxx Field preventing violations of such covenants,
threatened or actual, and whether or not then continuing, it being acknowledged
and agreed that any such breach will cause irreparable injury to EHC and that
money damages will not provide an adequate remedy to EHC;
(b) The right and remedy to require Xxxxx Field to account for and pay over
to the EHC all compensation, profits, monies, accruals, increments or other
benefits derived or received by it primarily as the result of any transactions
constituting a breach of the Agreement. Xxxxx Field shall promptly account for
and pay over such sums to EHC.
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7. Arbitration.
Any controversy or claim arising out of, or relating to this Agreement, or
its breach, shall be settled by arbitration in accordance with the then
governing rules of the American Arbitration Association in the City of New York.
Judgement upon the award rendered may be entered and enforced in any court of
competent jurisdiction.
8. Termination of the Agreement.
The parties may terminate this Agreement and the terms contained herein
only by a written instrument signed by both parties or upon expiration of the
Term.
9. Waivers and Amendments.
This Agreement and any of the terms contained herein may not be amended,
superseded, canceled, renewed, extended or waived, unless by a written
instrument signed by the parties or, in the case of a waiver, by the party
waiving compliance. No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any such right, power or privilege, preclude
any other or further exercise thereof or the exercise of any other such right,
power or privilege. The failure of either party to insist upon performance of
any terms or conditions of the Agreement shall not be construed a waiver of
future performance of any such term, covenant or condition, and the obligations
of either party with respect thereto shall continue in full force and effect.
10. Governing Law.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
11. Assignment.
This Agreement, and Xxxxx Field's rights and obligations hereunder, may not
be assigned by Xxxxx Field. Any purported assignment by Xxxxx Field in violation
hereof shall be null and void. EHC may assign this Agreement and its rights
hereunder.
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11. Counterparts.
This Agreement may be executed by the parties hereto in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date
first above written.
Xxxxx Field Co., Inc.
By: /s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, Vice President
Electronic Hardware Corp.
By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx, President
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