EXHIBIT 10.4
Xxx.Xx. 010905-01
AGREEMENT FOR MANUFACTURE & SALES OF "SUN PRESS"
Ryobi Limited of 000 Xxxxxx-xxx, Xxxxx-xxx, Xxxxxxxxx-xxx, 000-0000, Xxxxx
(hereinafter referred to as "Ryobi") and Presstek, Inc. of 00 Xxxxxxxxx Xxxxx,
Xxxxxx, Xxx Xxxxxxxxx 00000-0000, X.X.X. (hereinafter referred to as "Presstek")
mutually agree to execute the following agreements with regard to the
manufacture and sales of "Sun Press" (hereinafter referred to as the
"Agreement").
WITNESSETH THAT:
WHEREAS, Presstek and Ryobi have developed the Digital Offset Printing Press
(hereinafter referred to as "Sun Press") according to the "Agreement for Joint
Development, Manufacture & Sales of the "Sun-press" (Ref. No. 981222-01)" signed
by both parties on December 22, 1998 and amended on January 6, 2000 [Ref. No.
991221-01]. Both parties intend to pursue manufacture and sales thereof.
WHEREAS, Presstek shall manufacture the imaging device (Laser Imaging Heads) to
be assembled into Sun Press and supply DI Kits to Ryobi;
WHEREAS, Ryobi shall manufacture the other mechanical portion of Sun Press, and
Ryobi shall be the exclusive assembler of Sun Press;
WHEREAS, Ryobi is entitled to sell such presses with Ryobi brand (hereinafter
referred to as "Ryobi 3404DI Press"), throughout the world;
WHEREAS, Presstek desires to sell such presses worldwide under other brand(s)
through other channel(s) (hereinafter referred to as "OEM Sun Press"), with a
condition that such Presstek's distribution shall be made through no more than
[CONFIDENTIAL TREATMENT REQUESTED] /*/ and with no more than [CONFIDENTIAL
TREATMENT REQUESTED] /*/ and [CONFIDENTIAL TREATMENT REQUESTED] /*/ name in any
country.
NOW, THEREFORE, Both parties agree upon the terms and conditions as stipulated
below.
DEFINITIONS
"Consumables" shall mean printing plates in roll form using Presstek's PEARLdry
technology as identified in EXHIBIT 2 and as modified, updated and/or replaced
during the term of this Agreement which constitute consumable products for use
in the Sun Press.
"DI Kits" shall mean the hardware components, subassemblies, software and
firmware that are supplied by Presstek for the installation of the Presstek DI
Technology in the Ryobi 3404DI Press and OEM Sun Press.
"DI Products" shall mean the DI Kits, consumables for DI Kits and the spare
parts for DI Kits.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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"Presstek DI Technology" shall mean Presstek's current laser imaging
technologies, together with related products, and the components utilized in
converting a conventional printing press into a direct imaging press including,
without limitation, laser diode arrays, computers, electronics, internal plate
cylinder design and roll based plates.
"Presstek Proprietary Rights" shall mean any all patents, patent applications,
copyrights and trademarks, including the trademarks described in Exhibit 3 as
well as all trade secrets, confidential information, software and firmware,
know-how and all other industrial property rights of any type owned or
controlled by Presstek relating to the Presstek proprietary technology described
in Article 3-1(3) and (4) and 3-2.
"Ryobi Proprietary Rights" shall mean any all patents, patent applications,
copyrights and trademarks as well as all trade secrets, confidential information
software and firmware, know-how and all other industrial property rights of any
type owned or controlled by Ryobi relating to the Ryobi proprietary technology
described in Article 3-1(1)and (2) and 3-2.
"Specifications" shall mean the specifications for the Sun Press attached hereto
as Exhibit 1. These Specifications are subject to modification by Presstek (or
Ryobi) from time to time during the ongoing testing and evaluation of these
units in the exercise of its reasonable engineering judgment, with timely
notification to Ryobi (or Presstek) in accordance with the terms of this
Agreement.
"Sun Press" shall mean a four-color, sheet-fed printing press of the A3 format
size manufactured by Ryobi incorporating multi-print cylinder technology and on
press direct imaging of plates. The definition "Sun Press" shall include the
Ryobi 3404DI Press and the OEM Sun Press.
CHAPTER 1. DEVELOPMENT & MANUFACTURE
ARTICLE 1. MANUFACTURE OF SUN PRESS
As for the manufacture of Sun Press, Presstek shall manufacture DI Kits whereas
Ryobi shall manufacture the other mechanical portions. Ryobi shall be the
exclusive assembler of Sun Press and Ryobi shall test its proper performance as
a total machine before shipment.
ARTICLE 2. TOOLING
As long as both parties intend to sell Sun Press, each party shall bear the
tooling expenses for its own production of products.
ARTICLE 3. PATENT & INTELLECTUAL PROPERTY
1. (1) Ryobi retains the sole ownership and all rights to Ryobi's offset
press technology and any other technology developed by Ryobi.
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(2) Except as provided in ARTICLE 3-2, ownership and all rights to any
technology developed primarily by Ryobi pursuant to the development of
Sun Press to which only a nominal or non-significant contribution is
made by Presstek shall be wholly owned by Ryobi.
(3) Presstek retains the ownership and all rights to Presstek's technology
contained in DI Kits, auto plate cylinder, press concept (Heath
Patent), anilox inking system and any other technology developed
solely by Presstek.
(4) Except as provided in ARTICLE 3-2, ownership and all rights to any
technology developed primarily by Presstek pursuant to the development
of Sun Press to which only a nominal or non-significant contribution
is made by Ryobi shall be wholly owned by Presstek.
[5] Except as provided in ARTICLE 3-2, any new technology jointly
developed by Ryobi and Presstek (the "Joint Technology") will be
equally and jointly owned by the parties to this Agreement. Ryobi and
Presstek may use or license to third parties the Joint Technology
freely without obtaining any approval from the other party PROVIDED,
HOWEVER, THAT THE JOINT TECHNOLOGY SHALL BE CONSIDERED BOTH PRESSTEK
CONFIDENTIAL INFORMATION AND RYOBI CONFIDENTIAL INFORMATION AND SHALL
BE GOVERNED BY THE TERMS AND CONDITIONS OF THE CONFIDENTIALITY
AGREEMENT. Neither party is required to account to the other for, or
to pay the other for any portion of, the revenue it earns from
licensing the Joint Technology. Either party may initiate a patent
application process (or similar process), and both parties agree to
share equally in all reasonable costs associated with such patent
application. In case either party refuses to apply for patent, the
other party is entitled to apply for patent at the sole cost borne by
themselves.
2. Modifications to Existing Technology.
(1) Ownership and all rights to any technology, including the DI Products,
which is a modification or improvement of existing Presstek technology
or which relates to laser imaging, auto plate feeding, auto inking or
directly imageable printing plates made by either or both parties in
the process of the development of Sun Press shall be wholly owned by
Presstek and shall be considered Presstek Confidential Information and
shall be governed by the terms and conditions of the Confidentiality
Agreement. However, such technology shall be licensed to Ryobi under
the terms of this agreement. The cost for patent application on such
technology shall be paid by Presstek.
(2) The ownership and all rights to any technology which is a modification
or improvement of existing Ryobi technology (i.e., all technology
related to Sun Press except existing Presstek technology) made by
either or both parties in the process of the development of Sun Press
shall be wholly owned by Ryobi
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and shall be considered Ryobi Confidential Information and shall be
governed by the terms and conditions of the Confidentiality Agreement.
However, such technology shall be licensed to Presstek under the terms
of this Agreement. The cost for patent application on such technology
shall be paid by Ryobi.
(3) Each party will grant to the other a non-exclusive, unrestricted,
world-wide, royalty-free, perpetual, assignable and sublicenseable
right and license to distribute, incorporate, or otherwise use any
technology which is a modification to existing technology, as set out
in paragraphs 3-2. 1 and 3-2. 2, herein.
3. Grant of License.
(1) Ryobi hereby grants to Presstek a worldwide, royalty-free right and
license to distribute, market, lease the object code of the Sun Press
firmware encompassed within the Ryobi Proprietary Rights to use, sell,
lease or otherwise transfer the Sun Press, but only pursuant to the
terms of this Agreement. Presstek shall have the right to grant their
representatives and intermediary dealers, distributors and customers
the right to provide necessary information and know-how regarding
sale, installation, maintenance and servicing of the Sun Press. The
license shall be a nonexclusive, perpetual, internal use license to
use the object code version of the firmware on the Sun Press.
Presstek, its customers, distributors and other owners are not allowed
to copy, reproduce, modify or grant sublicenses for the software or
firmware of the Sun Press unless agreed in writing by Ryobi. Neither
Presstek, its dealers, distributors or customers shall modify, remove,
disassemble or analyze the source code of the software or firmware.
Neither Presstek, its dealers, distributors or customers shall remove
or change copyright or other intellectual property notices included in
the software or firmware. The license granted in this Agreement
extends to and includes updates and maintenance modifications.
(2) Presstek hereby grants to Ryobi the right and license under the
Presstek Proprietary Rights to assemble, use, sell, lease, distribute
or otherwise transfer the Sun Press incorporating DI Products supplied
by Presstek, but only pursuant to the terms of this Agreement. This
right and license shall not entitle Ryobi to grant sublicenses; except
that Ryobi shall have the right to grant their exclusive
representatives and intermediary distributors the right to provide
necessary information and know-how regarding sale, installation,
maintenance and servicing of such equipment. Further, Ryobi shall have
the right to grant its customers, distributors, and other owners of a
Sun Press the right and license to use all software and firmware
encompassed within such DI Products for use in connection with such
Sun
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Press, such software and firmware licenses to be in a form approved by
Presstek. Neither Ryobi, its customers, distributors or other owners
may copy, reproduce, sublicense or modify the software or firmware
embedded in the DI Products without Presstek's written consent.
Neither Ryobi, its dealers, distributors or the customer shall reverse
engineer, disassemble, decompile or analyze the source code of the
software or firmware. Neither Ryobi, its dealers, distributors nor any
customer shall remove or alter any copyright , trademark or other
intellectual property notice placed in the software or firmware. The
license granted in this Agreement extends to and includes updates and
maintenance modifications.
ARTICLE 4. INTELLECTUAL PROPERTY INDEMNITY.
In the event that any suit is brought against either party (the "Indemnified
Party") based on a claim that a product manufactured solely by the other (the
"Indemnifying Party") infringes any registered or validly issued patent,
copyright, trademark or constitutes a misappropriation of trade secret, the
Indemnifying Party agrees that it will: (A) defend the suit at its expense, as
long as Indemnifying Party is notified promptly in writing and is given complete
authority and information required to defend the suit at its expense and is
given complete authority, information and assistance required to defend or
settle the suit or proceeding; and (B) pay all damages and costs finally awarded
against Indemnified Party. Indemnifying Party will not be responsible for any
cost, expense, or compromise made by Indemnified Party without Indemnifying
Party's written consent.
Should the product (or any part thereof) which was manufactured solely by
Indemnifying Party become, or in Indemnifying Party's opinion, be likely to
become, the subject of a claim for infringement, Indemnifying Party may, at its
own expense and option, either (i) procure for Indemnified Party the right to
continue using such product which was produced by Indemnifying Party or (ii)
replace the same with non-infringing material or modify that portion of the
product which was infringing so that it becomes non-infringing (but providing
substantially equivalent functionality).
Indemnifying Party shall not be obligated to defend or be liable for costs and
damages hereunder if the alleged infringement arises out of: (i) non-compliance
with Indemnifying Party's specifications or requirements for the product, (ii)
use or combination of the product with software or hardware not provided by
Indemnifying Party where the infringement would not have arisen without such
combination, (iii) use of other than the latest unmodified release of the
product made available to Indemnified Party by Indemnifying Party if such
infringement would have been avoided by the use of such later release, (iv)
modification of the product after delivery by a party other than Indemnifying
Party, (v) continued use of the product after receiving notice, or having reason
to believe, that such
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product infringes a patent or copyright of a third party, unless prompt written
notice thereof is given to Indemnifying Party, or (vi) a claim based upon any
infringement for a component of the product not manufactured directly by
Indemnifying Party but by third parties. Indemnifying Party shall have no
liability for any claim based upon Indemnified Party's continued activities
after Indemnifying Party has notified Indemnified Party in writing that
Indemnifying Party believes such activities may result in infringement. This
Article 4 states Indemnifying Party's entire obligations regarding infringement.
ARTICLE 5. QUALITY ASSURANCE
1. Each OEM Sun Press will be delivered in accordance with the testing and
specifications detailed in the Ryobi Inspection List attached as Exhibit 4.
If an OEM Sun Press meets all parameters in the testing, Presstek is
obligated to accept such OEM Sun Press. However if there is a
non-conforming parameter, Ryobi is obligated to correct the non-conformance
prior to Presstek accepting this shipment. The testing and specifications
may be changed by mutual agreement of the parties. Ryobi will ensure that
all Sun Presses comply with the applicable safety, electro-magnetic
emissions and other product standards of those countries as specified in
Exhibit 1.2(3). In addition Ryobi shall make best efforts to meet various
regulations required by certain countries, provided that Presstek shall
bear necessary expenses for that purpose.
2. Ryobi agrees that Presstek or any third party designated by Presstek may
perform regular or periodic audits on performance related to product
testing as specified in this Agreement to insure compliance with Exhibit 4
attached hereto.
ARTICLE 6. MODIFICATION OF SPECIFICATIONS
The specifications for the Sun Press have been agreed to and the following
shall apply:
1. The specifications for Sun Press are described in Exhibit 1.
2. If Ryobi asks Presstek to modify the agreed specifications for Presstek's
components, Presstek shall advise Ryobi in writing, of whether Presstek
accepts such modification as well as any price change for the modification.
If the requested modification is rejected by Presstek, Presstek shall
provide Ryobi with a written explanation.
3. If Presstek asks Ryobi in writing to modify the agreed specifications for
Presstek's components, Ryobi shall advise Presstek in writing, of whether
Ryobi accepts such modification as well as any price change for the
modification. If the requested modification is rejected by Ryobi, Ryobi
shall provide Presstek with a written explanation.
4. If Presstek asks Ryobi in writing to modify the agreed specifications for
Ryobi's
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components, Ryobi shall advise Presstek in writing, of whether Ryobi
accepts such modification as well as any price change for the modification.
If the requested modification is rejected by Ryobi, Ryobi shall provide
Presstek with a written explanation.
5. If Ryobi asks Presstek in writing to modify the agreed specifications for
Ryobi's components, Presstek shall advise Ryobi in writing, of whether
Presstek accepts such modification as well as any price change for the
modification. If the requested modification is rejected by Presstek,
Presstek shall provide Ryobi with a written explanation.
6. The parties shall cooperate with one another in considering requested
changes to the agreed specifications and either party's approval of such
changes shall not be unreasonably withheld. Mutually agreed upon
reliability engineering changes which are necessitated by unreasonable
failures of Sun Press components related to DI Kits and Consumables will be
performed by Presstek at Presstek's expense. Mutually agreed upon
reliability engineering changes which are necessitated by unreasonable
failures of Sun Press components other than DI Kits and Consumables will be
performed by Ryobi at Ryobi's expense.
ARTICLE 7. OTHER DEVELOPMENT PROJECTS
1. Ryobi agrees that Presstek reserves the right to participate in other
development projects while Presstek is working with Ryobi on the Sun Press
Project.
2. Presstek agrees that Ryobi reserves the right to participate in other
development projects while Ryobi is working with Presstek on the Sun Press
Project.
3. Neither party shall use any technology which is the property of the other
party for any other development projects.
4. Any new development project between Presstek and Ryobi shall be subject to
the negotiation of a new definitive agreement between the parties.
CHAPTER 2. DI KITS (DIRECT IMAGING KITS)
ARTICLE 8. SUPPLY OF DI KITS
1. Ryobi shall purchase DI Kits from Presstek for manufacturing Ryobi 3404DI
Presses.
2. Presstek shall transfer Presstek DI Kits to Ryobi for manufacturing OEM Sun
Presses on a consignment basis at no cost.
3. Ryobi will furnish a 12-month rolling unit forecast of DI Kits for Presstek
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updated quarterly, with the first 3 months firm. The initial prices of the
spare parts are as set forth on EXHIBIT 7.
4. Ryobi shall submit to Presstek individual firm order sheet(s) for DI Kits
of Ryobi 3404DI at least thirty (30) days prior to the corresponding
shipment date(s) requested by Ryobi, in which any and all descriptions as
to the DI Kits for Ryobi 3404DI to be purchased by Ryobi shall be listed,
including but not limited to items such as quantities, shipment dates,
destinations, and names of buyers thereof. Providing that OEM SUN Press
shipment will be at the end of the Ryobi production month, or early the
next month, Ryobi shall receive DI Kits for OEM Sun Presses on a
consignment basis from Presstek at least [CONFIDENTIAL TREATMENT REQUESTED]
/*/ days before the beginning of the month when production occurs.
5. Within seven (7) days after receipt of each individual firm order sheet,
Presstek shall provide Ryobi with a written document by tele-fax or other
written instrument, confirming or rejecting the order(s). In the absence of
written rejection by Presstek of such an order within seven (7) days after
its receipt, Presstek shall be conclusively deemed to have accepted the
same. Any and all Purchase Order Schedules and each individual firm order
sheet shall be subject to the terms and conditions of this Agreement unless
otherwise agreed upon by the parties.
ARTICLE 9. PRICES AND PAYMENTS OF DI KITS
1. The Base Price of the DI Kits is defined in Exhibit 5. Changes in the Base
Price will be based upon valid Yen/Dollar fluctuations in accordance with
Exhibit 6. Unless otherwise expressly agreed upon, said prices shall be
F.O.B. point of shipment and exclusive of customs duties and applicable
sales taxes, if any.
2. Unless otherwise expressly agreed upon, Ryobi shall open a standby Letter
of Credit for Presstek in the amount of [CONFIDENTIAL TREATMENT REQUESTED]
/*/ to cover DI Kits and their spare parts and Ryobi will make payments on
an open account basis, on net [CONFIDENTIAL TREATMENT REQUESTED] /*/ days
terms.
3. Ryobi shall bear shipping charges, duties and taxes of DI Kits for Ryobi
3404DI Presses. However, Presstek shall bear shipping charges, duties and
taxes of DI Kits for OEM Sun Presses.
ARTICLE 10. MANAGEMENT OF CHANGE IN DESIGN
1. Presstek shall notify Ryobi of any future change in DI Kits which would
affect the form, fit, interchangeability or function of DI Kits, including
any price change.
2. Ryobi has the right to approve or reject any proposed change, such approval
not to be unreasonably withheld, conditioned or delayed.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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3. If Ryobi rejects such change, faithful discussion shall be taken place to
reach alternative solution.
4. If the change is approved, Presstek is required to offer the schedule for
the implementation of such change.
5. Presstek shall inform Ryobi of all necessary information regarding
mandatory retrofits due to Presstek's change.
ARTICLE 11. WARRANTY OF DI KITS
1. Presstek represents and warrants that DI Kits shall be free from defects in
function, quality, material and workmanship for a period of [CONFIDENTIAL
TREATMENT REQUESTED] /*/ months from the date of installation to the end
user or [CONFIDENTIAL TREATMENT REQUESTED] /*/ months from the date of
shipment by Presstek to Ryobi whichever is earlier. Presstek also warrants
that the spare parts of DI Kits (except consumable items) shall be free
from defects in function, quality, material and workmanship for
[CONFIDENTIAL TREATMENT REQUESTED] /*/ months from the date of receipt
thereof by a customer from Ryobi or Ryobi's distributor and further
warrants that DI Kits meet the specifications, samples or other drawings as
agreed upon between Presstek and Ryobi. When Ryobi finds a breach of the
above warranty, Ryobi shall inform Presstek in writing of any such breach
with supporting evidence. Upon request of Presstek, Ryobi shall return
defective products or part for inspection. Presstek shall, at the option of
Presstek, either (i) replace the DI Kits in breach of the warranty, (ii)
deduct the payment to that extent or (iii) credit to future invoices. The
warranty of Presstek shall be limited to the above mentioned.
2. Presstek shall have the obligation to supply spare parts for DI Kits for
minimum [CONFIDENTIAL TREATMENT REQUESTED] /*/ years from the date of
expiration or termination of this Agreement.
3. PRESSTEK MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE DI KITS
OTHER THAN THOSE SET FORTH IN THIS AGREEMENT. THE WARRANTY STATED HEREIN IS
EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, AND SUCH WARRANTY CONSTITUTES THE ONLY
WARRANTY MADE BY PRESSTEK WITH RESPECT TO THIS AGREEMENT OR THE DI KITS TO
BE SUPPLIED HEREBY.
ARTICLE 12. PRODUCT LIABILITY OF DI KITS
Presstek shall indemnify, defend and hold harmless Ryobi, its distributors or
agents, directors, officers or affiliates from any or all claims, demands,
suits, losses, liabilities or expenses by third parties who were injured and/or
damaged to their property as a result of any defect of DI Kits unless such
claims, demands, suits, losses, liabilities or expenses by third parties are
attributed to Ryobi or the Sun Press except the DI Kit. Each party shall
promptly and cooperatively respond
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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to the other party's request to investigate the cause of such accident, should
it occur, in order to resolve such product liability related issues. Presstek
shall be required to maintain adequate property, casualty and product liability
insurance to cover damage to property or personal injury which arise at a
customer's location and is caused by any defect or failure of the DI Kits
manufactured by Presstek.
ARTICLE 13. INSPECTION BY RYOBI
Ryobi shall inspect the appearance and quantity of DI Kits within [CONFIDENTIAL
TREATMENT REQUESTED] /*/ days of the receipt of DI Kits at its warehouses or
other designated places of Ryobi. Ryobi shall inform Presstek in writing of any
shortage or defects, which have been found by the appearance inspection with
supportive evidence. Presstek shall, at the option of Presstek, either (i) send
the quantity of DI Kits and their spare parts to fill shortage or replacements
of defective DI Kits and their spare parts, (ii) deduct the payment to that
extent or (iii) credit to future invoices. Presstek's warranty under ARTICLE 11
shall survive the passing of this inspection.
CHAPTER 3. DISTRIBUTION OF DI PRODUCTS TO RYOBI DISTRIBUTORS
ARTICLE 14. DISTRIBUTION OF DI PRODUCTS
1. Ryobi distributors may purchase DI Products directly from Presstek
2. Distributors are entitled to purchase PEARLdry Plus plate free surface
freight for "skid lot" purchases ([CONFIDENTIAL TREATMENT REQUESTED] /*/
Boxes minimum purchase per order).
ARTICLE 15. [CONFIDENTIAL TREATMENT REQUESTED] /*/
ARTICLE 16. SPARE PARTS OF DI KITS
Ryobi and Presstek must maintain an adequate stock of spare parts to satisfy the
needs of the customers, distributors and factory.
CHAPTER 4. DISTRIBUTION OF SUN PRESS
ARTICLE 17. DISTRIBUTION OF RYOBI 3404DI PRESS
Ryobi shall sell, market, lease, promote, distribute and otherwise commercially
exploit the Ryobi 3404DI Press in all countries worldwide.
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AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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ARTICLE 18. DISTRIBUTION OF OEM SUN PRESS
Ryobi shall manufacture and sell the OEM Sun Press only to Presstek. Presstek
may re-sell, lease, market, distribute, promote and otherwise commercially
exploit the OEM Sun Press worldwide under other brand(s) through Presstek's
channel(s). Such distribution of the OEM Sun Press shall not be made through
more than [CONFIDENTIAL TREATMENT REQUESTED] /*/ and with more than
[CONFIDENTIAL TREATMENT REQUESTED] /*/ and with more than [CONFIDENTIAL
TREATMENT REQUESTED] /*/ name in any country. Each OEM Sun Press shall have the
Ryobi name label and country of origin placed on the non-operator side of the
press. The cosmetics and model name for any OEM Sun Press must be different from
the Ryobi 3404DI Press. To prevent interchangeability, the Plate Roll Cassettes
furnished by Presstek on the Ryobi 3404DI Presses and the OEM Sun Presses will
be different.
ARTICLE 19. PROCEDURE OF ORDERING
1. Presstek shall furnish a 12-month rolling unit forecast of OEM Sun Presses
to be purchased from Ryobi, updated quarterly, with the first 3 months
firm.
2. In accordance with Purchase Order Schedule, Presstek shall submit to Ryobi
every [CONFIDENTIAL TREATMENT REQUESTED] /*/ months an individual firm
order sheet(s) at least [CONFIDENTIAL TREATMENT REQUESTED] /*/ days prior
to the corresponding shipment date(s) requested by Presstek, in which any
and all descriptions as to the OEM Sun Presses to be purchased from Ryobi
shall be listed, including but not limited to items such as quantities,
shipment dates, destinations, and names of buyers thereof. Also, Ryobi
shall receive DI Kits for OEM Sun Presses on a consignment basis from
Presstek at least [CONFIDENTIAL TREATMENT REQUESTED] /*/ days before the
beginning of the month when the production occurs. Ryobi shall ship OEM SUN
Press at end of Ryobi Production month or early the next month.
3. Within seven (7) days after receipt of each individual firm order sheet,
Ryobi shall provide Presstek with a written document by tele-fax or other
written instrument, confirming or rejecting the order(s). Ryobi may reject
such an order only if it would not conform with the terms and conditions of
this Agreement or if Ryobi would be unable to fill such an order due to
such causes beyond the reasonable control of Ryobi as may be considered a
Force Majeure under Article 35, herein. In the absence of written rejection
by Ryobi of such an order within seven (7) days after its receipt, Ryobi
shall be conclusively deemed to have accepted the same. Any and all
Purchase Order Schedules and each individual firm order sheet shall be
subject to the terms and conditions of this Agreement unless otherwise
agreed upon by the parties hereto.
4. All OEM Sun Presses manufactured by Ryobi for Presstek channel(s) shall be
sold to Presstek. The following general principles shall apply to all OEM
Sun Presses purchased by Presstek:
(1) Presstek shall transfer DI Kits to Ryobi on a consignment basis at no
cost.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
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The title to DI Kits shall belong to Presstek even after the delivery
thereof to Ryobi.
(2) Shipping charges, import duties and other expenses to import DI Kits
to Ryobi shall be borne by Presstek.
(3) Ryobi shall sell the finished products to Presstek at Ryobi price and
Presstek shall sell the products to Presstek's customer (hereinafter
referred to as "Presstek Customer").
5. Ryobi shall furnish 3404DI-operation manual, 3404DI-service manual, 3404DI
parts list and 3404DI-electrical service manual in English to Presstek.
ARTICLE 20. MANAGEMENT OF CHANGE
1. Ryobi shall notify Presstek of any future changes in Ryobi Design which
would affect the form, fit, interchangeability or function of Ryobi Design,
including any price changes.
2. Presstek has the right to approve or reject any proposed change.
3. If Presstek rejects such change, faithful discussion shall be taken place
to reach alternative solution.
4. If the change is approved, Ryobi is required to offer the schedule for the
implementation of such change.
5. Ryobi shall inform Presstek of all necessary information regarding
mandatory retrofits due to Ryobi's change.
ARTICLE 21. CUSTOMER ASSISTANCE
1. Presstek is solely responsible for the installation, warranty and
post-warranty service on the OEM Sun Presses. Any work requested from Ryobi
by Presstek will be charged by Ryobi at the customary rates for this type
of service including traveling expenses.
2. Ryobi is solely responsible for the installation and warranty and
post-warranty service on the Ryobi 3404DI Presses, including DI Kits sold
through Ryobi distributors under terms and conditions of this Agreement
unless otherwise agreed by the parties. Any work requested from Presstek by
Ryobi will be charged by Presstek at the customary rates for this type of
service including traveling expenses. However, Presstek is responsible for
supplying spare parts and technical information for DI Kits directly to
Ryobi's distributors. Reference to Distribution Agreement.
ARTICLE 22. DETERMINATION OF SPECIFICATIONS
1. During the term of this Agreement, Presstek may order products for Presstek
Customer to Ryobi whose specifications have been established by Presstek
and Ryobi.
12
2. Basic Specifications for Sun Press are described in Exhibit 1. And
specifications for OEM Sun Presses shall be based on this Exhibit 1 with
some limited alterations which may increase the price.
3. Additional performance Specifications for OEM Sun Presses may be added upon
mutual agreement to Exhibit 1 at a later date.
ARTICLE 23. PRICES AND PAYMENTS OF OEM SUN PRESSES
1. The Base Price of the Sun Presses and Options is defined in Exhibit 5.
Changes in the Base Price will be based upon valid Yen/Dollar fluctuations
in accordance with Exhibit 6.Unless otherwise expressly agreed upon, said
prices shall be F.O.B. port of Japan and exclusive of customs, duties and
applicable sales taxes, if any.
2. Title and risk of loss of OEM Sun Presses shall pass to Presstek from Ryobi
FOB Japan Port of Export.
3. Unless otherwise expressly agreed upon, Presstek shall open a standby
Letter of Credit for Ryobi in the amount of [CONFIDENTIAL TREATMENT
REQUESTED] /*/ to cover OEM Sun Presses and their spare parts and Presstek
will make payments on an open account basis, on net [CONFIDENTIAL TREATMENT
REQUESTED] /*/ days terms.
4. Presstek shall bear all shipping charges and duties of OEM Sun Presses.
ARTICLE 24. CARGO INSURANCE FOR OEM SUN PRESSES
With respect to shipments ex FOB, Presstek shall arrange insurance from a point
within the country of shipment to a point within the country of destination.
ARTICLE 25. INSPECTION
Presstek shall inspect on the appearance and quantity of OEM Sun Presses within
[CONFIDENTIAL TREATMENT REQUESTED] /*/ days of the receipt of OEM Sun Presses at
their warehouses or other designated places of Presstek. Presstek shall inform
Ryobi in writing of any shortage or defects, which have been found by the
appearance inspection with supportive evidence. Ryobi shall, at the option of
Ryobi, either (i) send the quantity of OEM Sun Presses and their spare parts to
fill shortage or replacements of defective OEM Sun Presses and their spare
parts, (ii) deduct the payment to that extent or (iii) credit to future
invoices. Ryobi's warranty under ARTICLE 26 shall survive the passing of this
inspection.
ARTICLE 26. WARRANTY OF SUN PRESSES
1. Ryobi represents and warrants that Sun Presses and spare parts (except
consumable items) shall be free from defects in function, quality, material
and workmanship for a period of [CONFIDENTIAL TREATMENT REQUESTED] /*/
months from the date of installation of the press to the end-user or
[CONFIDENTIAL TREATMENT REQUESTED] /*/ months from the date of shipment by
Ryobi to Presstek or an authorized distributor of Presstek, whichever is
earlier, and Ryobi also hereby warrants that Sun Presses meet the
specifications, samples or other drawings as agreed upon between Presstek
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
13
and Ryobi. Where Presstek finds a breach of the above warranty, Presstek
shall inform Ryobi in writing of any such breach with supportive evidence.
Upon request of Ryobi, Presstek shall return defective Sun Presses or parts
for inspection. Ryobi shall send spare parts to replace defective parts
under warranty free of charge, or, if the level of defect is beyond the OEM
Customer's capability, Ryobi shall visit and inspect such presses and Ryobi
and Presstek will jointly decide how to resolve the issue.
2. Ryobi shall have the obligation to supply the spare parts of Sun Presses
for minimum [CONFIDENTIAL TREATMENT REQUESTED] /*/ years from the date of
expiration or termination of this Agreement.
3. RYOBI MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUN PRESS
OTHER THAN THOSE SET FORTH IN THIS AGREEMENT. THE WARRANTY STATED HEREIN IS
EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, AND SUCH WARRANTY CONSTITUTES THE ONLY
WARRANTY MADE BY RYOBI WITH RESPECT TO THE SUN PRESSES TO BE SUPPLIED
HEREBY.
ARTICLE 27. PRODUCT LIABILITY OF SUN PRESSES; INSURANCE
1. Ryobi shall indemnify, defend and hold harmless Presstek, its distributors,
customers, directors, officers or affiliates from any or all claims,
demands, suits, losses, liabilities or expenses by third parties who were
injured and/or damaged to their property as a result of any defect of Sun
Presses unless such claims, demands, suits, losses, liabilities or expenses
by third parties are attributed to the negligence of Presstek or Presstek
Customer. Each party shall promptly and cooperatively respond to the other
party's request to investigate the cause of such accident, should it occur,
in order to resolve such product liability related issues.
2. Ryobi shall be required to maintain adequate property, casualty and product
liability insurance to cover damage to property or personal injury which
arise at a customer's location and is caused by any defect or failure of
the Sun Press manufactured by Ryobi. Ryobi shall carry such insurance
during the term of this Agreement and for a period not less than
[CONFIDENTIAL TREATMENT REQUESTED] /*/ years after termination, and in each
case shall be required to name Presstek as an additional insured on a
non-contributory basis if possible or to do whatever is necessary to ensure
that the coverage inures to the benefit of Presstek, its distributors and
customers.
ARTICLE 28. USE OF TRADEMARKS
1. Ryobi may use the trademarks or tradenames owned by Presstek or trademarks
or tradenames specified by Presstek and included in Exhibit 3
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
14
(hereinafter referred to as "Trademark") for the purposes of advertising,
promoting, manufacturing and distribution of Sun Presses hereunder. In
addition, Ryobi shall place the DI Logo on all Sun Presses in a mutually
agreed upon location on each such press.
2. In respect of Sun Presses or containers thereof, Ryobi shall not use any
Trademark in such a manner as would threaten distinguishability,
identifiability or effectiveness thereof or use other trademarks in
combination with Trademark.
3. Ryobi hereby acknowledges that Trademark used hereunder shall exclusively
belong to Presstek or Customer. Ryobi shall not use, register or apply any
trademarks which are the same or confusingly similar to the Trademarks
except for the implementation of this Agreement.
4. Ryobi's name shall be placed on the electrical specification plate of the
non-operator side of the OEM Sun Press in the format previously agreed.
5. Upon termination or suspension of this Agreement, Ryobi shall cease use of
all Trademarks except as authorized in writing by Presstek.
CHAPTER 5. GENERAL
ARTICLE 29. CONFIDENTIALITY
Both parties shall keep all confidential information which is transmitted
between the parties in connection with this agreement confidential under the
terms of the Confidentiality Agreement between the parties attached hereto as
Exhibit 8. The Confidentiality Agreement attached as Exhibit 8 supercedes and
replaces the Confidentiality Agreement dated as of December 22, 1998 that was
previously executed by the parties.
ARTICLE 30. DURATION
This Agreement shall become effective on the date first above written and,
unless sooner terminated pursuant to the provisions herein contained, continue
to be in effect for [CONFIDENTIAL TREATMENT REQUESTED] /*/ years. Unless either
party gives the other party notice of termination in writing at least 180 days
prior to the expiration date of this Agreement or any extension hereof, this
Agreement shall be automatically renewed thereafter on a year to year basis
successively.
ARTICLE 31. TERMINATION
1. In the event of a Material Breach of this Agreement by either party, the
party not in breach of this Agreement may suspend performance hereunder or
terminate this Agreement by written notice to the other party if the breach
by the other party shall not have been corrected by the party in breach
within [CONFIDENTIAL TREATMENT REQUESTED] /*/ days after written notice is
given by the party not in breach
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN
OMITTED AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH
OMITTED MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2
PROMULGATED UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
15
complaining of such breach by the other party. For purposes of this
Agreement, a "Material Breach" shall mean such breach of rights and
obligations by a party under Articles 4 (Intellectual Property Indemnity),
11 (Warranty of DI Kits), 17 (Distribution of Ryobi 3404DI Press), 18
(Distribution of OEM Sun Press), 26 (Warranty of Sun Presses), 27 (Product
Liability of Sun Presses), 28 (Use of Trademarks) or 29 (Confidentiality)
which can reasonably be expected to put the other party to this Agreement
in danger of sustaining loss in excess of [CONFIDENTIAL TREATMENT
REQUESTED] /*/.
2. In the event of payment default by a party more than forty-five days past
due, the non-defaulting party may suspend performance of its obligations
until such payment default is cured.
3. Any right to suspend performance by the non-breaching party does not
terminate the continuing performance obligations of the breaching party.
ARTICLE 32. STEPS AFTER TERMINATION
1. If this Agreement is expired or terminated as provided herein, Both parties
shall return any samples, specifications, drawings or other confidential
information provided by either party to the other party. Any individual
sales contracts which have been made prior to such termination or
expiration date shall continue to be effective irrespective of such
termination or expiration.
2. In the case that this Agreement is terminated by the default or breach of
this Agreement by either party, the terminating party may claim for damages
to the other party.
3. The provisions of ARTICLES 3, 4, 11, 12, 26, 27, 28, 29, 31, 32, 33, 34,
39, 40, 41, 44 and 45 of this Agreement shall survive after the expiration
or termination of Agreement.
ARTICLE 33. NOTICE
1. Any notice hereunder shall be sent to the representative of the other
party, with the postage prepaid by overnight courier service or facsimile
transmission. In an emergency, the notice may be sent to the responsible
person of the other, by telephone followed by a facsimile message.
2. Notice of failure to perform this Agreement or of termination of this
Agreement shall be sent by overnight courier or facsimile transmission to
the receiving party. Any written notice hereunder shall be effective as of
the date of dispatch thereof.
ARTICLE 34 ARBITRATION:
All disputes that may arise under or in relation to this Agreement shall be
settled by good faith negotiations between the parties. Any such dispute which
cannot be settled by such good faith negotiations within sixty (60) days after
written notice by one party to the other party shall thereafter be finally
settled by binding
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
16
arbitration in accordance with the rules of arbitration of the International
Chamber of Commerce. As to matters of interpretation of contract law, then the
laws of the State of New Hampshire shall apply. As to matters of Presstek
Proprietary Rights (other than trade secret matters), then US patent, trademark,
and copyright law shall govern such matters, and the laws of the State of New
Hampshire shall apply to Presstek trade secret matters. As to matters of Ryobi
Proprietary Rights, then Japan patent, trademark, and copyright law shall govern
such matters, and the laws of Japan shall apply to Ryobi trade secret matters.
The ruling by the arbitration court shall be final and binding and the parties
undertake to abide by and to carry out the award immediately and voluntarily. In
the event that such award is not immediately abided by and carried out, the
award of whatever nature may be enforced without review in any court of
competent jurisdiction. The arbitration award shall determine which party shall
bear the expenses of the arbitration or the portion thereof which each party
shall bear. In case Presstek is a respondent, arbitration shall be conducted in
New York in English. In case Ryobi is a respondent, arbitration shall be
conducted in Tokyo in Japanese. The parties agree to (i) appoint an arbitrator
who is knowledgeable in and familiar with the printing and imaging industry, and
instruct the arbitrator to follow substantive rules of law; (ii) require the
testimony to be transcribed; and (iii) require the award to be accompanied by
findings of fact and a statement of reasons for the decision. The arbitrator
shall have the authority to permit discovery, to the extent deemed appropriate
by the arbitrator, upon request of a party. The arbitrator shall have no power
or authority to add to or detract from the written agreement of the parties. All
costs and expenses, including attorneys' and the arbitrator's fees, of all
parties incurred in any dispute which is determined and/or settled by
arbitration pursuant to this section shall be borne equally by the parties. Any
award shall be final, binding and conclusive upon the parties and a judgment
rendered thereon may be entered in any court having jurisdiction thereof. This
Article shall not limit the right of any party to xxx for injunctive relief, for
a breach of the confidential obligations under this Agreement, for a breach
relating to intellectual property matters (including trademarks or patents), or
a violation of the distribution rights granted herein.
ARTICLE 35. FORCE MAJEURE
1. Any party shall not be liable or be in breach of any provision of this
Agreement for any failure or delay on its part to perform any obligation
hereof because of acts of God, allocation of parts and components due to
civil or military authority, war, riots, civil disturbances, accidents,
fire, earthquakes, floods, strikes, lock-outs, labor disturbances, foreign
or governmental order or any other cause beyond the reasonable control of
to such party (collectively, "Force Majeure"), provided such party shall
promptly give notice to the other party of such occurrence and make best
efforts to eliminate the effects thereof
17
to the extent possible.
2. If a party is prevented from manufacturing or making deliveries provided
for under this Agreement for a commercially unreasonable period not to
exceed ninety (90) days by virtue of any above causes, the other party
shall have the right to manufacture or arrange for the manufacture of such
products by another party; and further provided that upon termination of
the cause preventing performance of this Agreement, performance of this
Agreement may be resumed upon the party's payment to the other party of
such costs as may have been incurred in exercising the rights as above
provided.
ARTICLE 36. SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the parties hereto and their respective
successors and assigns, but neither party shall assign this Agreement nor any
rights hereunder without a prior written consent of the other party; PROVIDED,
HOWEVER, that each party may assign this Agreement with prior written notice to
the other party in connection with (a) the sale of all or substantially all of
the capital stock or assets of such party, or (b) the acquisition by a third
party of a party to this Agreement by merger, consolidation, reorganization or
other business combination whereby more than fifty (50) percent of the voting
securities of a party to this Agreement are sold or transferred to a third party
in a business combination. Notwithstanding the foregoing, however, such business
transfer to a third party shall secure the continuous supply of DI Kits or Sun
Presses (whichever is applicable) or their related parts at reasonable prices
for at least one year
ARTICLE 37. TERMINATION OF SUN PRESSES.
Either party may decide to terminate business with the Sun Press. Should a party
decide to terminate business with the Sun Press, the terminating party shall
promptly notify the non-terminating party to provide the non-terminating party
with sufficient time to make appropriate alternative arrangements. In no case,
however, shall the non-terminating party be given notice of less than one year's
notice of the terminating party's intent to terminate except if there is less
than one year left on the term of this Agreement. If a party terminates business
with the Sun Press, the terminating party shall make every effort to assist the
non-terminating party in continuing to manufacture and sell the Sun Press. If a
party terminates business with the Sun Press, both parties shall have the
obligation to supply spare parts for [CONFIDENTIAL TREATMENT REQUESTED] /*/
years from the date of the termination.
ARTICLE 38. TRADE TERMS
All trade terms provided in this Agreement or individual contracts relating
thereto shall be interpreted in accordance with the latest terms of the
International Chamber of Commerce.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
18
ARTICLE 39. ESCROW ARRANGEMENT
The parties agree that in order to warrant each party's access to the other
party's proprietary technology, especially software, concerning OEM Sun Presses
and DI Kits, as provided for herein, the parties shall establish an escrow with
a certain escrow agent to provide for the retention, administration and
controlled access of the proprietary technology materials of each party. The
details of the escrow arrangement shall be discussed and negotiated separately,
and the parties shall forthwith execute an escrow agreement to implement said
arrangement.
ARTICLE 40. GOVERNING LAW
The validity, construction and performance of this Agreement shall be governed
by laws of wherever the arbitration should take place; provided, that as to
matters of Presstek Proprietary Rights (other than Presstek trade secret
matters), then US patent, trademark, and copyright law shall govern and the laws
of the State of New Hampshire shall apply to trade secret matters, and as to
matters of Ryobi Proprietary Rights, then Japanese patent, trademark and
copyright law shall govern.
ARTICLE 41. WAIVER
Any default or delay by either party in exercising any of its rights or remedies
shall not be deemed to be waiver thereof or a change in this Agreement. Any
single or partial exercise of any of rights or remedies under this Agreement
shall not prevent exercise of or additional exercise of any other rights or
remedies.
ARTICLE 42. SEVERABILITY
Any judgment made by the court of jurisdiction or administrative authorities
that any of the terms hereof or part thereof is illegal or void shall not affect
validity of the rest of that term or of the other terms thereof, which shall be
fully effective as if the terms or part thereof so judged illegal or void were
not included herein.
ARTICLE 43 DISCUSSION
If a situation arises where any of the above articles do not cover such new
situation, both parties shall faithfully discuss to resolve such matter in good
faith and with reference to the articles of this Agreement.
ARTICLE 44 CONSEQUENTIAL DAMAGES
EXCEPT FOR THE PARTIES' OBLIGATIONS OF INDEMNITY AS EXPRESSLY PROVIDED IN THIS
AGREEMENT AND THE OBLIGATIONS PURSUANT TO THE CONFIDENTIALITY AGREEMENT, WHICH
SHALL BE GOVERNED BY ITS TERMS, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE
OTHER OR ANY OTHER PERSON FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL,
OR OTHER INDIRECT DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, LOSS OF
PROFITS OR DAMAGES TO ANY PARTY'S BUSINESS REPUTATION OR GOODWILL, HOWEVER
CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION FOR CONTRACT, STRICT
LIABILITY OR TORT
19
(INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, WHETHER OR NOT
THE FIRST PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND
NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
The purpose of Section 44 is to limit monetary claims to amounts that can be
predicted and are quantifiable, which are a direct result of the breach that
initiates the monetary claim, by excluding "punitive," "incidental" and other
"indirect" monetary claims, which are usually intended to include out-of-pocket
expenses directly attributable to a breach. Since intellectual property of both
Ryobi and Presstek is extremely important, this section does not limit amount of
monetary claims for a breach associated with a misuse of intellectual property.
This section also does not limit the amount of monetary claims for a breach
associated with the Confidentiality Agreement.
ARTICLE 45 TAXES
1. With regard to Taxes that may arise in connection with Presstek
distribution activities, Presstek shall be responsible for and shall bear
and pay (or reimburse Ryobi for, to the extent paid by Ryobi) all Taxes
(but excluding any net income taxes imposed on Ryobi) which are owed or
imposed under or by any governmental authority or agency in connection with
the Presstek distribution activities.
2. With regard to Taxes that may arise in connection with Ryobi distribution
activities, Ryobi shall be responsible for and shall bear and pay (or
reimburse Presstek for, to the extent paid by Presstek) all Taxes (but
excluding any net income taxes imposed on Presstek) which are owed or
imposed under or by any governmental authority or agency in connection with
the Ryobi distribution activities.
3. If either Presstek or Ryobi would be responsible for any Tax under this
Agreement and provides certification of an exemption from such Tax or of a
reduced rate of Tax imposed on the other party by an applicable taxing
authority, under such taxing authority's rules, then the other party shall
not (unless otherwise required by law) invoice for or pay over any such Tax
unless and until the applicable taxing authority assesses such Tax.
4. For purposes of this section, "Taxes" shall mean any and all taxes,
customs, duties, and similar charges imposed or collected by any
governmental entity worldwide or any political subdivision thereof on the
distribution of Sun Presses or DI Products and however designated or levied
and shall include any interest, penalties, costs, or additions to tax
(except as may otherwise be specifically provided herein).
20
ARTICLE 46. ENTIRE AGREEMENT
This Agreement (including all exhibits and schedules to this Agreement)
constitutes the entire agreement between the parties hereto and supersedes all
provisions, negotiations, agreements and commitments in respect thereto,
including that certain Ryobi-Presstek Memorandum of Understanding, and shall not
be released, discharged, changed or modified in any manner except by instruments
signed by duly authorized officers or representatives of each of the parties
hereto. The parties acknowledge that upon execution of this Agreement, that
certain Agreement for Joint Development, Manufacture and Sales of Sun Press is
hereby terminated and shall have no further force and effect.
IN WITNESS WHEREOF, the parties hereto have signed this Agreement, in duplicate,
as hereinbelow indicated.
(Ryobi) (Presstek)
RYOBI LIMITED PRESSTEK, INC.
By: /s/ T. Mifune By: /s/ Xxxxxx Xxxxxxx
--------------------------------- ------------------------------
Title: Senior Vice President Title: CEO
Date: April 5, 2002 Date: 3/28/02
21
October 9, 2001
EXHIBIT 1 - SUN PRESS SPECIFICATIONS
1. Presstek grants Ryobi the right to use the Heath Patent for this project
only.
2. Sun Press specifications and related issues;
1) The specifications of Sun Press are as described below unless
otherwise noted.
a) Number of Printing Units 4, each with 4 form rollers
b) Printing Speed 1,500-7,000 S.P.H. Local conditions, ink, stock
and printing quality required will affect the maximum printing
speed.
c) Max. Paper Size (W x L) 340 x 460 mm (13.39 x 18.11")
d) Min. Paper Size (W x L) 90 x 100 mm (3.54 x 3.94")
e) Max. Printing Area (W x L) 330 x 450 mm (12.99 x 17.72")
f) Paper Thickness 0.06-0.3 mm (0.0024-0.012")
g) Blanket Type Blanket with aluminum bar.
h) Blanket Size 526 x 350 x 1.95 mm (20.70 x 13.78 x 0.077")
i) Plate Material PEARLdry(TM) Plus (waterless plate x .007" thick)
j) Number of Plates 28 per roll
k) Plate Setting Auto plate advance mechanism
l) [CONFIDENTIAL TREATMENT REQUESTED] /*/
m) Laser Type FirePower(TM) multi-beam lasers, [CONFIDENTIAL
TREATMENT REQUESTED] /*/ per Imaging Unit
n) Feeding System Universal feeder (portrait)
o) Feeder Pile Capacity 400 mm (15.75")
p) Delivery Pile Capacity 400 mm (15.75")
q) Power: Three phase 200V, 50/60 Hz, 48A or other voltages
r) Wattage: 16kW
s) Dimensions (L x W x H) 3,230 x 2,635 x 1,665 mm (Including steps
and operation stand)
t) Weight 4,500kg (9,950 lbs.)
u) Recommended room conditions: Room temperature 20 - 25 degreesC,
Relative humidity 50 - 60%.
v) Design and specifications are subject to change as agreed upon by
Ryobi & Presstek. Specifications may differ slightly depending on
the country.
2) The following options are available for OEM Sun Presses.
a) Multisize Paper Feed table
b) IR Dryer
c) PDS-E Density control system.
d) Presstek shall furnish different type Plate Roll Cassettes for
Ryobi-brand press and OEM-brand press so there will be no
interchangeability.
3) Presses to be offered for:
- United States of America shall meet UL 775 and FCC Requirements;
and
- Europe shall meet GS and EMC requirements.
3. For the sake of product liability, a small data plate shall be placed on
non operator side of OEM-brand presses which should indicate Ryobi/Presstek
as being manufacturer.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
22
4. Software License Agreement for supplying digital data for manuals
1) Ryobi will supply digital data to Presstek for the purpose of
supporting Presstek's service to Presstek Customers. Ryobi accepts
that OEM partner(s) can transfer the digital data to their
distributors and customers.
2) Ryobi assumes no responsibility or liability for any errors or
inaccuracies that may appear in the Presstek's materials produced by
the data that Presstek quoted from Ryobi's supplied data.
3) Regardless of the above item a), Ryobi accepts that Presstek transfers
the digital data to OEM partner(s), distributors and customers.
5. Design Patent Agreement
1) Article 2 of the Joint Application Agreement (ref. 000926), Exhibit 2
includes:
"(Proceedings and Costs) Necessary proceedings for obtaining design
registration for the Design Applications and other necessary
proceedings for maintenance and administration of the design rights
shall be conducted by Ryobi or Ryobi's attorney, and Presstek shall
cooperate with Ryobi in such proceedings. The Parties shall equally
bear the costs thereof."
2) As of October 9, 2001, Ryobi completed application of the design
patent for the Ryobi 3404DI for 10 countries. Ryobi paid the
application fee for 10 countries and the registration fee for only
Japan. Presstek accepted Ryobi's invoice for [CONFIDENTIAL TREATMENT
REQUESTED] /*/ (half cost of [CONFIDENTIAL TREATMENT REQUESTED] /*/)
as Presstek's share of the cost.
3) In the future, Ryobi will pay design patent registration fees for the
9 remaining countries except Japan.
4) At the end of each March and September, Ryobi will inform Presstek of
design patent registration fees involved in the previous 6 months.
Ryobi will send an invoice for payment of 1/2 the registration fees,
until the registration of the design patent is finished. The invoice
for registration fees including copies of bills issued by Ryobi's
attorney for design patent registration fees will be sent by DHL to
the attention of Xxxxx Xxxxxxx, Controller of Presstek.
6. Additional Features and Modifications To Be Introduced In 2002. There are
some additional items beyond the afore-mentioned 2 Sun Press specifications
and related issues. Such items are listed in Exhibit 5-A-b.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
23
EXHIBIT 2 - CONSUMABLES SPECIFICATIONS
- PLATE SPECIFICATIONS -
PRODUCT NAME: Presstek PEARLdry PLUS thermal laser media - spooled product.
PRODUCT DESCRIPTION: Metalized polyester film with silicone coating.
PRODUCT APPLICATION: Plate material for Presstek DI enabled printing presses.
The material is spooled on steel cores that engage unwind and take-up mechanisms
integral to the press plate cylinder. The design allows a specific amount of
material to be advanced into imaging and printing position. A thermal laser
imaging system creates a latent image on the surface of the plate. A subsequent
cleaning step removes silicone in the imaged areas, creating an ink-receptive
printing master. Up to 20,000* copies can be produced from the printing master.
* Actual run length performance may vary.
PRODUCT SPECIFICATION:
------------------------------------------------------------------
SUN Press
------------------------------------------------------------------
Spool width [CONFIDENTIAL TREATMENT REQUESTED] /*/
------------------------------------------------------------------
Spool Length [CONFIDENTIAL TREATMENT REQUESTED] /*/
------------------------------------------------------------------
Images / Spool 28
------------------------------------------------------------------
Presstek warrants the spooled plate for [CONFIDENTIAL TREATMENT REQUESTED] /*/
from date of the shipment from Presstek.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
24
EXHIBIT 3 - PRESSTEK TRADEMARKS
DI
ProFire Imaging System
PEARLdry
PEARLdry PLus
Firepower Multibeam Laser
DI Logo (attached)
EXHIBIT 4 - QUALITY ASSURANCE COMPLIANCE
[CONFIDENTIAL TREATMENT REQUESTED] /*/
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
EXHIBIT 5 - BASE PRICE LIST FOR DI KITS
AND OEM SUN PRESSES
EXHIBIT 5-A-a
BASE PRICE OF NON-LASER DI PRESS AND DI KIT
(Agreed on Jan. 31, 2002)
--------------------------------------------------------------------------------
Base Yen Price (A) Base rate (R1)
--------------------------------------------------------------------------------
Non-laser DI press Yen [CONFIDENTIAL TREATMENT
REQUESTED] /*/ [CONFIDENTIAL TREATMENT
REQUESTED] /*/ Yen/$
--------------------------------------------------------------------------------
DI Kit Yen [CONFIDENTIAL TREATMENT
REQUESTED] /*/ [CONFIDENTIAL TREATMENT
REQUESTED] /*/ Yen/$
--------------------------------------------------------------------------------
Note 1. The above base price is based on 2-1) in Exhibit 1, and there are some
additional features and modifications to be introduced in 2002. And
the prices of such items are shown in Exhibit 5-A-b.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
EXHIBIT 5-A-b
SOME ADDITIONAL FEATURES AND MODIFICATIONS TO BE INTRODUCED IN 2002
March 11, 2002
---------------------------------------------------------------------------------------------------
Xerox KBA
[CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT
No. Item REQUESTED] /*/ REQUESTED] /*/
===================================================================================================
1) Base price [CONFIDENTIAL TREATMENT REQUESTED] /*/
---------------------------------------------------------------------------------------------------
2) UL extra [CONFIDENTIAL TREATMENT --------------
(Final cost on Mar.11, 2002) REQUESTED] /*/
---------------------------------------------------------------------------------------------------
3) GS extra ------------------ [CONFIDENTIAL TREATMENT
(=CE-extra, unexpected amount) REQUESTED] /*/
---------------------------------------------------------------------------------------------------
4) Extra cost [CONFIDENTIAL TREATMENT --------------
due to Xerox special demand test REQUESTED] /*/
---------------------------------------------------------------------------------------------------
5) Extra cost ------------------ [CONFIDENTIAL TREATMENT
due to KBA special demand test REQUESTED] /*/
---------------------------------------------------------------------------------------------------
6) Cost up for KBA cover ------------------ [CONFIDENTIAL TREATMENT
REQUESTED] /*/
-----------------------------------------------------------------------------------------------------
7) Ryobi-recommended up-grade [CONFIDENTIAL TREATMENT REQUESTED] /*/
-----------------------------------------------------------------------------------------------------
(a) [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT REQUESTED] /*/
REQUESTED] /*/
-----------------------------------------------------------------------------------------------------
(b) [CONFIDENTIAL TREATMENT [CONFIDENTIAL TREATMENT REQUESTED] /*/
REQUESTED] /*/
-----------------------------------------------------------------------------------------------------
8) Various modifications [CONFIDENTIAL TREATMENT REQUESTED] /*/
already done
-----------------------------------------------------------------------------------------------------
9) IR dryer [CONFIDENTIAL TREATMENT REQUESTED] /*/
-----------------------------------------------------------------------------------------------------
10) IR dryer (at promotional price) [CONFIDENTIAL TREATMENT REQUESTED] /*/
-----------------------------------------------------------------------------------------------------
11) Multi-size paper feed table [CONFIDENTIAL TREATMENT REQUESTED] /*/
-----------------------------------------------------------------------------------------------------
12) Multi-size paper feed table (at [CONFIDENTIAL TREATMENT REQUESTED] /*/
promotional price)
-----------------------------------------------------------------------------------------------------
13) PDS-E [CONFIDENTIAL TREATMENT REQUESTED] /*/
-----------------------------------------------------------------------------------------------------
14) PDS-E (at promotional price) [CONFIDENTIAL TREATMENT REQUESTED] /*/
-----------------------------------------------------------------------------------------------------
Note: The above dollar prices in ( ) are converted with base rate of Yen110/$.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
EXHIBIT 6
PRICING SCHEME FOR ADJUSTING EXCHANGE RATE FLUCTUATION
(1) The adjustment of prices for non-laser DI press and DI kit shall be made
every [CONFIDENTIAL TREATMENT REQUESTED] /*/ months as mathematically
expressed in the equation below in the below Table 1. However, unless the
difference between the exchange rates is more than +/- [CONFIDENTIAL
TREATMENT REQUESTED] /*/ yen since the previous adjustment at the
[CONFIDENTIAL TREATMENT REQUESTED] /*/ month adjustment interval, there
will be no adjustment. However, if the difference of the exchange rate (at
the [CONFIDENTIAL TREATMENT REQUESTED] /*/ month adjustment interval) is
more than +/- [CONFIDENTIAL TREATMENT REQUESTED] /*/ yen as compared with
the rate at the last adjustment, the adjustment will be made as stipulated
in Table 1.
(2) Exchange rate for calculation
a) December 15 rate shall be used for the pricing in the January - June
shipment period, and the June 15 rate shall be used for the July -
December shipment period.
b) R1 in the Table 1 is the first rate (=base rate) corresponding to the
"first 6 month period". And it was mutually agreed to set R1=110Yen/$
to initialize the formula.
Table 1:
------------------------------------------------------------------------------------------------------
Official Actual Applicable
Shipment Standard FOB Japan Exchange Rate Exchange Rate FOB Japan Price
Month Price (Yen) for Calculation in US$
------------------------------------------------------------------------------------------------------
First period A R1 R'1=R1 A/R'1
(Prior to the end of
2001)
------------------------------------------------------------------------------------------------------
Second period A R2 R'2=(R1+R2)/2 A/R'2
(Jan. - June, 2002
shipment)
------------------------------------------------------------------------------------------------------
Third Period A R3 R'3=(R1+R3)/2 A/R'3
(July - Dec., 2002
shipment)
------------------------------------------------------------------------------------------------------
(n-1)th 6 months A Rn-1 R'n-1=(R1+Rn-1)/2 A/R'n-1
------------------------------------------------------------------------------------------------------
n-th 6 months A Rn R'n=(R1+Rn)/2 A/R'n
------------------------------------------------------------------------------------------------------
Note: 1) The base Yen price (A) and the base rate (R1) are as per Exhibit 5.
2) For example, the Second period (Jan. - June, 2002 shipment) for
non-laser DI press is calculated as follows, where R2 = 127.57 Yen/$
reported in Wall Street Journal on Dec. 18, which was the first report
after Dec. 15, 2001.
R'2 = (110 + 127.57)/2 = 118.79
Yen [CONFIDENTIAL TREATMENT REQUESTED] /*/
The Second period for DI kit is calculated as follows.
Yen [CONFIDENTIAL TREATMENT REQUESTED] /*/
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
3) The actual price of presses will be calculated by adding GS fee, UL
fee, etc. on the top of the above figure.
4) Once the shipment date of goods has been established through mutual
correspondence, and if there should be any delay of shipment due to
manufacturer's reason, such delayed goods shall not be given any
disadvantageous price which might arise as the result of new exchange
rate. However, if such delay of shipment is the result of buyer's
request, old or new disadvantageous price may be applied on such
delayed goods.
5) If the official exchange rate changes more than +/- [CONFIDENTIAL
TREATMENT REQUESTED] /*/% within the [CONFIDENTIAL TREATMENT REQUESTED]
/*/ month period, both parties should cooperate on an additional
adjustment.
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
EXHIBIT 7 - PRICE LIST FOR SPARE PARTS
----------------------------------------------------------------------------------------------------------------------------
PRESSTEK PRESSTEK LIST RYOBI QTY PER QTY REC QTY REC QTY REC SHIPPING PART REPAIR
PART # PART DESCRIPTION PRICE PRICE PRESS FOR 10 FOR 20 FOR 50 IN KILOS REPAIR? PRICE
----------------------------------------------------------------------------------------------------------------------------
S-AEE01741 PCB Assy, [CONFIDENTIAL 2 1 2 5 5 [CONFIDENTIAL
70 Volt Switch, TREATMENT TREATMENT
Integrated Head REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
S-AEE01791 PCB Assy, [CONFIDENTIAL 2 1 2 5 7 [CONFIDENTIAL
Backplane, TREATMENT TREATMENT
Integrated Head REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
S-AEE01801 PCB Assy, Nexen, [CONFIDENTIAL 2 1 2 5 7 [CONFIDENTIAL
Integrated Head TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
S-AEE01931 PCB Assy, [CONFIDENTIAL 12 2 4 8 5 [CONFIDENTIAL
Laser Drv, TREATMENT TREATMENT
Integrated Head REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
S-AEE01961 Kit, Spares, [CONFIDENTIAL 12 2 4 6 1 [CONFIDENTIAL
PCB, Laser DRV, TREATMENT TREATMENT
6 Pin REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AEE02081 PCB Assy, [CONFIDENTIAL 1 1 2 5 3 [CONFIDENTIAL
OHCI Adapter, TREATMENT TREATMENT
3 Port REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AFF02981 Kit, Software, [CONFIDENTIAL 1 2 4 8 2 [CONFIDENTIAL
3404 DI TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
S-AHH04961 Module, PCB Assy, [CONFIDENTIAL 2 1 2 5 5 [CONFIDENTIAL
Stepper Drive TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
S-AHH05471 Integrated Head, [CONFIDENTIAL 2 0 1 3 50 [CONFIDENTIAL
Ryobi TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
S-AHH05581 Stepper Driver [CONFIDENTIAL 2 2 4 6 5 [CONFIDENTIAL
Assy. TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AHH04621 Motor Assy, [CONFIDENTIAL 2 1 2 5 3 [CONFIDENTIAL
Stepper, TREATMENT TREATMENT
Integrated Head REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AHH04941 Pump Assy, [CONFIDENTIAL 12 3 6 15 2 [CONFIDENTIAL
Diode, TREATMENT TREATMENT
Integrated Head REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AHH05161 Sensor, Home, [CONFIDENTIAL 2 1 2 5 2 [CONFIDENTIAL
Integrated Head TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AHH05381 Laser Package, [CONFIDENTIAL 12 2 4 6 1 [CONFIDENTIAL
MEP, HP, Met TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
S-AMM08971 Glass Holder [CONFIDENTIAL 2 1 2 5 5 [CONFIDENTIAL
Assy, Ryobi, TREATMENT TREATMENT
w/screws REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AMM0170A Leadscrew [CONFIDENTIAL 2 1 2 2 6 [CONFIDENTIAL
(2mm Pitch TREATMENT TREATMENT
for 1270/2540 dpi) REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AMM08851 Clamp Assy, diode [CONFIDENTIAL 12 2 4 8 2 [CONFIDENTIAL
TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AMM09221 Leadscrew [CONFIDENTIAL 2 1 2 5 2 [CONFIDENTIAL
Nutholder Assy TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AWW07101 Cable Assy, [CONFIDENTIAL 2 1 2 5 2 [CONFIDENTIAL
Network, TREATMENT TREATMENT
10 Meters, Firewire REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AWW07331 Cable Assy, [CONFIDENTIAL 2 1 2 5 2 [CONFIDENTIAL
-6VDC TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AWW07341 Cable Assy, [CONFIDENTIAL 2 1 2 5 2 [CONFIDENTIAL
24VDC TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AWW07351 Cable Assy, [CONFIDENTIAL 2 1 2 5 2 [CONFIDENTIAL
Stepper Control TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AWW07361 Cable Assy, [CONFIDENTIAL 2 1 2 5 2 [CONFIDENTIAL
Stepper Motor TREATMENT TREATMENT
Drive REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AWW07371 Cable Assy, [CONFIDENTIAL 2 1 2 5 2 [CONFIDENTIAL
Peripherals TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AWW07411 Cable Assy, [CONFIDENTIAL 1 1 2 4 2 [CONFIDENTIAL
-6VDC, T2 TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AWW07421 Cable Assy, [CONFIDENTIAL 1 1 2 4 2 [CONFIDENTIAL
+24VDC, T2 TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AWW07431 Cable Assy, [CONFIDENTIAL 1 1 2 4 2 [CONFIDENTIAL
Stepper Control, TREATMENT TREATMENT
T2 REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
AWW07441 Cable Assy, [CONFIDENTIAL 1 1 2 4 2 [CONFIDENTIAL
Stepper Motor TREATMENT TREATMENT
Drive, T2 REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
S-CBC00091 Kit, Spares, [CONFIDENTIAL 1 1 1 2 2 [CONFIDENTIAL
PCB, OHCIADAPT, TREATMENT TREATMENT
3 Port REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
EYY00881 Power Supply, [CONFIDENTIAL 1 1 2 5 6 [CONFIDENTIAL
Switching, TREATMENT TREATMENT
6V, 24V, 70V REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
MFC03351 Shoulder Screw [CONFIDENTIAL 2 0 0 2 1 [CONFIDENTIAL
TREATMENT TREATMENT
REQUESTED]/*/ REQUESTED]/*/
----------------------------------------------------------------------------------------------------------------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
---------------------------------------------------------------------------------------------------------------------------------
PRESSTEK PRESSTEK LIST RYOBI QTY PER QTY REC QTY REC QTY REC SHIPPING PART REPAIR
PART # PART DESCRIPTION PRICE PRICE PRESS FOR 10 FOR 20 FOR 50 IN KILOS REPAIR? PRICE
---------------------------------------------------------------------------------------------------------------------------------
MFC03361 Shoulder Screw [CONFIDENTIAL 2 0 0 2 1 No N/A
TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MHH0158A Fitting,
Xxxx 3/8 Tube X 1/4 NPT [CONFIDENTIAL 2 0 0 2 1 No N/A
TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MHH0224A Oring Cord, [CONFIDENTIAL 4 0 0 2 1 No N/A
4mm, X.X ft LG TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MHH04851 Shaft Coupling [CONFIDENTIAL 2 0 0 5 1 No N/A
TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MHH04861 O Ring,BUNA-N,70D [CONFIDENTIAL 6 0 0 2 1 No N/A
TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
XXX00000 Xxxxxxxx [CONFIDENTIAL 6 0 0 2 1 No N/A
TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MHH05271 Belleville Washer [CONFIDENTIAL 4 0 0 2 1 No N/A
TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MHH05981 Coupling, Shaft, [CONFIDENTIAL 2 0 1 1 1 No N/A
1/4X5/16 BRE MET TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
XXX00000 X Xxxx, Xxxx-X,00X [CONFIDENTIAL 2 0 0 2 1 No N/A
TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MHM07211 Cover, Top, [CONFIDENTIAL 2 0 1 2 1 No N/A
Integrated Head TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MHM07221 Cover, Back, [CONFIDENTIAL 2 0 1 2 1 No N/A
Integrated Head TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MHM07231 Shield, Laser, [CONFIDENTIAL 2 0 1 2 1 No N/A
Integrated Head TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MMM06041 Clamp, Diode, [CONFIDENTIAL 12 0 1 1 1 No N/A
Integrated Head TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MHM07441 Craddle, Firewire Con, [CONFIDENTIAL 2 0 1 2 1 No N/A
Integrated Head TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MMM16311 Mount, Stepper Motor, [CONFIDENTIAL 2 0 0 2 2 No N/A
Integrated Head TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MMM16321 Support, Leadscrew, [CONFIDENTIAL 2 0 0 2 2 No N/A
Integrated Hd TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MMM17401 Worm Gear, Steering, [CONFIDENTIAL 6 0 0 2 1 No N/A
Integrated Head TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MMM17431 Rework, Screw, Captive, [CONFIDENTIAL 4 0 0 2 1 No N/A
Integrated Head TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MMM19591 Rework, Standoff, Bkpln, [CONFIDENTIAL 3 0 0 2 1 No N/A
Integrated Head TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MMM19791 Rework, Screw, Captive, [CONFIDENTIAL 2 0 0 2 1 No N/A
X-Adjust Cover, IH TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MMM20221 Rework, Standoff, Cover, [CONFIDENTIAL 4 0 1 2 3 No N/A
Integrated Head TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MMM21121 Cover, X-Adjust,Steering, [CONFIDENTIAL 2 0 1 2 2 No N/A
Integrated Head TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MMM22311 Pin, Alignment, Boards, [CONFIDENTIAL 2 1 2 2 1 No N/A
Integrated Head TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MMM22541 Stud, Board Mount, [CONFIDENTIAL 6 0 0 2 1 No N/A
Integrated Head TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MMM23531 Heatsink, #1, NSC, [CONFIDENTIAL 2 0 0 2 2 No N/A
24 Diode, IH TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MMM24001 Blk, Nut Holder, [CONFIDENTIAL 2 0 1 2 1 No N/A
Integrated Head TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------------
MMM27201 Gear, Worm, X-Adjust, IH [CONFIDENTIAL 12 2 4 6 1 No N/A
TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
MYY02921 Gap Pad, Thermal, [CONFIDENTIAL 2 0 0 2 1 No N/A
TopCvr Heatsink TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
RCC0002A Chiller Fluid, [CONFIDENTIAL 1 0 0 0 25 No N/A
Prop Glycol TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
RYY02651 Rubber Strip, [CONFIDENTIAL 2 0 1 2 1 No N/A
Sponge (1/2" x 1/4" x 4") TREATMENT
REQUESTED]/*/
---------------------------------------------------------------------------------------------------------------------------------
Notes:
---------------------------------------------------------------------------------------------------------------------------------
1. Shipping weights are estimates.
---------------------------------------------------------------------------------------------------------------------------------
2. Pricing subject to change.
---------------------------------------------------------------------------------------------------------------------------------
/*/ [CONFIDENTIAL TREATMENT REQUESTED] INDICATES MATERIAL THAT HAS BEEN OMITTED
AND FOR WHICH CONFIDENTIAL TREATMENT HAS BEEN REQUESTED. ALL SUCH OMITTED
MATERIAL HAS BEEN FILED WITH THE COMMISSION PURSUANT TO RULE 24B-2 PROMULGATED
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934, AS AMENDED.
EXHIBIT 8 - CONFIDENTIALITY AGREEMENT
CONFIDENTIALITY AGREEMENT
This agreement (the "Confidentiality Agreement") is made and entered
into effective as of April 5, 2002, by and between Presstek, Inc., having an
office and place of business at 00 Xxxxxxxxx Xxxxx, Xxxxxx, Xxx Xxxxxxxxx
00000-0000, XXX (hereinafter referred to as "Presstek"); and Ryobi Limited, a
corporation organized and existing under the laws of Japan, having an office and
place of business at 000 Xxxxxx-xxx, Xxxxx-xxx, Xxxxxxxxx-xxx, 000-0000, Xxxxx
(hereinafter referred to as "Ryobi").
WHEREAS, Presstek and Ryobi, simultaneous with the execution of this
Confidentiality Agreement, are entering into an agreement for the manufacturing
and distribution of the Ryobi Sun Press and the incorporation of Presstek's
Direct Imaging Kits into such presses (the "Manufacturing Agreement");
WHEREAS, in connection with (i) the Manufacturing Agreement, (ii) a potential
joint project to be entered into relating to a CTP device (the "CTP Device") and
(iii) a potential joint project to be entered into relating to a new direct
imaging press project (the "A2 Press Project"), Presstek and Ryobi may need to
disclose to each other certain confidential and proprietary information
including trade secrets, know-how and other confidential technical and business
information;
WHEREAS, Presstek and Ryobi are parties to separate Confidentiality Agreements
dated November 17, 1997 and December 22, 1998, and now desire to provide more
fully for the preservation of confidential information disclosed by one party to
the other in the course of their dealings under the Sun Press Manufacturing
Agreement, any agreement or understanding entered into in connection the CTP
Device (a "CTP Agreement") and any agreement entered into in connection with the
A2 Press Project (an "A2 Agreement");
NOW, THEREFORE, in consideration of the mutual promises herein contained, the
parties have agreed as follows:
1. The Confidentiality Agreements dated November 17, 1997 and December 22,
1998, shall be superseded by this Confidentiality Agreement after the date
of signature by both parties.
2. Information communicated by one party (the "Disclosing Party") to the
other (the "Receiving Party") which the Disclosing Party considers
confidential shall, when communicated in documentary form or on computer
tape or disc, be marked as "Confidential". In the event information is
communicated orally or by transfer of non-documentary materials, the
confidential nature of such information shall be confirmed to the
Receiving Party in writing within twenty days after such disclosure.
"Confidential Information" shall mean any and all information in any form
with respect to the Disclosing Party's technical or business matters which
are designated by the Disclosing Party as "confidential" in the manner set
forth above. Notwithstanding the provisions of this paragraph, as to those
subjects which are listed in ATTACHMENT A to this Confidentiality
Agreement, it is agreed that all disclosure of information with respect to
said subjects shall be considered "Confidential Information," regardless
of the form in which it is communicated and whether marked "confidential"
or not, unless otherwise indicated in writing by the Disclosing Party. All
confidential information communicated between the parties prior to the
effective date of this Confidentiality Agreement shall be hereafter
governed by the terms and conditions of this Confidentiality Agreement.
The obligations of the parties under each of the prior Confidentiality
Agreements are hereby confirmed as being in full force and effect, and
each party confirms that it has not disclosed or
used Confidential Information of the other party in violation of such
prior Agreements.
3. The Receiving Party shall maintain all Confidential Information of the
Disclosing Party in strict confidence, shall not publish, disseminate,
disclose or otherwise make such Confidential Information available to any
third party without the prior written consent of the Disclosing party (and
then only within the limits of such prior written consent), and shall not
use such Confidential Information for any purpose other than for the
manufacture, development, use and sale of (i) SUN Presses pursuant to the
terms of the Manufacturing Agreement, (ii) the CTP Device pursuant to any
CTP Agreement and (iii) the A2 Press Project pursuant to the terms of any
A2 Agreement. The Receiving Party agrees to limit the dissemination of,
and access to, the Confidential Information solely to employees of the
Receiving Party (together with its legal advisors) who have a "need to
know" such information, provided that such employees shall have entered
into appropriate confidentiality relationships with the Receiving Party so
as to ensure that the Receiving Party has the legal right to implement the
terms and conditions of this Confidentiality Agreement.
4. Notwithstanding paragraph 3 of this Confidentiality Agreement, the
obligation of confidentiality and non-use on the part of the Receiving
Party shall not apply to information which:
(a) the Receiving Party can establish was publicly known or was known to
the Receiving Party at the time of disclosure;
(b) becomes publicly known subsequent to the time of disclosure,
provided that such public knowledge is not the fault of, or the
result of an improper disclosure by, the Receiving Party;
(c) is subsequently received by the Receiving Party without a
confidentiality obligation from a third party which has the right to
disclose such information without a confidentiality obligation; or
(d) is required to be disclosed by applicable law, regulation or legal
process (whether by subpoena, civil investigative demand, or other
similar process), provided that if the Receiving Party is so
requested to disclose any of the Confidential Information the
Receiving Party will in the first instance take all reasonable steps
to prevent public disclosure of such Confidential Information and
will provide the Disclosing Party with prompt notice of any such
request of which the Receiving Party has knowledge so that the
Disclosing Party may seek a protective order or other appropriate
remedy, or may waive the Receiving Party's compliance with the
provisions of this Confidentiality Agreement, as appropriate.
Regardless of whether the Disclosing Party waives compliance with
the terms hereof for the purpose of such disclosure, or whether a
protective order or other appropriate remedy is obtained, the
Receiving Party will furnish only that portion of the Confidential
Information which is required to be disclosed by such applicable
law, regulation or legal process.
For purposes of the foregoing exceptions, disclosures which are specific
(for example, as to engineering and design practices and techniques,
products, software, operating parameters) shall not be deemed to be within
the foregoing exceptions to confidentiality merely because they are
embraced by general disclosures which are in the public domain or in the
possession of the Receiving Party. Any combination of features shall not
be deemed to be within the foregoing exceptions to confidentiality merely
because individual features are in the public domain or in
the possession of the Receiving Party, but only if the combination itself
and its principle of operation are in the public domain or the possession
of the Receiving Party.
5. Upon termination of the Manufacturing Agreement, any CTP Agreement or any
A2 Agreement, if requested by the Disclosing Party, all Confidential
Information relating to the Sun Press, the CTP Device or the A2 Press
Project, as the case may be, in any tangible form received by the
Receiving Party and all documents, notes, sketches, prototypes, discs,
tapes, records or other written or electronic materials prepared by the
Receiving Party containing or reflecting such Confidential Information or
abstracts or summaries thereof shall be promptly returned to the
Disclosing Party, together with all copies thereof. However, the Receiving
Party shall be entitled to retain such materials as are necessary or
appropriate for exercise of rights under the Manufacturing Agreement, any
CTP Agreement or any A2 Agreement,
as the case may be, and may retain one copy for archival purposes only.
6. Nothing contained in this Confidentiality Agreement shall be construed as
requiring either party to disclose any specific information to the other,
nor as a grant by implication, estoppel or otherwise of any license to
make, have made, use or sell any product or as a license under any patent,
patent application, utility model, copyright, trade secret, trademark, or
any other proprietary right. All such rights are or will be set forth in
the Manufacturing Agreement, any CTP Agreement or any A2 Agreement.
7. This Confidentiality Agreement shall be in force from the time it is
signed by both parties for so long as the Manufacturing Agreement, any CTP
Agreement or any A2 Agreement remain in force and for a period of five
years after each such agreement is terminated.
8. The parties acknowledge and agree that a breach of this Confidentiality
Agreement by either of them may cause irreparable damage to the
non-breaching party, that such damage would be difficult to measure, and
that such damage may not be adequately compensated by monetary damages. In
such event, a party shall have the right to xxx for injunctive relief,
without the necessity of posting a bond, or shall have the right to
specific performance of this Agreement.
9. This Confidentiality Agreement contains the entire agreement between the
parties concerning disclosure and use of Confidential Information and
cannot be altered except by an agreement between the parties in writing.
This Confidential Agreement shall be interpreted in accordance with the
laws of the State of New York, and all parties to this Confidentiality
Agreement hereby subject themselves to the jurisdiction of the courts of
the United States sitting in New York to enforce the provision of this
Confidentiality Agreement.
IN WITNESS WHEREOF, the parties have caused this Confidentiality Agreement to be
executed by their duly authorized representatives.
Presstek, Inc. Ryobi Limited
By: /s/ Xxxxxx Xxxxxxx By: /s/ T. Mifune
------------------------------ --------------------------------
Title: CEO Title: Senior Vice President
Date: 3/28/02 Date: April 5, 2002
ATTACHMENT A
I. PRESSTEK CONFIDENTIAL INFORMATION
All data, reports, analyses, compilations, studies, interpretations,
forecasts, samples, formulations, processes, designs, blueprints,
manufacturing information, technical data, know-how, inventions,
discoveries, specifications, engineering details, trade secrets, supplier
lists, customer lists, software and computer programs (in whatever form
maintained, whether documentary, computer storage or otherwise, and
expressly including materials that are observed or delivered orally)
related to the Direct Imaging Kits.
II. RYOBI CONFIDENTIAL INFORMATION
All data, reports, analyses, compilations, studies, interpretations,
forecasts, samples, formulations, processes, designs, blueprints,
manufacturing information, technical data, know-how, inventions,
discoveries, specifications, engineering details, trade secrets, supplier
lists, customer lists, software and computer programs (in whatever form
maintained, whether documentary, computer storage or otherwise, and
expressly including materials that are observed or delivered orally)
related to the Sun Presses.
