SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported) May 13, 1997
Alyn Corporation
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(Exact Name of Registrant as Specified in its Charter)
Delaware 000-21153 33-0709359
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(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification
incorporation) No.)
16761 Hale Avenue, Irvine, California 92606
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(Address of Principal Executive Offices) (Zip Code)
(714) 475-1525
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(Registrant's Telephone Number, Including Area Code)
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(Former Name or Former Address, If Changed Since Last Report.)
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ITEM 5. Other Events.
On May 14, 1997, the Registrant issued a press release, a copy of
which is attached hereto as Exhibit 99.1, announcing that it had signed an
exclusive customer agreement (the "Agreement") with True Temper Sports ("True
Temper") for Boralyn(R)-based golf club shafts. A copy of the Agreement, with
portions redacted therefrom pursuant to a request for confidential treatment, is
attached hereto as Exhibit 99.2.
True Temper will remain the Registrant's exclusive worldwide customer
for golf shaft production through August 31, 2003, subject to its meeting
minimum annual order volume requirements, specified in the Agreement, during
each of the five annual periods during the term of the Agreement, commencing
with the twelve months ending August 31, 1999, through the twelve months ending
August 31, 2003. The minimum annual order volume requirements to maintain
exclusivity increase over the term of the Agreement, and the aggregate dollar
value of all five minimum annual order value requirements is approximately $25.8
million. Minimum quarterly order volume requirements will be mutually agreed
upon by True Temper and the Registrant. The aggregate dollar amounts of True
Temper's minimum order requirements are subject to reduction for volume
purchases as specified in the Agreement. The termination date of the Agreement
and the ending dates of the twelve-month sales periods described above may vary,
depending upon the occurrence of certain events as specified in the Agreement.
Should True Temper fail to submit purchase orders for the minimum amounts
specified in the Agreement, the customer relationship between True Temper and
the Registrant shall cease to be exclusive.
ITEM 7. Financial Statements and Exhibits.
(c) Exhibits.
99.1. Press release of the Registrant, dated May 14, 1997.
99.2. Exclusive Customer Agreement, dated as of May 13, 1997, by and between
True Temper Sports and the Registrant.*
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment.
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ALYN CORPORATION
(Registrant)
Date: June 27, 1997
By: /s/ Walter R. Menetrey
---------------------------------------
Name: Walter R. Menetrey
Title: Executive Vice President and
Chief Operating Officer
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EXHIBIT INDEX
Exhibit
99.1. Press release of the Registrant, dated May 14, 1997.
99.2. Exclusive Customer Agreement, dated as of May 13, 1997, by and between
True Temper Sports and the Registrant.*
* Portions of this exhibit have been omitted pursuant to a request for
confidential treatment.
4
NEWS BULLETIN Re: ALYN CORPORATION
16761 Hale Avenue
From: The Financial Relations Irvine, California 92606
Board, Inc. NASDAQ: ALYN
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FOR FURTHER INFORMATION:
AT THE COMPANY: AT THE FINANCIAL RELATIONS BOARD:
Walter R. Menetrey Karen Taylor Moira Conlon
Chief Operating Officer General Information Investor/Analyst Contact
(714) 475-1525 (310) 442-0599 (310) 442-0599
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FOR IMMEDIATE RELEASE
MAY 14, 1997
ALYN CORPORATION SIGNS EXCLUSIVE AGREEMENT WITH TRUE TEMPER
SPORTS FOR BORALYN(R) GOLF CLUB SHAFTS
IRVINE, CA, May 14, 1997 -- Alyn Corporation (NASDAQ: ALYN), producer of high
performance Boralyn(R) and other proprietary advanced metal matrix composite
materials, announced today the signing of an exclusive customer agreement with
True Temper Sports for Boralyn(R)-based golf club shafts.
Under the multi-year agreement, True Temper Sports will manufacture golf club
shafts from Alyn's proprietary material Boralyn(R). Over the term of the
agreement, True Temper has agreed to purchase material quantities of Boralyn(R)
in order to remain the exclusive worldwide customer for golf shaft production.
The first shipment of these innovative shafts is expected in the fourth quarter
of 1997. True Temper Sports, a wholly owned subsidiary of the Black & Decker
Corporation, is the largest producer of golf club shafts throughout the world
and is consistently the number one shaft used on the PGA Tour, surpassing all
other shaft companies combined.
Robin A. Carden, Alyn's President and CEO, remarked, "The agreement with True
Temper Sports is a significant milestone for Alyn Corporation. We are thrilled
that a company with such a presence in the golf shaft market views Boralyn(R) as
an exciting new material. Boralyn(R) will provide golfers with a strong,
lightweight shaft with excellent `feel'. By combining this new agreement with
our existing agreement with Taylor Made Golf for Boralyn(R) metalwood heads,
Alyn's presence in the high-end golf market has been greatly enhanced."
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<PAGE>
Alyn Corporation designs, develops, manufactures and markets consumer and
industrial products utilizing its high performance Boralyn(R) material and other
proprietary advanced metal matrix composite materials for a variety of selected
markets.
Except for historical information contained herein, this document contains
forward-looking statements within the meaning of the Private Securities
Litigation Reform Act of 1995. These statements involve known and unknown risks
and uncertainties that may cause the Company's actual results or outcomes to be
materially different from those anticipated and discussed herein. Further, the
Company operates in an industry sector where securities values may be volatile
and may be influenced by regulatory and other factors beyond the Company's
control. Important factors that the Company believes might cause such
differences are discussed in the cautionary statements accompanying the
forward-looking statements in the Annual Report on Form 10-K and in the risk
factors detailed in the Company's Prospectus, dated October 22, 1996, filed with
the Securities and Exchange Commission. In assessing forward-looking statements
contained herein, readers are urged to read carefully all cautionary statements
contained in those filings with the Securities and Exchange Commission.
###
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This document is submitted as CONFIDENTIAL.
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Exemption from disclosure to non-governmental parties of this document and any
copies of it is claimed under the Freedom of Information Act and applicable
rules and regulations of the Securities and Exchange Commission (the
"Commission"). It is requested that before any disclosure is permitted of this
document or any part or copies of it, timely notice be given to Battle Fowler
LLP, 75 East 55th Street, New York, New York 10022, (212) 856-7000.
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EXCLUSIVE CUSTOMER AGREEMENT
by and between
TRUE TEMPER SPORTS
and
ALYN CORPORATION
dated as of
May 13, 1997
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<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS....................................................1
ARTICLE 2 DESIGN OF PRODUCT; MANUFACTURE OF PRODUCT......................4
2.1 Design.........................................................4
2.2 Tooling........................................................4
2.3 Manufacturing..................................................4
ARTICLE 3 PURCHASE PRICE AND PAYMENT TERMS...............................5
3.1 Purchase Price.................................................5
3.2 Payment Terms..................................................5
ARTICLE 4 PURCHASE ORDERS AND DELIVERY...................................5
4.1 Quantity.......................................................5
4.2 Purchase Orders................................................6
4.3 Acceptance and Acknowledgement.................................6
4.4 Order Discrepancy..............................................6
4.5 Substantial Performance........................................6
4.6 Return Policy..................................................6
4.7 Terms of Delivery..............................................6
4.8 Point of Delivery and Risk of Loss.............................7
4.9 Invoice........................................................7
4.10 Taxes..........................................................7
4.11 Title to Non-Conforming Product................................7
4.12 Designation of Carrier; Freight and other Related Charges......7
ARTICLE 5 EXCLUSIVE CUSTOMER RELATIONSHIP................................7
5.2 Continuing Development.........................................9
5.3 Display of Boralyn(R)Name and Trademark........................9
5.4 Right to Approve TTS Promotion Protocol........................9
5.5 Right to Approve Alyn Advertisements......................... 10
5.6 TTS's Sole Control of Customer Matters....................... 10
5.7 Survival of Certain Provisions............................... 10
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF ALYN....................... 10
6.1 Authority; Binding Effect.................................... 10
6.2 Patents, Trademarks and Lawsuits............................. 11
6.3 Warranties................................................... 11
ARTICLE 7 REPRESENTATIONS AND WARRANTIES OF TTS........................ 11
7.1 Authority; Binding Effect.................................... 11
7.2 Warranties................................................... 12
ARTICLE 8 CONFIDENTIALITY AND INVENTIONS............................... 12
8.1 Disclosure of Confidential Information....................... 12
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8.2 Use of Joint Confidential Information........................ 12
8.3 Exclusions from Confidential Information..................... 13
8.5 Inventions................................................... 13
8.7 Transfer of Ownership; Return of Information................. 14
ARTICLE 9 INDEMNIFICATION.............................................. 14
9.1 Indemnification by Alyn...................................... 15
9.2 Indemnification by TTS....................................... 15
ARTICLE 10 TERMINATION.................................................. 16
10.1 Term......................................................... 16
10.2 Termination By Non-Breaching Party........................... 16
10.3 Effect of Termination........................................ 16
ARTICLE 11 INSURANCE.................................................... 17
11.1 Required Limits.............................................. 17
11.2 Certificates of Insurance.................................... 17
ARTICLE 12 PUBLICITY.................................................... 18
ARTICLE 13 MISCELLANEOUS................................................ 18
13.1 Governing Law................................................ 18
13.2 Counterparts................................................. 18
13.3 Headings..................................................... 18
13.4 Severability................................................. 19
13.5 Force Majeure................................................ 19
13.6 Notices...................................................... 19
13.7 Waiver; Modification of Agreement............................ 20
13.8 Entire Agreement............................................. 20
13.9 Assignment................................................... 20
13.10 Remedies..................................................... 21
13.11 Superseding Provisions....................................... 21
SCHEDULES AND EXHIBITS
Schedule 1.10 Product Description
Schedule 3.1 Price Schedule
Schedule 4.1 Minimum Purchases To Maintain Exclusive Customer Relationship
*
Schedule 5.4 TTS Promotional Materials/Pre-Approved Alyn Boralyn(R)Graphic
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* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
Exhibit I Form of Initial Press Release
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<PAGE>
This Exclusive Customer Agreement (referred to hereinafter as the
"Agreement") is entered into as of this 13th day of May, 1997, by and between
TRUE TEMPER SPORTS ("TTS"), a division of Emhart Industries, Inc., a Connecticut
corporation, with offices at 8275 Tournament Drive, Memphis, Tennessee 38125,
and ALYN CORPORATION ("Alyn"), a Delaware corporation with executive offices at
16761 Hale Avenue, Irvine, California 92606. Throughout this Agreement, TTS and
Alyn shall be referred to, collectively, as "the Parties" and, each
individually, as a "Party."
PRELIMINARY STATEMENTS
WHEREAS, Alyn has been awarded a U.S. Patent and a Divisional Patent
for its boron carbide metal matrix composite known as Boralyn(R), which, among
other things, can be used in the manufacture of golf club shafts; and
WHEREAS, TTS is engaged, among other things, in the manufacture and
sale of golf club shafts; and
WHEREAS, initially TTS wishes to buy from Alyn, and Alyn desires to
sell to TTS, pursuant to this Agreement, certain quantities of * tubing made
from and/or using or incorporating Alyn's patented Boralyn(R) material for the
eventual manufacture of golf club shafts, upon the terms and conditions set
forth herein;
NOW, THEREFORE, for and in consideration of the premises and the
mutual promises and benefits contained herein, the receipt and sufficiency of
which is hereby acknowledged, the Parties hereto hereby agree as follows:
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
set forth below:
1.1 "Affiliate," when used with respect to a party in question, means
any natural person, corporation, firm, partnership, or other entity who is an
executive officer or director of such party in question or which, directly or
indirectly, owns, is owned by, or is under common ownership with such party in
question to the extent of more than twenty (20%) percent of the equity having
the power either to vote on or to direct the affairs of such party in question,
or otherwise controls, is controlled by or is under common control with such
party in question.
1.2 "Boralyn(R)" shall mean the name "Boralyn(R)" and the depiction
set forth in Schedule 5.4 hereof.
* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
1.3 "Commercial Alyn Product" shall mean the first Boralyn(R)-based
* (which term, for purposes of this Agreement, shall also mean, as
the case may be, Boralyn(R)-based * capable of being formed into * and,
thereafter) capable of being fabricated by TTS into a golf club shaft that
meets the design specifications and acceptance criteria prescribed in Section
2.1 hereof and that is suitable for such fabrication by TTS in commercial
volume.
1.4 "Confidential Information" means all proprietary Know How (as
hereinafter defined). As used herein, the term "Alyn Confidential Information"
shall mean Confidential Information that is proprietary to Alyn; the term "TTS
Confidential Information" shall mean Confidential Information that is
proprietary to TTS; and the term "Joint Confidential Information" shall mean
Confidential Information that is first developed during discussions between the
parties under this Agreement and that is identified as Confidential Information
by either Party.
1.5 "Delivery Date" means any date upon which a Product is to be
delivered by Alyn pursuant to a Purchase Order from TTS.
1.6 "Effective Date" shall mean May 13, 1997.
1.7 "Know How" means all data, instructions, processes, formula,
expert opinions, and information relating to the manufacture, use, sale,
marketing, or marketing forecasts, or information of a commercial nature
regarding a Product or any TTS Product. Know How shall include, without
limitation, all chemical, toxicological, physical, analytical, safety, quality
control, manufacturing and other data and information relating to the
manufacture, fabrication, use, or sale of any Product or any TTS Product.
1.8 "Month" means any calendar month; "Sales Quarter" means any three
(3) consecutive Months within, and forming a quarterly portion of, a Sales Year;
"Year" means any twelve (12) consecutive Months; and "Sales Year" means any
consecutive twelve (12) Month period comprised of four (4) consecutive Sales
Quarters.
1.9 "Non-Conforming Product" means a Product that has been delivered
to TTS hereunder but does not meet the warranty for that Product set forth in
Article 6 hereof.
1.10 "Product" shall mean, initially upon execution of this Agreement,
the first Commercial Alyn Product identified in Section 1.3 hereof and Schedule
1.10 hereto, ready for delivery by Alyn to TTS in unfinished form in accordance
with the design specifications and acceptance criteria prescribed in Section 2.1
hereof that relate thereto, and, thereafter, the term "Product" or "Products"
shall also mean any subsequent or additional Boralyn(R)-based * that
is capable of being fabricated by TTS into a golf club shaft that meets design
specifications and acceptance criteria prescribed therefor by TTS in commercial
volume, and that is or has been added to Schedule 1.10 hereafter by mutual
agreement of the Parties.
1.11 "Purchase Order," when used with respect to a Product, shall mean
a written and binding order on behalf of TTS submitted to and accepted by Alyn
with respect
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* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
to the delivery of such Product by Alyn to TTS, all in accordance with the terms
and provisions hereof.
1.12 "Purchase Price" shall have such meaning as is set forth in
Section 3.1 of this Agreement.
1.13 "Unit" means that * of Boralyn(R)-based seamless tube (or, as the case
may be, that amount of * of Boralyn(R)-based * that is capable of being formed
into that length of Boralyn(R)-based *) that is capable of being fabricated by
TTS into a golf club shaft, and that initially is a Commercial Alyn Product (as
defined in Section 1.3 hereof) and thereafter is a Product (as defined in
Section 1.10 hereof), that is designed to yield one TTS Product in accordance
with the design specifications set forth in Section 2.1 hereof.
1.14 "Design" shall have the meaning set forth in Section 2.1 of this
Agreement.
1.15 "Patents and Trademarks" shall have the meaning set forth in
Section 6.2 of this Agreement.
1.16 "Manufacturing Plant" shall have the following meanings:
(a) an "Alyn Manufacturing Plant" shall mean any plant or facility at
which one or more Products (including a Commercial Alyn Product) is manufactured
and that is owned or operated by Alyn or one of its Affiliates, and shall
include (but not be limited to) Alyn's facility at Irvine, California;
(b) an "Alyn-Approved Manufacturing Plant" shall mean any plant or
facility that is not owned or operated by either of the Parties, but is approved
by each of the Parties and at which the manufacture of one or more Products
(including a Commercial Alyn Product) is under the sole, direct supervision and
control of Alyn;
(c) a "TTS Manufacturing Plant" is any plant or facility owned or
operated by TTS or one of its Affiliates (a "TTS Manufacturing Plant" may also
be an "Alyn-Approved Manufacturing Plant" with respect to a given Product
(including a Commercial Alyn Product) if it has been both approved by Alyn and
is under the sole, direct supervision and control of Alyn with respect to the
manufacture of such Product therein, it being understood that as used herein the
Product shall be the Product in the form it would be delivered by Alyn to TTS if
it were produced solely at an Alyn Manufacturing Plant); and
(d) an "Other Manufacturing Plant" shall be any other manufacturing
facility.
1.17 "Substantially Similar Product" shall mean a * product (or
* capable of being formed into a * product) that is, or is to be, or
is capable of being, fabricated into a golf club shaft made or using Alyn's
patented Boralyn(R) material and having the same or a substantially similar use
or function to a Product, but which is not
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* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
made for TTS (or any of its Affiliates) and that is capable of being fabricated
into a golf club shaft that could or does compete with a TTS Product.
*
1.19 "TTS Product" shall mean a golf club shaft that is fabricated by
TTS from a Boralyn(R)-based * that is capable of being fabricated by
TTS into a golf club shaft that is or has been added to Schedule 1.10 hereof in
accordance with Sections 1.3, 1.10 and 2.1 hereof, including initially a
Commercial Alyn Product.
ARTICLE 2
DESIGN OF PRODUCT; MANUFACTURE OF PRODUCT
2.1 Design. The design of each Product (the "Design") shall be in
accordance with approved specifications of TTS as set forth in drawings, in
other suitable written or CAD data or physical model format, or in such other
form as is customarily used by TTS, and delivered to Alyn by TTS. TTS shall also
specify in writing to Alyn the acceptance criteria and anticipated testing
procedures that TTS will apply to each Product. Alyn and TTS shall cooperate
with each other in connection with the development of each Design. The foregoing
to the contrary notwithstanding, the Design of each Product is and shall be
considered proprietary to TTS, and Alyn shall not use the Design, or cooperate
with others in using the Design during the period of exclusivity provided for in
this Agreement (which may be the Term hereof), unless authorized by TTS. After
such Term, Alyn shall have the unqualified right to use, or authorize others to
use, the Design of each Product. The acceptance of a Design in final form will
be the responsibility of TTS, which acceptance shall be signified in a writing
delivered to Alyn.
2.2 Tooling. After the approval by TTS of the Design for each Product
(including the Commercial Alyn Product), Alyn shall, at its expense, develop the
proper tooling for the manufacture of such Product in the form in which it is to
be delivered to TTS, and TTS shall, at its expense, develop the proper tools for
the completion of the fabrication of that Product into a TTS Product following
TTS's receipt of such Product from Alyn.
2.3 Manufacturing. Until a Product reaches the stage where it is to be
delivered by Alyn to TTS, such Product shall be manufactured at an Alyn
Manufacturing Plant, provided, however, if Alyn shall be unable, in the
reasonable opinion of TTS, to fulfill timely the production volume requirements
of any Purchase Order related to such Product, such Purchase Order shall be sent
for completion to a second source that is an Alyn-Approved Manufacturing Plant
(which may include a TTS Manufacturing Plant as set forth in, and subject to the
conditions of, Section 1.16(c) of this Agreement). All processes and materials
used at an Alyn Manufacturing Plant or an Alyn-Approved Manufacturing Plant in
the manufacture of any Product, until the Product reaches the stage where it is
to be delivered by Alyn to TTS, shall be proprietary to and remain the sole
property of Alyn,
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* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
provided, however, a Product in completed form, when delivered to TTS in
accordance with the terms and conditions hereof, shall become the property of
TTS.
ARTICLE 3
PURCHASE PRICE AND PAYMENT TERMS
3.1 Purchase Price. The Purchase Price for each Product (the "Purchase
Price") will be calculated in accordance with that part of Schedule 3.1, Price
Schedule that relates to such Product. In all cases, the Purchase Price shall be
FOB the applicable Alyn Manufacturing Plant or Alyn-Approved Manufacturing
Plant, as the case may be, in the United States, with all freight, shipping,
taxes and other similar charges being borne by TTS.
3.2 Payment Terms. TTS shall pay the Purchase Price for a given
Product (if it is not a Non-Conforming Product) within sixty (60) days of the
delivery of such Product to TTS. If TTS makes such payment within thirty (30)
days of the delivery of the Product by Alyn, TTS shall be entitled to a one (1%)
percent discount on the Purchase Price. The payment shall be increased by a late
fee of one and one-half (1 1/2%) percent of the Purchase Price for any Product
received by TTS for each thirty (30) calendar day period that payment is past
due. Payment will be deemed past due after sixty (60) calendar days of Alyn's
release of the Product in question to TTS's authorized shipping agent at the
Alyn Manufacturing Plant or the Alyn-Approved Manufacturing Plant, as the case
may be, in accordance with Section 4.7. Failure by TTS to pay within sixty (60)
days after Alyn's delivery of written notice as described in Section 4.9 hereof
shall be a material breach of this Agreement.
ARTICLE 4
PURCHASE ORDERS AND DELIVERY
4.1 Quantity. Solely for the purpose of facilitating Alyn's production
planning and organization, TTS shall, at least three Months prior to the
beginning of each Sales Year reflected in Schedule 4.1 hereto, advise Alyn in
writing with respect to TTS's anticipated minimum quantities for each Product
for such Sales Year, and thereafter TTS shall, at the beginning of each Sales
Quarter within such Sales Year advise Alyn in writing of any change in such
anticipated minimum quantities and shall provide to Alyn a written quantity
production forecast of the anticipated quantity for each Product ("Forecast")
for each of the last two (2) Months within, and for the Month immediately
following, such Sales Quarter. The advice and Forecast provided by TTS to Alyn
under this Section 4.1 shall not be a binding purchase commitment by TTS and
shall not constitute a Purchase Order.
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<PAGE>
4.2 Purchase Orders. TTS shall submit to Alyn Purchase Orders
specifying, subject to Section 4.1, the quantities of Product that TTS shall
purchase and the Delivery Dates of such Product; provided, however, that no
Delivery Date shall be less than ninety (90) days (or such shorter period as
shall be discussed and developed as the production and delivery process becomes
institutionalized in good faith by the Parties) from the date of receipt by Alyn
of such Purchase Order, and provided further, however, that Delivery Dates for
each Product shall be spaced over a reasonable period on a quarterly and annual
basis.
4.3 Acceptance and Acknowledgement. Alyn shall accept each Purchase
Order (unless such Purchase Order exceeds by at least fifty (50%) percent the
number of Units in the relevant Forecast delivered to Alyn in accordance with
Section 4.1 hereof, or as otherwise mutually agreed in writing by the Parties),
shall acknowledge in writing the receipt and such acceptance of each Purchase
Order, and shall confirm Delivery Dates for quantities of Product that are the
subject of each Purchase Order.
4.4 Order Discrepancy. In the event of any discrepancy between (i) the
provisions set forth in this Agreement and (ii) any Purchase Order, Purchase
Order confirmation, Order acknowledgement or other communication (whether
acknowledged or not) between the Parties relating to an order of Products, the
provisions of this Agreement shall prevail.
4.5 Substantial Performance. The obligation of Alyn, pursuant to any
Purchase Order, to supply a particular amount of Product on a Delivery Date
shall be deemed satisfied upon delivery by Alyn of no less than 95% of the
amount of Product specified.
4.6 Return Policy. TTS agrees that TTS shall not be permitted to
return to Alyn any Product delivered pursuant to a Purchase Order for credit,
unless such goods constitute Non-Conforming Products.
4.7 Terms of Delivery. Alyn shall make all reasonable efforts to
deliver the quantities of Product to TTS on the Delivery Dates and in the
amounts set forth by TTS in the Purchase Orders related thereto, but in no event
shall actual delivery occur more than fifteen (15) calendar days after such
Delivery Date so set forth. In the event actual delivery occurs more than
fifteen (15) calendar days after such Delivery Date, other than as a result of a
delay primarily caused by an event described in Section 13.5, the total Purchase
Price to be paid by TTS to Alyn for the quantity of Product ordered for delivery
on such Delivery Date shall be reduced by an amount equal to two (2%) percent of
the total Purchase Price for each ten calendar days (or portion thereof) that
the delivery is delayed after such fifteen (15) day period. In the event Alyn
shall fail to supply such Product in such specified quantities within ninety
(90) calendar days after the Delivery Date set forth in the original Purchase
Order, TTS may accept delivery of such Product when it is ready for delivery or,
at its sole election, shall, upon written notice thereof to Alyn, have no
further obligation to Alyn with respect to such Purchase Order or the payment of
the Purchase Price for such Product.
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<PAGE>
4.8 Point of Delivery and Risk of Loss. Product shall be delivered FOB
the Alyn Manufacturing Plant or the Alyn-Approved Manufacturing Plant in the
United States, as the case may be, and Alyn shall provide TTS with written
notice of delivery of such Product. The risk of loss shall pass to TTS upon
receipt of the Product by TTS's authorized agents at that facility. If TTS shall
fail to accept delivery of any Product within three (3) business days of written
notice from Alyn that such Product is ready for delivery, TTS shall become
responsible for payment with respect to such Product, in accordance with the
terms hereof, immediately following passage of said three (3) business day
period.
4.9 Invoice. Upon delivery of the Product in accordance with a
Purchase Order, Alyn shall present to TTS an invoice for the quantity of the
Product covered thereby, in each case at the Purchase Price determined pursuant
to the terms of Article 3.
4.10 Taxes. Any federal, state, county, or municipal sales or use tax,
excise, or similar charge, or any other tax assessment (other than that assessed
against income), or other charge lawfully assessed or charged by any
governmental agency or authority on the sale, use, or transportation of any
Product pursuant to this Agreement shall be paid by the Party against whom such
tax or charge is assessed.
4.11 Title to Non-Conforming Product. The Parties agree that title to
any Non-Conforming Product shall revert to Alyn or its designee upon return of
such Non-Conforming Product by TTS to Alyn, FOB TTS's loading dock.
4.12 Designation of Carrier; Freight and other Related Charges. TTS
shall be solely responsible for designating and retaining the carrier for
shipment of Product to TTS or for TTS's account and shall bear all freight,
shipping, tax and other similar charges.
ARTICLE 5
EXCLUSIVE CUSTOMER RELATIONSHIP
5.1 Maintenance of Exclusivity; Related Sole Remedy.
(a) Upon the terms and subject to the conditions set forth herein,
Alyn hereby agrees that it shall not sell any Product or Substantially Similar
Product to any person, firm or entity other than TTS during the Exclusive Period
(hereinafter defined).
(b) The Exclusive Period shall commence on the Effective Date of this
Agreement and shall terminate upon the earlier to occur of:
*
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* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
*
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* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
*
5.2 Continuing Development. As part of their overall mutual
development program, Alyn and TTS shall each use all reasonable efforts and
cooperation to develop techniques and processes for the design and production of
Products that will improve Product performance, and any such development will be
covered by and be subject to the terms, provisions, respective rights and
obligations of this Agreement, without further consideration (except for the
payment of the Purchase Price in accordance with, and compliance with the other
terms and conditions of, this Agreement).
5.3 Display of Boralyn(R) Name and Trademark. Alyn and TTS shall use
reasonable commercial efforts to cause both a TTS trademark or name and the name
"Boralyn(R)" is to be displayed on each TTS Product, in a physical location such
that, subject to approval as to location by the customer of TTS for such TTS
Product, both names can be clearly viewed and read by purchasers of the golf
club of which it is a component, provided, however, that if a customer requests
that one or both of a TTS trademark or name or the "Boralyn(R)" name be omitted
from a given TTS Product for that customer, TTS and Alyn shall accede to such
request. The delineation and location on a TTS Product of other names and
trademarks, and the location of the name "Boralyn(R)", shall be determined by
TTS in its sole discretion (subject to the foregoing), but the Boralyn(R) mark
shall be placed in a manner such that the Boralyn(R) mark could not be mistaken
as not being independent from any other name or trademark. TTS will promptly
advise Alyn in writing of any infringement of Alyn's trademark that comes to the
attention of TTS, if such infringement involves either a Product or a TTS
Product.
5.4 Right to Approve TTS Promotion Protocol. Samples of the text of
all advertising or other promotional material prepared by or for TTS and
referring to Alyn or Boralyn(R), including but not limited to brochures, radio
or television commercials, worldwide web sites, and magazine and newspaper
advertisements, shall be submitted at least ten (10) business days prior to the
first use or publication thereof, to Alyn for its approval, which approval shall
not be unreasonably withheld, provided, however, no prior approval shall be
required for graphic reference to Alyn or Boralyn(R) if and to the extent it
conforms
-9-
* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
as to form and color with Schedule 5.4 hereto. TTS shall not publish or
distribute such advertising or other promotional material unless and until Alyn
has received written or facsimile approval thereof from Alyn.
5.5 Right to Approve Alyn Advertisements. Samples of all advertising
or other promotional material prepared by or for Alyn and referring to TTS or
any Product, including but not limited to brochures, radio or television
commercials, worldwide web sites, and magazine and newspaper advertisements,
shall be submitted at least ten (10) business days prior to any proposed sale,
shipment, publication or other distribution, to TTS for its approval, which
approval shall not be unreasonably withheld, provided, however, if any such
material shall be required, in the opinion of Alyn's legal counsel, to be filed
with the Securities and Exchange Commission in order to comply with any
requirement of the Federal securities laws or to be the subject of a press
release to satisfy listing requirements of NASDAQ (or a stock exchange), and
notice thereof shall be given to TTS by Alyn, then such ten (10) day period
shall be reduced in accordance with such requirement, which shall be specified
in such notice. Alyn shall not publish or distribute any such advertising or
other promotional material unless and until Alyn has received written or
facsimile approval thereof from TTS.
5.6 TTS's Sole Control of Customer Matters. In entering into this
Agreement, each Party acknowledges that, except as herein otherwise expressly
provided, TTS has and shall retain the complete and unfettered right and
discretion as to all matters affecting its marketing and sale of all TTS
Products, and nothing in this Agreement shall in any way affect or otherwise
restrain TTS's unilateral and independent pricing decision on the sale or resale
(whether at wholesale or retail) of a TTS Product to any third party.
5.7 Survival of Certain Provisions. The rights and obligations set
forth in the provisions of Sections 5.3, 5.4, 5.5 and 5.6 herein shall survive
the termination of this Agreement.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF ALYN
Alyn represents and warrants to TTS as follows:
6.1 Authority; Binding Effect.
Alyn is a corporation duly organized and existing under the laws of
Delaware; Alyn has the corporate power and authority to execute, deliver, and
perform this Agreement and the transactions contemplated hereby and the
execution and delivery of this Agreement have been duly authorized by Alyn; the
execution, delivery, and performance of this Agreement and the consummation of
the transactions contemplated hereby do not and will not violate or conflict
with any provision of Alyn's Certificate of Incorporation or Bylaws or, to the
best knowledge of the individuals signing this Agreement, any agreement,
instrument, law or regulation to which Alyn is a party or by which Alyn is
bound; no governmental or other approval or authorization of this Agreement
-10-
<PAGE>
or the acts or transactions contemplated hereby is required by law or otherwise
in order to make this Agreement binding upon Alyn; and this Agreement, and all
other instruments required hereby to be executed and delivered to TTS by Alyn
are, or when delivered to TTS in accordance herewith, will be, legal, valid and
binding instruments of Alyn enforceable in accordance with its terms.
6.2 Patents, Trademarks and Lawsuits.
6.2.1 Patents and Trademarks. (a) Alyn owns all patents, rights
to patents, patent applications, trademarks and trade names necessary for it to
satisfy the conditions of its performance hereunder (the "Patents and
Trademarks"); (b) the issued Patents and Trademarks are subsisting and have not
been adjudged invalid or unenforceable, in whole or in part, and there is no
litigation or proceeding pending concerning the validity or enforceability of
the issued Patents and Trademarks; (c) to the best of Alyn's knowledge, each of
the issued Patents and Trademarks is valid and enforceable; (d) to the best of
Alyn's knowledge, there is no infringement by others of the issued Patents and
Trademarks; and (e) no claim has been made that the use of any of the Patents
and Trademarks does or may violate the rights of any third person, and to the
best of Alyn's knowledge the use of the Patents and Trademarks does not infringe
upon the patent or trademark rights of any third party.
6.3 Warranties.
(a) Alyn warrants to TTS that each Product delivered to TTS pursuant
to this Agreement will be of good material and workmanship, free from
defects, and conform to the specifications, Design and samples regarding
that Product as described in Schedule 1.10 and prescribed in accordance
with Section 2.1 of this Agreement.
(b) ALYN MAKES NO REPRESENTATIONS OR WARRANTIES EXCEPT AS EXPRESSLY
SET FORTH IN THIS AGREEMENT AND ALYN SHALL HAVE NO LIABILITY OR
RESPONSIBILITY FOR, WITH RESPECT TO OR STEMMING FROM ANY PRODUCT EXCEPT (i)
AT ITS EXPENSE (INCLUDING FREIGHT CHARGES IN AND OUT) TO PROMPTLY REPAIR OR
REPLACE ANY PRODUCT THAT IS DEFECTIVE AND IS RETURNED TO IT and (ii) THAT
WHICH IS PROVIDED FOR IN SECTION 9.1 OF THIS AGREEMENT.
ARTICLE 7
REPRESENTATIONS AND WARRANTIES OF TTS
TTS represents and warrants to Alyn as follows:
7.1 Authority; Binding Effect.
TTS is a division of Emhart Industries, Inc. ("EII"), a corporation
duly organized and existing under the laws of the State of Connecticut; TTS has
the power and
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<PAGE>
authority to execute, deliver, and perform this Agreement and the transactions
contemplated hereby, and the execution and delivery of this Agreement have been
duly authorized by TTS and, to the extent required by applicable law or
agreement, by EII; the execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated hereby do not and will not
violate or conflict with any provision of EII's Certificate of Incorporation or
Bylaws or, to the best of the knowledge of the individuals signing this
Agreement, any agreement, instrument, law, or regulation to which TTS or EII is
a party or by which TTS or EII is bound; no governmental or other approval or
authorization of this Agreement or the acts or transactions contemplated hereby
is required by law or otherwise in order to make this Agreement binding upon
TTS; and this Agreement, and all other instruments required hereby to be
executed and delivered to Alyn by TTS are, or when delivered will be, legal,
valid, and binding instruments of TTS enforceable in accordance with its terms.
7.2 Warranties.
TTS represents that its normal product warranties, as in effect from
time to time, shall apply to the TTS Products.
(a) TTS MAKES NO REPRESENTATIONS OR WARRANTIES EXCEPT AS EXPRESSLY SET
FORTH IN THIS AGREEMENT.
ARTICLE 8
CONFIDENTIALITY AND INVENTIONS
8.1 Disclosure of Confidential Information.
During the Term of this Agreement, Alyn will disclose Alyn
Confidential Information to TTS and TTS will disclose TTS Confidential
Information to Alyn on the following terms:
(a) The recipient will receive, maintain, and hold Confidential
Information in strict confidence and will, at a minimum, use the same level
of care in safeguarding it that it uses with its own confidential material
of a similar nature;
(b) The recipient will take all such steps as may be reasonably
necessary to prevent the disclosure of Confidential Information; and
(c) The recipient will not utilize Confidential Information, other
than strictly for meeting its obligations hereunder, without first having
obtained the disclosing Party's written consent to such utilization.
8.2 Use of Joint Confidential Information. *
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* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
*
8.3 Exclusions from Confidential Information.
The commitments set forth in Section 8.1 above shall not extend to any
portion of Confidential Information:
(a) which is known to the recipient prior to disclosure or is
information generally available to the public;
(b) which was not acquired, directly or indirectly and/or in any
manner, from the disclosing Party and which the recipient lawfully had in
its possession prior to the Effective Date;
(c) which, hereafter, through no act or omission on the part of the
recipient, becomes information generally available to the public;
(d) which corresponds in substance to information furnished to the
recipient on a nonconfidential basis by any third party having a legal
right to do so; or
(e) which is required to be disclosed in response to legal process, or
to the extent a Party is advised by counsel that such action is required or
advisable to comply with federal or state laws or regulations; provided
that the Party whose Confidential Information is being disclosed is
notified in writing by the disclosing Party so as to allow an opportunity
for the Party whose Confidential Information is being disclosed to seek a
protective order or other relief.
8.4 Term of Confidential Obligations. The obligations of each Party
regarding Confidential Information received from the other Party and regarding
Joint Confidential Information shall survive termination of this Agreement for a
period of three Years.
8.5 Inventions.
(a) Patentable or potentially patentable inventions arising during the
term of this Agreement as a direct result of work performed hereunder
("Inventions") shall be the property of either party alone or both parties
jointly, depending on the inventorship thereof.
(b) Each Party shall promptly and fully disclose to the other Party
each Invention upon its conception and/or its reduction to practice.
(c) TTS shall have the exclusive, world-wide royalty-free right and/or
license to make, have made, use, import, sell and/or offer to sell covered
products under any Inventions (but not under any other Alyn rights) in the
TTS Field.
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* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
(d) Alyn shall have the exclusive, world-wide royalty-free right
and/or license to make, have made, use, import, sell and/or offer to sell
covered products under any Inventions (but not under any other TTS rights)
in all other fields.
(e) Each Party shall have the first right, after consultation with the
other Party, to file, prosecute, issue and maintain patent applications and
patents covering Inventions as to which it has an ownership interest. If
either Party elects not to do so, and if patent coverage licensed to the
other Party is potentially available, then it shall offer to the other
Party the opportunity to pursue such patent applications and patents.
8.6 Term of Licenses. The rights to use and licenses granted in
Sections 8.2, 8.5(c) and 8.5(d) shall survive the termination of this Agreement
and shall extend for a period of three years in the case of Confidential
Information and for the life of any filed or granted patents.
8.7 Transfer of Ownership; Return of Information.
(a) Neither this Agreement nor any disclosure made hereunder by either
Party shall be deemed, by implication or otherwise, to vest in the
recipient any ownership right to any patents, trademarks, Confidential
Information, or trade secrets.
(b) At any time upon written request by the disclosing Party, (i) the
Confidential Information, including any copies, shall be returned to the
disclosing Party (with the exception of a single copy thereof which may be
kept by the recipient to establish the extent of disclosure of Confidential
Information by the disclosing Party) and (ii) all documents, drawings,
sketches, models, designs, data, memoranda, tapes, records, and any other
material whatsoever developed by the recipient which relates to such
Confidential Information, including all copies and/or any other form of
reproduction and/or description thereof made by the recipient (with the
exception of a single copy thereof which may be kept by the recipient to
establish the extent of disclosure of Confidential Information by the
disclosing Party), shall, at the disclosing Party's option, be returned to
the disclosing Party or destroyed.
ARTICLE 9
INDEMNIFICATION
9.1 Indemnification by Alyn.
Alyn shall indemnify and hold harmless TTS and its officers,
directors, shareholders, agents, employees and Affiliates (collectively, "TTS")
from and against any and all liability, damage, loss, cost, or expense
(including reasonable attorneys' fees and disbursements) resulting from any
third party claim made, investigation, product recall, or legal proceeding
(individually and collectively, a "Proceeding") brought against TTS or to
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<PAGE>
which TTS is subject to the extent such Proceeding arises or is alleged to arise
as a result of (i) Alyn's negligence or willful misconduct; (ii) Alyn's breach
of any of its representations or warranties set forth herein; (iii) Alyn's
material breach of any of the other terms of this Agreement, or (iv) is
otherwise caused by or arises or is alleged to arise out of the manufacture,
storage, or sale of any Product by Alyn. Upon being notified of any such
Proceeding, TTS shall promptly notify Alyn in writing thereof and shall permit
Alyn, at the sole cost and expense to Alyn, to defend and control the defense of
such Proceeding. TTS shall have the right to participate in the defense of such
Proceeding at its own expense to the extent TTS's interests may be affected in
such Proceeding.
9.2 Indemnification by TTS.
TTS shall indemnify and hold harmless Alyn and its officers,
directors, shareholders, agents, employees and Affiliates (collectively, "Alyn")
from and against any and all liability, damage, loss, cost, or expense
(including reasonable attorneys' fees and disbursements) resulting from any
third party claim made, investigation, product recall, or legal proceeding
(individually and collectively, a "Proceeding") brought against Alyn or to which
Alyn is subject to the extent such Proceeding arises or is alleged to arise as a
result of (i) TTS's negligence or willful misconduct; (ii) TTS's breach of any
of its representations or warranties set forth herein; (iii) TTS's material
breach of any of the other terms of this Agreement; (iv) is made in connection
with a TTS Product and arises or is alleged to arise other than from breach of
the Product warranties made by Alyn to TTS herein; or (v) is otherwise caused by
or arises or is alleged to arise out of the use of any Product by TTS or the
marketing, distribution or sale of a TTS Product by TTS, including (but not by
way of limitation) by reason of infringement on any trademark or other
contravention or violation of any right or property interest of any other
individual person, firm, company, corporation or other entity. Upon being
notified of any such claim, investigation or legal proceeding, Alyn shall
promptly notify TTS in writing thereof and shall permit TTS at its sole cost and
expense to defend and control the defense of such claim or legal proceeding.
Alyn shall have the right to participate in the defense of such claim or legal
proceeding at its own expense to the extent that Alyn's interests may be
affected in such Proceeding.
ARTICLE 10
TERMINATION
10.1 Term. *
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* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
*
10.2 Termination By Non-Breaching Party. In addition and subject to
Alyn's right to terminate the exclusive customer relationship set forth in this
Agreement pursuant to Article 5 hereof, Alyn or TTS may immediately terminate
this Agreement upon giving written notice thereof to the other Party in the
event that the other Party shall have breached or defaulted in any material
respect in the performance of an obligation imposed on such other Party
hereunder; provided, that in the case of a breach or default other than a
failure to make a payment when due, the non-breaching Party shall have notified
the breaching Party in writing of such breach or default, and within thirty (30)
calendar days after the date of such notice, the breaching Party shall not have
cured such breach or default, and, provided further, however, that in the case
of a breach or default that involves the failure to make a payment when due, the
non-breaching Party shall have notified the breaching Party in writing of such
breach or default and, within five (5) calendar days after the date of such
notice, the breaching Party shall not have cured such breach or default.
10.3 Effect of Termination.
If this Agreement is terminated pursuant to the provisions of this
Article 10, the provisions of this Agreement that have been designated to
survive termination shall so survive and, in addition, TTS and Alyn shall be
bound by the following provisions:
10.3.1 Pending Purchase Orders. All pending Purchase Orders
placed by TTS on or before the receipt of a notice of termination for any
Product shall be fulfilled by Alyn, delivered on the Delivery Dates requested by
TTS, and be paid for in accordance with the terms and provisions hereof,
provided, however, if this Agreement is terminated pursuant to the provisions of
Section 10.2 and TTS is the breaching or defaulting Party, then Alyn, upon such
termination, shall have no further obligation to fulfill any outstanding
Purchase Order unless the purchase price with respect to such Purchase Order
shall have been paid in advance.
10.3.2 Sale of Remaining Inventory. Subsequent to termination of
this Agreement and for up to a period of twelve (12) months after the last
Delivery Date pursuant to the last Purchase Order, TTS shall have the right to
continue to market, sell, and distribute its entire inventory on hand of any
Product or TTS Product, provided,
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* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
however, if this Agreement is terminated pursuant to the provisions of Section
10.2 and TTS is the breaching or defaulting Party, then TTS shall liquidate such
entire inventory on hand in a fashion that is reasonably expected to minimize
any resulting damages to the Boralyn(R) trademark as promptly as reasonably
practicable (but not more than twelve (12) months after such last Delivery
Date).
10.3.3 Return of Confidential Information. After this Agreement
is terminated, all Confidential Information shall be immediately returned by the
recipients to the disclosing Parties as set forth in Section 8.3.
ARTICLE 11
INSURANCE
11.1 Required Limits.
TTS and Alyn shall each maintain insurance in at least the following
amounts:
(a) Commercial General Liability insurance, including premises,
products, operations, and contractual coverage, in the total amount of not
less than $2,000,000 per claim and $10,000,000 annual aggregate;
(b) Umbrella insurance for bodily injury or property damage in the
total amount of not less than $2,000,000 per occurrence and $10,000,000
annual aggregate; and
(c) Workers' Compensation insurance in the amount required by law.
11.2 Certificates of Insurance.
(a) TTS shall have its insurance carrier or carriers furnish to Alyn
certificates that all insurance required under this Agreement is in force,
such certificates to indicate any deductible and/or self-insured retention,
and the effective expiration dates of policies, and such certificates to
stipulate that Alyn shall be given thirty (30) days written notice of all
cancellation, non-renewal, or material changes in the policy.
(b) Alyn shall have its insurance carrier or carriers furnish to TTS
certificates that all insurance required under this Agreement is in force,
such certificates to indicate any deductible and/or self-insured retention,
and the effective expiration dates of policies, and such certificates to
stipulate that TTS shall be given thirty (30) days written notice of all
cancellation, non-renewal, or material changes in the policy.
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<PAGE>
ARTICLE 12
PUBLICITY
Except as set forth hereinbelow, none of Alyn, TTS or any of their
respective Affiliates (the "Proposing Party") shall cause or permit the oral or
written release of any statement, press release, advertisement, information,
publicity or public statement (individually or collectively, a "Release")
referring to this Agreement or the other Party without the other Party's prior
written approval following ten (10) days written notice from the Proposing
Party. An initial Release, in the form of a press release in substantially the
form of Exhibit I hereto, shall be issued by Alyn on or immediately following
the Effective Date of this Agreement. Further, if any of Alyn, TTS or any of
their respective Affiliates determines, upon advice of counsel, that it is
required by law to issue a Release, such Party shall notify the other Party of
this determination and provide the other Party a reasonable opportunity to
review such Release and to make such reasonable changes not conflicting with
applicable requirements of law. In the event that applicable securities laws or
stock exchange listing obligations require the filing of this Agreement, the
filing Party shall apply to have the information contained in Schedules 1.10,
3.1 and 4.1(X), 4.1(Y) and 4.1(Z) of, and Schedule 5.1 to, this Agreement filed
on a confidential basis.
ARTICLE 13
MISCELLANEOUS
13.1 Governing Law.
This Agreement shall be governed by and construed and interpreted in
accordance with the laws of the State of California, without giving effect to
the principles of choice of law of such state. The Parties hereby consent to
personal jurisdiction in the United States District Court for the Central
District of California, Southern Division, and waive any and all personal rights
under the law of any jurisdiction to object on any basis (including, without
limitation, inconvenience of forum) to jurisdiction of such court for the
purpose of such litigation to enforce this Agreement or any rights of either
Party with respect to the subject matter hereof.
13.2 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall for all purposes be deemed to be an original and all of which shall
constitute the same instrument.
13.3 Headings.
The headings of the Articles and Sections of this Agreement are
intended solely for convenience and shall not be deemed to constitute part of
this Agreement or to affect the construction or interpretation hereof.
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<PAGE>
13.4 Severability.
In the event that a court of competent jurisdiction holds that
particular provisions or requirements of this Agreement are in violation of any
law of the United States or any state thereof, such provisions or requirements
shall not be enforced except to the extent they are not in violation of any such
law, and all other provisions and requirements of this Agreement shall remain in
full force and effect.
13.5 Force Majeure.
Any delay in the performance of any of the duties or obligations of
either Party hereto (except the payment of money owed) shall not be considered a
breach of this Agreement and the time required for performance shall be extended
for a period equal to the period of such delay, provided that such delay has
been caused by or is the result of any acts of God; acts of the public enemy;
insurrections; war; riots; embargoes, labor disputes, including strikes,
lockouts, job actions, or boycotts; fires; explosions; floods; shortages of
material or energy; delay in transportation; any orders, actions or regulations
of any governmental or regulatory authority that will prohibit either Party from
ordering or furnishing their respective products or performing any other aspect
of their respective obligations under this Agreement; or other unforeseeable
causes beyond the control and without the fault or negligence of the Party so
affected. The Party so affected shall give prompt notice to the other Party of
such cause, and shall take whatever reasonable steps are necessary to relieve
the effect of such cause as rapidly as possible.
13.6 Notices.
All notices hereunder, other than day-to-day communications, shall be
in writing and delivered (i) personally, (ii) by registered or certified mail,
postage prepaid, (iii) by overnight courier service, or (iv) by facsimile,
confirmed promptly by one of the foregoing delivery methods, to the following
addresses of the respective Parties:
If to TTS, individual copies to:
Scott C. Hennessy
President
True Temper Sports
8275 Tournament Drive
Suite 200
Memphis, TN 38125
Phone: (901) 746-2000
Fax: (901) 746-0011
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<PAGE>
with a copy to:
Charles E. Fenton
Vice President & General Counsel
The Black & Decker Corporation
701 E. Joppa Road
Towson, MD 21286
Phone: (410) 716-3900
Fax: (410) 716-2933
If to Alyn, individual copies to:
Robin A. Carden, President and
Chief Executive Officer, and
Walter Menetrey, Chief Operating Officer
Alyn Corporation
16761 Hale Avenue
Irvine, CA 92715
Fax: 714-475-1531
with a copy to:
Gerald A. Eppner, Esq.
Battle Fowler LLP
75 East 55th Street
New York, New York 10022
Fax: 212-856-7823
Notices shall be effective: (a) upon receipt if personally delivered or
delivered by confirmed facsimile; (b) on the fifth business day following the
date of mailing, if mailed; and (c) upon receipt, if sent by overnight courier
service. A Party may change its address listed above by notice to the other
Party.
13.7 Waiver; Modification of Agreement.
No waiver or modification or amendment of any of the terms of this
Agreement, including Schedules and Exhibits, shall be valid unless in writing
and signed by authorized representatives of both Parties hereto. Failure by
either Party to enforce any rights under this Agreement shall not be construed
as a waiver of such rights nor shall a waiver by either Party in one or more
instances be construed as constituting a continuing waiver or as a waiver in
other instances.
13.8 Entire Agreement.
This Agreement constitutes the entire agreement between the Parties
concerning the subject matter hereof and supersedes all written or oral prior
agreements or
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<PAGE>
understandings with respect thereto. No course of dealing or usage of trade
shall be used to modify the terms hereof except as expressly set forth otherwise
herein.
13.9 Assignment.
This Agreement shall not be assigned by either Party without the prior
written consent of the other Party, which consent shall not be unreasonably
withheld. Any assignment to which consent is given shall be binding upon, inure
to the benefit of, and be enforceable by, the assignee and any successors in
interest of the assignee.
13.10 Remedies.
In addition to the right to terminate this Agreement upon the breach
or default of a Party, the other Party shall be entitled to any other remedies
to which it may be entitled at law or in equity including, but not limited to,
monetary damages. The provisions concerning remedies contained in Article 5 of
this Agreement shall, with respect to matters that are the subject of said
Article 5, supersede the provisions of this Section 13.10.
13.11 Superseding Provisions.
The provisions of this Agreement shall supersede any inconsistent
provisions in any Purchase Order and shall be interpreted and construed in
accordance with this Section 13.11 and Section 4.4 hereof.
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<PAGE>
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized officers on the respective dates hereinafter
set forth:
TRUE TEMPER SPORTS, a Division of
Emhart Industries, Inc.
By:/s/ Scott C. Hennessy
------------------------------------
Scott C. Hennessy
President
ALYN CORPORATION
By:/s/ Robin A. Carden
------------------------------------
Robin A. Carden
President and Chief Executive
Officer
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<PAGE>
SCHEDULE 1.10
PRODUCT DESCRIPTION
Type/Description
of Product
----------------
1. Golf club shafts, including shafts
for drivers, wedges, irons and
putters.
<PAGE>
SCHEDULE 3.1
PRICE SCHEDULE
*
* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
SCHEDULE 4.1(X)
MINIMUM PURCHASES
TO MAINTAIN EXCLUSIVE CUSTOMER RELATIONSHIP
*
* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
SCHEDULE 4.1(Y)
MINIMUM PURCHASES
TO MAINTAIN EXCLUSIVE CUSTOMER RELATIONSHIP
*
* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
SCHEDULE 4.1(Z)
MINIMUM PURCHASES
TO MAINTAIN EXCLUSIVE CUSTOMER RELATIONSHIP
*
* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
*
*
* Material omitted pursuant to a request for Confidential Treatment
and filed separately with the Commission.
<PAGE>
SCHEDULE 5.4
TTS PROMOTIONAL MATERIALS/PRE-APPROVED INCLUSION OF ALYN/BORALYN(R)
GRAPHIC
