LETTER OF AGREEMENT IN CONNECTION WITH THE STRATEGIC PARTNERSHIP BETWEEN:
LETTER
OF AGREEMENT IN CONNECTION WITH THE STRATEGIC PARTNERSHIP
BETWEEN:
AND
BAYER
MATERIALSCIENCE LLC.
This
Letter of Agreement dated February 2nd, 2009
will serve as confirmation of the strategic partnership formed by and between
CONFORCE INTERNATIONAL, INC., a corporation organized and existing under the
laws of the State of Delaware and having a place of business at 00X Xxxxxxx
Xxxx, Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxx, Xxxxxx ("Conferee"), and BAYER
MATERIALSCIENCE LLC, a limited liability company organized and existing under
the laws of the state of Delaware and having a place of business at 000 Xxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx, Xxxxxx Xxxxxx ("Bayer").
It is
understood and agreed by Xxxxxxxx and Bayer that until such time as a more
formal agreement has been executed, this Letter of Agreement will serve as an
umbrella agreement outlining the framework of the relationship between the
parties and to which definitive operational agreements as described in
point 8 below will be appended.
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STRATEGIC
PARTNERSHIP
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1.
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Conferee
has extensive expertise in the shipping container industry and has been
engaged in
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research,
development, design, production and other activities in connection with
materials,
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systems,
processes and equipment for the manufacture of its proprietary shipping
container
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and
highway trailer composite line of flooring and shelving systems named
EKO-FLOR cs-4,
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xts,
and ms-1 respectively (collectively
"EKO-XXXX").
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2.
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Bayer
is a global leader in the production of polymers and high performance
plastics and is
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engaged
in research, development, design, production and other activities in
connection with
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materials,
systems, processes and equipment suitable for the production of
polyurethanes,
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polyurethane
coatings and polyurethane pultrusions (the "Bayer
Products").
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3.
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Conferee
and Bayer wish to cooperate in a strategic partnership in order to fully
leverage their
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respective
business strengths (the
"Partnership").
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4.
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The
goal of the Partnership is the successful commerciaiization of EKO-XXXX
through the
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use
of advanced design and material analysis, efficient production practices
through on-going
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training
and support, and the logistical development of a material supply chain
consistent with
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the
global production requirements of EKO-XXXX (the "Partnership
Objective").
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-2-
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5.
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More
specifically and in the immediate term, the Partnership Objective is to
provide high-
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performance,
quality-assured EKO-XXXX product to Conferee customers for
ocean-going
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trials
commencing on or about March 27, 2009. Provided the
successful completion of
trials,
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to
then work towards the establishment of a Conferee manufacturing facility
in Asia, whose
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operations
are currently scheduled to commence first quarter of calendar
2010.
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6.
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Below
are the rights and responsibilities of Conferee to the Partnership in
order to achieve the
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Partnership
Objective:
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(a)
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Conferee
will produce or have produced on its behalf EKO-XXXX profiles using
Bayer
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Products.
Conferee will be responsible for any modification of its design(s) which
may
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be
necessary to achieve the Conferee
desired physical appearance, physical
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properties
and/or processing of
EKO-XXXX;
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(b)
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Conferee
will receive samples of Bayer Products for the production of EKO-XXXX
in
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accordance
with the Conferee design(s) and shall provide feedback to
Bayer
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regarding
the suitability of such materials for production of
EKO-XXXX;
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(c)
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Conferee
wili use oniy Bayer Products in its conduct of all activities pursuant to
the
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Partnership,
unless Bayer has given its prior written consent to the use of a third
party
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material
and will provide Bayer with the results of any tests conducted on
EKO-XXXX
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made
with Bayer Products;
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(d)
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Conferee
xxxx retain all of its rights, including patent rights, to EKO-XXXX and to
any
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developments
made solely by Conferee during the course of the
Partnership.
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7.
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Below
are the rights and responsibilities of Bayer to the Partnership in order
to achieve the
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Partnership
Objective:
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(a)
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Bayer
will provide samples of Bayer Products to Conferee for Conferee to produce
or
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have
produced on its behalf EKO-XXXX
profiles;
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(b)
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Bayer
will receive samples of EKO-XXXX produced by or on behalf of Conferee
using
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Bayer
Products for testing, evaluation, determining and making any modifications
to
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Bayer Products which Bayer believes may improve the physical properties,
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appearance
or processing of EKO-XXXX made from Bayer Products, and for
making
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suggestions regarding possible design modifications to improve the physical
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properties,
appearance and/or processing of
EKO-XXXX;
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(c)
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Bayer
will provide Conferee with theoretical technical analysis of EKO-XXXX
including,
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but
not limited to, finite element
analysis;
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(d)
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Bayer
will allocate the know-how, technical expertise and human resources
Bayer
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deems
reasonably necessary to assist with the setup and production of
EKO-XXXX
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trial
orders;
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(e)
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Bayer
will allocate the know-how, technical expertise and human resources
Bayer
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deems
reasonably necessary to assist with the establishment of the planned
Conferee
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production
facility in Asia. Such assistance will include the analysis of
current
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Conferee
production processes in order to ensure a seamless transition from
local
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single-line
production to scalable multi-line manufacturing in
Asia;
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(f)
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Bayer
will ensure that Conferee has access to an adequate supply of Bayer
Products
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for
production in Asia or wherever EKO-XXXX is being
produced;
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(g)
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Bayer
has provided, and may continue to provide economic assistance to
Conferee
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towards
the development of EKO-XXXX. However, the decision to disburse
such
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funds
will at all times be at the sole discretion of
Bayer;
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(h)
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Bayer
will retain all of its rights, including patent rights, to the materials,
compositions and formulations developed and/or supplied hereunder and to
any other developments made solely by it during the course of the
Partnership.
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8.
Conferee and Bayer will, at a later date to be mutually agreed upon, enter
into, execute and deliver the following definitive operational agreements
to be in form and substance satisfactory to the parties and their
respective counsel, each acting reasonably. Such agreements will contain
all customary and usual conditions precedent, representations, warranties,
covenants, agreements, terms, indemnities and other provisions in the
context of the services and/or transactions contemplated thereby or
thereunder:
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(a)
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a
Joint Development Agreement in connection with the surface topcoat
developed
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jointly
by Conferee and Bayer for use on EKO-FLOR cs-4 shipping container
panels;
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(b)
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a
Material Supply Agreement defining term, pricing and projected quantities
of Bayer
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Products
for use by Conferee in
EKO-XXXX;
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(c)
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such
other agreements relating to or in connection with the Partnership and/or
the
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Partnership
Objective as may be mutually agreed upon by the
parties.
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Conferee
~ Bayer
Letter of
Agreement re: Strategic Partnership - February 2,2009
-4-
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9.
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Except
as may be expressly agreed upon in writing by the parties, neither party
will acquire
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any
rights in or to the intellectual property of the other
party.
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10.
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The
term of this Agreement will be for a period of one (1) year from the date
first written
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above.
This Agreement may be extended or terminated by mutual agreement of the
parties.
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The
provisions of points 6{d) and 7(h) will however survive any termination of
this Agreement.
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During
the course of the Partnership, the parties will evaluate the progress of
the Partnership
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Objective.
The Partnership may be terminated by mutual agreement of the parties if it
is
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agreed
that insufficient progress has been made. Either party will have the right
to terminate
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this
Agreement at any time upon thirty (30) days' written notice to the other
party with such
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termination
to become effective at the conclusion of such thirty (30) day
period.
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11.
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Although
it is intended that the Partnership be successful, it is expressly
understood that the
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parties
do not warrant or guarantee that such results will be obtained. No party
shall be liable
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to
the other in any manner in the event that the Partnership Objective is not
achieved.
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12.
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This
Letter of Agreement is made under the laws of the Commonwealth of
Pennsylvania and
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will
be interpreted in accordance
therewith.
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13.
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This
Letter of Agreement is not assignable by any party without the prior
written consent of
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the
other party.
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14.
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This
Letter of Agreement constitutes the entire understanding of the parties
with respect to
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the
subject matter of the strategic Partnership and supersedes all previous
negotiations and
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commitments.
This Letter of Agreement may be waived, changed, modified or amended
only
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by
written agreement executed by both Xxxxxxxx and
Bayer.
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15.
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The
strategic Partnership between Conferee and Bayer as described in this
agreement is
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characterized
by mutual cooperation and responsibility towards the achievement of
the
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Partnership
Objective. Accordingly, nothing contained herein is intended nor shall
be
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construed
as creating a partnership, joint venture, agency, distributorship or any
other legal
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arrangement
or relationship. Neither party shall make any statement of any kind to any
third
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party
to the contrary. Violation of this obligation shall be considered a
material breach of this
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agreement.
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Conforce
- Bayer
Letter of
Agreement re: Strategic Partnership - February 2, 2009
-5-
If this
Letter of Agreement accurately reflects the understanding of the strategic
Partnership and working relationship between Conforce and Bayer, the parties
will so indicate by signing in the spaces provided 'below. This Letter of
Agreement has been executed by the parties on the date first written
above.
BAYER
MATERIALSCIENCE LLC.
Name: Xxxxxxxx X Xxxxx Title
Director
-6-
