Exhibit 10.5
CONTRACT
between
Bruker - Analytical X-Ray Systems GmbH
Ostliche Rheinbruckestrasse 50
76187 Karlsruhe
GERMANY
- "AXS" -
and
GKSS Forschungszentrum Geesthacht GmbH
Institut fur Werkstoffforschung
Max-Planck-Strasse
21502 Geesthacht
- "GKSS" -
GKSS No. P3.3.02.F.02
regarding
the Purchase of Gradient Multi-layer X-ray Mirrors
CONFIDENTIAL TREATMENT HAS BEEN REQUESTED AS TO CERTAIN PORTIONS OF THIS
EXHIBIT, WHICH PORTIONS HAVE BEEN OMITTED AND REPLACED WITH [**] AND FILED
SEPARATELY WITH THE COMMISSION.
1. CONTRACT PRODUCTS
"Contract products" are the X-ray mirrors defined in APPENDIX 1 to this
Contract.
GKSS agrees not to sell contract products to third parties. AXS agrees
to make contract products available to the market at unfair [SIC]
conditions.
2. ORDERS
2.1 GKSS shall supply AXS on the basis of individual purchase orders
("orders") according to the conditions of this Contract.
2.2 Each order shall list the necessary information, such as item delivered
(type of mirror, parameters, and quantity), delivery date, and contract
number. GKSS shall immediately confirm each order in writing.
2.3 Unless otherwise expressly agreed in this Contract or in the respective
order, the AXS terms and conditions of orders Appendixed to this
Contract as APPENDIX 2 shall apply to orders. General GKSS terms and
conditions of business that differ from the aforementioned terms and
conditions shall not apply.
2.4 The prices established in APPENDIX 3 of this Contract shall be used as
a basis for calculating charges; these are fixed prices until September
30, 1999. Changes in price shall be made by mutual agreement and
specified in writing. GKSS is prepared to renegotiate the prices in the
event of an increase in the ordered quantity or a reduction of the
market price.
2.5 Delivery shall be ex works, including packaging. GKSS shall ensure that
the contract products are packed with consideration of all normal
transportation risks.
2.6 Payment shall be made within 30 (thirty) days after delivery and upon
receipt and verification of the invoice.
2.7 The delivery time for orders less than or equal to 15 units shall be 6
(six) weeks, beginning with receipt of the commercially and technically
cleared order by GKSS and confirmation of the order by GKSS. GKSS shall
confirm the commercially and technically cleared order within two (2)
weeks. The delivery period for subsequent orders shall be six (6) weeks
after the delivery of each previous order.
3. REQUIREMENTS FORECAST
AXS shall first determine its projected needs for the contract products
over a period of 12 (twelve) months, beginning on the effective date of
this Contract.
This requirements forecast shall be adjusted and updated quarterly for
each subsequent 12 (twelve) month period (revolving requirements
forecast). The requirements forecast is intended to ensure the fewest
interruptions in product deliveries to AXS and shall have no binding
effect.
4. RIGHT TO EMERGENCY PRODUCTION
4.1 GKSS recognizes that the continuous availability of the contract
products is of the utmost importance to AXS. To ensure the continuous
availability of the contract products for AXS, GKSS and AXS agree upon
a right to emergency production as stipulated in Item 4.2 below.
4.2 If and to the extent that GKSS for any reason ceases production of the
contract products or fails to fulfill its delivery obligations for a
period of more than one (1) month, AXS may demand that GKSS enable AKS
(particularly through the immediate provision by GKSS of technical
information and documents, including software, needed for the
production and testing of the contract products) to manufacture the
contract products itself or to have contract products manufactured and
distributed for it, and that GKSS grant the necessary rights (including
relevant patent rights of GKSS).
If the right to emergency production is exercised, then GKSS shall be
entitled to an appropriate licensing fee for the use of its technical
information and documents/software-programs and/or patent rights.
In the event that it exercises its right to emergency production, AXS
may require that GKSS make available at appropriate terms and
conditions any special tools and/or equipment that would otherwise be
unobtainable. If GKSS is unable to comply with this requirement, then
it shall enable AXS to construct copies these special tools and/or
equipment to the extent possible.
4.3 The right to emergency production shall end as soon as the circumstance
requiring the right to emergency production has been permanently
rectified. If a third party is used during emergency production, then
this third party shall be required to enter into a confidentiality
agreement.
In the event of delay or inability to comply, any existing legal claims
that exceed the terms of Item 4 shall remain unaffected thereby.
5. WARRANTY AND LIABILITY
5.1 GKSS warrants that the contract products correspond to the
specifications as defined in APPENDIX 1.
The warranty period shall be 12 (twelve) months, beginning with
acceptance of the contract products by AXS. The contract products must
be accepted no later
than eight (8) weeks after delivery by GKSS. If acceptance is not
expressly refused within this period, then the contract products shall
be considered as accepted.
Complaints regarding defects must be promptly communicated to GKSS in
writing. GKSS shall have the right to choose whether to repair the
defect or to replace the defective contract product with a
non-defective contract product within 20 (twenty) working days after
the defective contract products have been received by GKSS. If the
defects are not remedied, AXS shall have the right to demand at its
discretion either a reduction of the price or cancellation of the
Contract for the delivery about which a complaint has been made. Any
further warranty claims shall be precluded in this case.
The warranty period shall be three (3) months for any repaired or
replaced contract products delivered, although it shall continue at
least until the expiration of the original warranty period.
5.2 Liability of GKSS, its legal representatives, and its agents due to
breach of contract or tort shall be limited to willful misconduct,
gross negligence, lack of a guaranteed quality, and violation of an
obligation if such violation would endanger the object of the Contract.
Liability shall be limited to DM 500,000 (five hundred thousand
Deutsche marks).
5.3 AXS shall indemnify GKSS against all product liability claims made by
third parties due to faulty contract products.
6. PROTECTION OF INDUSTRIAL PROPERTY RIGHTS
If a third party exercises legitimate claims against AXS based upon or
related to patent rights due to the method of manufacturing the
contract products, then GKSS shall be obligated to choose between the
following actions, to be performed at its own expense:
- to obtain a right of use for AXS from the owner of the patent rights,
or
- to change the parts of the contract products relevant to the patent
rights, or
- to replace the parts relevant to the patent rights with parts not
subject to the patent rights, or
- to take back the corresponding contract products in exchange for a
refund of the purchase price.
A prerequisite for this is that AXS must immediately advise GKSS of
all claims made, as well as all subsequent proceedings.
Any further claims resulting from infringement of patent rights owned
by third parties shall be precluded.
7. CONFIDENTIALITY
Each contracting party shall maintain confidentiality regarding
technical documents and information, as well as special knowledge of
each other's internal matters, and shall divulge such information to
third parties only with the explicit consent of the other contracting
party, if and to the extent that this information is not generally
known through publication or some other form without breaching this
obligation of confidentiality.
Any third parties that may become involved in this Contract must also
be explicitly subjected to this obligation. This obligation shall
continue in effect even after termination of this Contract.
8. CONTRACTUAL PERIOD
This Contract shall come into effect upon signing.
AXS shall be obligated to purchase mirrors in a cumulative total volume
of DM 360,000 during the period of October 1, 1998 to September 30,
2001. The Contract may be terminated no earlier than September 30, 2000
with a 12-month period of notice. In the event of this premature
termination, AXS shall be obligated to purchase mirrors valued at no
less then DM 240,000.
9. OTHER PROVISIONS
9.1 No ancillary agreements exist. Changes and additions to this Contract
must be made in writing.
9.2 Should individual provisions of this Contract be or become invalid,
then the remaining provisions of this Agreement shall be unaffected
thereby. In such an event, both sides shall replace the invalid
provision with a valid provision that achieves the purpose of the
affected provision to the extent possible. A similar procedure must be
applied should a loophole become apparent in the course of completing
the Contract.
9.3 Two (2) copies of the Contract shall be prepared, with each contracting
party receiving one copy.
Geesthacht, October 1, 1998 Karlsruhe, October 1, 1998
GKSS Forschungszentrum Bruker-AXS-Analytical X-Ray Systems
Geesthacht GmbH GmbH
- --------------------------- -----------------------------------
Appendix 1
Specifications
- -----------------------------------------------------------------------------------------------------------------------------------
C79298A3208C30 Sl-Cu-S-40-P [**] [**] [**] [**] [**] [**] [**]
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C79298A208C31 Sl-Cu-S-60-P [**] [**] [**] [**] [**] [**] [**]
- -----------------------------------------------------------------------------------------------------------------------------------
C79298A3208C32 Sl-Cu-L-60-P [**] [**] [**] [**] [**] [**] [**]
- -----------------------------------------------------------------------------------------------------------------------------------
C79298A3208C33 Sl-Co-S-40-P [**] [**] [**] [**] [**] [**] [**]
- -----------------------------------------------------------------------------------------------------------------------------------
C79298A3208C34 Sl-Co-S-60-P [**] [**] [**] [**] [**] [**] [**]
- -----------------------------------------------------------------------------------------------------------------------------------
C79298A3208C35 Sl-Co-L-60-P [**] [**] [**] [**] [**] [**] [**]
- -----------------------------------------------------------------------------------------------------------------------------------
Custom design according to
specifications to be determined
- -----------------------------------------------------------------------------------------------------------------------------------
Dimensional tolerances: [**]
Error of curvature: [**]
Substrate material: [**]
Material combination: [**]
Coating material: [**]
The procedure for determining the radioscopic mirror parameters is as follows:
(A) Measurements:
On the [**] mirror, [**] measurements are performed [**] gradient using
[**]. [**] measurements are made at [**] along the gradient. [**], the
measurement points should lie [**] from each other, and [**], they should
be at a distance of [**]. The [**] area to be measured should be chosen in
such a way that the [**] can still be [**].
(B) Determination of mean reflectivity:
The mean reflectivity is calculated from the measured [**] to the
intensity [**].
(C) Determination of the mean lattice constant:
The lattice constant is calculated by [**] measurements and [**].
(D) Determination of the mean gradient:
The mean gradient is determined from the mean lattice constants [**].
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
APPENDIX 2
CONDITIONS OF PURCHASE
I. PURCHASE ORDER AND ORDER CONFIRMATION
(1) Bruker AXS Analytical X-Ray Systems GmbH (purchaser) may cancel the purchase
order if the supplier has not provided written confirmation (order confirmation)
within two weeks after receipt.
(2) If the order confirmation differs from the purchase order, the purchaser
shall be bound only if he has agreed to the difference in writing. Specifically,
the purchaser shall be bound by the supplier's general terms and conditions of
business only to the extent that these terms and conditions are in accordance
with the purchaser's terms and conditions, or if the purchaser agrees to them in
writing. Acceptance of product deliveries or services, as well as payments, do
not constitute an agreement.
(3) Changes or additions to the purchase order shall be valid only if they are
confirmed in writing by the purchaser.
II. DELIVERY TIME
(1) Timeliness of product deliveries shall be determined based upon their
arrival at the receiving location specified by the purchaser, and the timeliness
of product deliveries involving assembly or installation, as well as services,
shall be based upon their acceptance.
(2) In the event of a discernible delay of a product delivery or service, the
purchaser must be notified of this delay immediately and his decision regarding
further action must be obtained.
III. TRANSFER OF RISK, SHIPPING
(1) For services and product deliveries involving assembly or installation, risk
shall be transferred upon acceptance; for product deliveries without setup or
assembly, risk shall be transferred upon their arrival at the receiving location
specified by the purchaser.
(2) Unless otherwise agreed, the supplier shall bear the costs for shipping and
packaging. In the case of pricing ex works or from the supplier's sales
warehouse, shipments must be made at the lowest possible cost in each case,
unless the purchaser has specified a particular mode of shipment. The supplier
shall bear additional costs incurred due to a failure to comply with shipping
regulations. The purchaser may also specify the mode of shipment for pricing
free consignee. The supplier shall bear the additional costs of any accelerated
shipment needed in order to comply with his delivery deadline.
(3) Each delivery shall be accompanied by a packing slip or delivery receipt
containing details of the contents as well as the complete purchase order
identification code. An immediate notification of the shipment must be sent with
this same information.
IV. INVOICES
Invoices must specify the purchase order identification code as well as the
numbers for each individual item. Invoices are not payable so long as this
information is missing. Copies of invoices must be identified as duplicates.
V. PAYMENTS
(1) Unless otherwise agreed, payments shall be made
within 14 days minus a 3% discount, or within 30 days minus a 2% discount, or
within 90 days net.
(2) The payment period shall begin as soon as the product delivery or service
has been completed and the properly issued invoice has been received. If the
supplier must provide material tests, inspection logs, quality documents, or
other documents, the receipt of these documents shall also be a prerequisite for
the completeness of the product delivery or service. A discount deduction shall
also be permitted if the purchaser offsets or withholds payments in an
appropriate amount due to defects; the payment period shall begin following
complete remedy of the defect or defects.
(3) Payments do not constitute recognition of the products or services as
complying with the Contract.
VI. LIABILITY FOR DEFECTS
(1) The supplier must provide a one-year warranty for his products and services.
The warranty period shall begin with the transfer of risk (Item III, Para. 1).
In the event of product deliveries to locations where the purchaser is
conducting projects outside of his factories or facilities, the warranty period
shall begin with the acceptance by the party for whom the purchaser is
conducting the project or projects. The warranty period shall end no later than
two years following transfer of risk.
(2) If defects are determined before or upon transfer of risk or appear during
the warranty period, then the supplier must bear the costs for either
eliminating the defect or delivering a new non-defective product or service,
based upon the purchaser's choice. This shall also apply to product deliveries
in which inspection is limited to random samples. The purchaser shall make a
decision based upon his own reasonable discretion.
(3) If the supplier fails to remedy the defect or provide a new product delivery
or service within an appropriate time period determined by the purchaser, then
the purchaser shall have the right to withdraw fully or partially from the
Contract without compensation, or to require a reduction of the price, or to
demand that the supplier perform or have performed at his own cost repairs or
new product deliveries, or to demand compensation for nonperformance. This shall
also apply if the supplier declares that he is unable to remedy the defect or to
deliver a new product or service within an appropriate period of time.
(4) Repairs may be performed at supplier's cost without the specification of a
time period if delivery is made following the onset of a delay and the purchaser
has an interest in immediate repair in order to avoid a delay or for other
reasons of urgency.
(5) The rights described above shall expire one year after the defect is
reported.
(6) More extensive legal rights, especially regarding reimbursement of costs for
useless work or processing, shall remain unaffected.
(7) Complaints regarding defects may be raised within one month of product
delivery or performance of service or, if the defect is noticed only during
work, processing or utilization, with one month from the time that the defect is
detected.
(8) The aforementioned arrangements shall apply similarly for services performed
to remedy defects.
(9) The supplier shall bear the costs and risks for the return of defective
delivered products.
VII. SUBCONTRACTING ORDERS TO THIRD PARTIES
Orders may not be subcontracted to third parties without the written consent of
the purchaser, and such subcontracting shall entitle the purchaser to fully or
partly withdraw from the Contract or to demand compensation for damages.
VIII. MATERIAL PROVIDED BY THE PURCHASER
(1) Material provided by the purchaser shall remain the property of the
purchaser and must be separately stored, marked, and managed at no cost.
Provided material may be used only for the purchaser's orders. The supplier must
compensate the purchaser in the event of depreciation in value or loss. This
shall also apply for the authorized transfer of use of material associated with
the order.
(2) The material shall be processed or transformed for the purchaser. The
purchaser shall become the owner of the new or transformed item. If this is not
possible for legal reasons, then the purchaser and the supplier agree that the
purchaser shall become the owner of the new item at every point in time during
the processing and transformation. The supplier shall store the new item free of
charge for the purchaser, exercising due and proper care.
IX. TOOLS, MOLDS, SAMPLES, SECRECY, ETC.
Tools, molds, samples, models, sections, drawings, standards, printed materials,
and manuals provided by the purchaser, as well as items manufactured based upon
these materials, shall not without the written consent of the purchaser be
passed on to a third party nor used for purposes other than those specified in
the Contract. They shall be safeguarded against unauthorized inspection or use.
The purchaser may demand their return without prejudice to his other rights if
the supplier violates these obligations.
The supplier shall not disclose to third parties any information acquired from
the purchaser unless it is generally known or the supplier has legitimately
acquired knowledge of it in some other way.
X. ASSIGNMENT OF RECEIVABLES
No receivables shall be assigned without the purchaser's written consent.
XI. ADDITIONAL PROVISIONS
Where points arise that are not covered by these conditions, the statutory
provisions shall apply.
XII. VENUE, APPLICABLE LAW
(1) If the supplier is listed in the Commercial Register, the venue shall be the
place from which the purchase order was issued.
(2) This Contract shall be subject to German law, excluding the United Nations
Convention on Contracts for the International Sale of Goods signed on April
11, 1980.
XIII. INSURANCE POLICIES
The product deliveries shall be insured for transportation by Bruker AXS
Analytical X-Ray Systems GmbH. The supplier must inform the carriers of the
SVS/RVS restrictions. The supplier must bear the costs of any SVS/RVS premiums.
APPENDIX 3
PRICE LIST
- -------------------------------------- ------------------------------------------- ------------------------------
Purchase Order Number Price Basis Price / DM
AXS plus applicable VAT
- -------------------------------------- ------------------------------------------- ------------------------------
C79298-A3208-Cxx(*1) [**]unit quantities [**]
(glued, bent, inspected)
to be negotiated
per agreement
custom designs
(to be specified)
- -------------------------------------- ------------------------------------------- ------------------------------
(*1) = C30,C31, C32, C33, C34, C35 and multi-layer with similar specifications.
Both parties reserve the right to price adjustments to compensate for cost
increases as well as in response to changes in the market price.
[**] Indicates that information has been omitted and filed separately with the
Commission pursuant to a request for confidential treatment.
ACKNOWLEDGMENT OF TRANSLATION
August 14, 2001
The undersigned officer of the Registrant hereby acknowledges on behalf
of the Registrant that the foregoing translation of the Supply Agreement between
Bruker AXS GmbH and GKSS Forschungszentrum Geesthacht GmbH is a fair and
accurate English translation from German of the original executed agreement.
BRUKER AXS INC.
By: /s/ Martin Haase
----------------------------------
Martin Haase, President and Chief
Executive Officer
<Page>
BRUKER
AXS
GKSS Forschungszentrum Name: Barbara Schimmel
Mr. C. Schroder Department: AXS EK
BTT/VJD Telephone: 0721/595-5521
Max-Planck-Strasse Fax: 0721/595-2111
21502 Geesthacht Your letter:
Our
Date: May 30, 2001
MULTILAYER X-RAY MIRROR CONTRACT GKSS NO. P 3.3.02.F.02
Dear Mr. Schroder:
We hereby propose amending clause 8 of the above-referenced contract (term of
contract) to read as follows:
Bruker AXS GmbH agrees, from 10/01/01 to 09/30/03, to purchase at least [**] of
x-ray mirrors. The contract may be cancelled at earliest on 09/30/03 with 3
months notice. Thereafter, it will be renewed [automatically] for one year,
unless it is cancelled 3 months prior to expiration.
All other clauses of the contract remain valid as they stand.
Sincerely,
/s/ Barbara Schimmel
Bruker AXS GmbH
[letterhead]
[**] Indicates that information has been omitted and filed separately with
the Commission pursuant to a request for confidential treatment.
GKSS
FORSCHUNGSZENTRUM
GKSS P.O. Box [illeg.] D-21502 Geesthacht
GKSS Forschungszentrum
Max-Planck-Strasse
D-21502 Geesthacht
Telephone, main office: 04152/87 - 0
Fax, main office: 04152/87 - 1403
Internet: http://www.gkss.de
Bruker AXS GmbH
Ms. Barbara Schimmel
P.O. Box
76181 Karlsruhe
Your reference/ Our reference Phone extension Fax extension Date
Your message BTT/VJD(beta)Scho 04152-87-1722 04152-87-1818[?] [illeg.]
05/30/01
MULTILAYER X-RAY MIRROR CONTRACT GKSS NO. P 3.3.02.F.02 - NEW: 3.T4.00.F.03
Dear Ms. Schimmel:
We are hereby pleased to confirm that we agree with the proposal you make in
your letter of 05/08/01 to amend clause 8 of our contract regarding term and
cancellation options, while the rest of the contract continues to be valid,
though with amended annexes 1 and 3. For the above, please refer our letter of
05/30/01.
Sincerely,
GKSS Forschungszentrum Geesthacht GmbH
/s/ C. Scherg /s/ C/ Schroder
(Chr. Scherf) (C. Schroder)
[letterhead]
ACKNOWLEDGMENT OF TRANSLATION
October 6, 2001
The undersigned officer of the Registrant hereby acknowledges on behalf
of the Registrant that the foregoing translation of the letters of extension
relating to the Supply Agreement between Bruker AXS GmbH and GKSS
Forschungszentrum Geesthacht GmbH is a fair and accurate English translation
from German of the original executed agreement.
BRUKER AXS INC.
By: /s/ MARTIN HAASE
-----------------------------------
Martin Haase, President and Chief
Executive Officer