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Exhibit 10.01
MASTER AGREEMENT
This Master Agreement is made as of this 2nd day of July, 2001, between NASHUA
CORPORATION, with its principal offices at 11 Trafalgar Square, Nashua, New
Hampshire 03063 (hereinafter "Nashua") and the FASSON ROLL NORTH AMERICA
DIVISION OF AVERY DENNISON CORPORATION, with its principal offices at 7590
Auburn Road, Painesville, Ohio 44077 (hereinafter "Fasson").
RECITALS:
A. Fasson and Nashua desire to optimize their respective manufacturing
capabilities and efficiencies for certain products.
B. Nashua and Fasson commit to become a significant supplier as well as a
long term customer of each other for certain products which each can
utilize in their respective business operations.
C. The parties wish to facilitate the transition to mutual supplier and
customer as well as establish an ongoing cooperative framework to allow
the parties to explore the opportunities to supply other products which
each party may currently produce or new products which may develop in the
future.
Therefore, the parties have agreed to enter into this Master Agreement to
establish the ongoing basis for the cooperative relationship as well as attached
sub-agreements entered into as of this date to implement specific actions and
activities in furtherance of this Master Agreement.
1. FRAMEWORK
1.1 The parties agree that this Master Agreement sets forth the general
agreement between the parties and establishes the process whereby the
parties shall work together to manage the relationship and on an
ongoing basis to explore other opportunities to supply each other with
new or additional products.
1.2 This Master Agreement has attached to it the following sub-agreements
("sub-agreements"):
Attachment A: Asset Purchase and License Agreement
Attachment B: Equipment Lease Agreement
Attachment C: Fasson Supply Agreement
Attachment D: Nashua Corporation Supply Agreement
1.3 This Master Agreement may from time to time have modifications to
existing sub-agreements or additional sub-agreements attached hereto,
covering other products or services which each party would supply to
the other in support of the objectives of this Master Agreement.
2. ESTABLISHMENT OF TEAMS
2.1 Each party agrees to appoint a standing team to work with its
counterpart to oversee and manage this contractual relationship
between the parties.
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2.2 Each team will have a chairperson and three members.
2.3 Each chairperson shall act as the focal point for communications
between the teams and will be responsible for coordinating meetings
between the teams.
2.4 The teams shall meet at least twice a year at dates mutually agreeable
by the chairpersons.
2.5 These meetings will cover at a minimum the following: current status
of purchasing activities between the parties; possible cost reduction
opportunities on the purchasing activities; any issues relating to the
ongoing relationship and agreements; and new opportunities for each
party to supply additional products or services to the other.
3. TERM
This Master Agreement shall remain in effect until the expiration of the term or
any renewal term of all of the related sub-agreements and shall automatically be
renewed if and when any of the sub-agreements are renewed. However, if
Attachment B is the only sub-agreement in effect then Section 2 of this Master
Agreement shall lapse.
4. INTELLECTUAL PROPERTY
Each party maintains full control of its own respective intellectual property
including all patents, licenses, trade names, service marks, trade secrets and
other proprietary information. This Master Agreement and related sub-agreements
do not create any license or rights to use either parties' intellectual property
unless it is specifically addressed in a specific attached sub-agreement and
then only to the extent set forth in the specific sub-agreement and the specific
products described in that sub-agreement.
5. PROPRIETARY INFORMATION
5.1 The parties may from time to time share proprietary or confidential
information with the other party during the course of this Master
Agreement and attached sub-agreements. The parties agree they shall
only use such proprietary or confidential information for the purposes
of furthering the objectives of this Master Agreement and attached
sub-agreements and said confidential information shall not be used for
any other purpose. The parties agree to protect any such discussed
proprietary or confidential information using the same degree of care,
but no less than a reasonable degree of care, to prevent the
unauthorized use, dissemination, or publication of the confidential
information as the recipient of the information uses to protect its
own confidential information of a like nature.
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5.2 The parties agree to hold such information received from the other
party, and not disclose it to any third party for a period of one (1)
year from the expiration of this Master Agreement and all of the
attached sub-agreements.
5.3 This obligation does not apply to information which was (a) in the
possession of the recipient prior to this Master Agreement except for
information exchanged under a current Non-Disclosure Agreement; (b) is
or becomes part of a public record; (c) is rightfully received from a
third party without a duty of confidentiality; (d) is disclosed under
operation of law; (e) is independently developed by the recipient; or
(f) is disclosed after receiving the prior written approval of the
other party.
6. TERMINATION
6.1 This Master Agreement and each of the attached sub-agreements may be
terminated upon (a) a party's breach of a material term and condition
in the corresponding agreement and the failure to cure such a breach
upon sixty (60) days written notice from the non-breaching party; or
(b) upon one party (i) ceasing to function as an ongoing concern by
announcing or ending all operations; (ii) making an assignment for the
benefit of creditors; (iii) becoming the subject of any proceeding
under any applicable bankruptcy, receivership, insolvency, or similar
laws which is not dismissed within thirty (30) days; or (iv)
liquidating or dissolving.
6.2 Notwithstanding the foregoing, if one of the parties becomes subject
to a proceeding under 11 USC 100 et seq and any similar section added
by amendment (the "Bankruptcy Laws"), such party agrees to determine
and affirmatively seek to either assume or reject this Master
Agreement and the sub-agreements in accordance with the Bankruptcy
Laws within sixty (60) days of the entry of an order for relief on
behalf of that party under the Bankruptcy Laws. If such party fails to
make such assumption or rejection as stated above, such party agrees
to not oppose a motion filed by the other party seeking an order to
compel assumption or rejection.
7. WARRANTIES
7.1 Each party represents and warrants that it has good and clear title to
its products and materials relating thereto and all rights with
respect thereto, or that it has acquired such right from the owner
thereof to license, market or otherwise distribute its products to
customers as provided under this Master Agreement. Each party further
warrants that it has not made and will not make any commitments to
others inconsistent with or in derogation of such rights and that each
party is free of any obligation that would prevent it from entering
into this Master Agreement.
7.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS MASTER AGREEMENT.
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7.3 The provisions of paragraphs 7.1 and 7.2 shall survive any termination
of this Master Agreement.
8. ASSIGNMENT
8.1 Neither party shall assign this Master Agreement and/or related
sub-agreements to any third party without the prior written consent of
the other party. The party who is requested to provide its consent may
withhold such consent until the third party agrees in writing to be
bound by the terms of this Master Agreement and/or related
sub-agreements.
8.2 If Nashua sells or transfers substantially all of its material assets
or operations directly involved in the performance of obligations
under any of the sub-agreements and the purchaser of such assets or
operations does not agree in writing to be bound to the terms of the
corresponding sub-agreement, the provisions of Section 13 of
Attachment A, Asset Purchase and License Agreement, shall apply.
8.3 This Master Agreement and related sub-agreements, and the rights and
obligations of each party hereunder shall be binding upon and shall
inure to the benefit of the respective successors and assigns of each
of the parties.
9. INDEPENDENT PARTIES
9.1 Each party is an independent party and this Master Agreement and
attached sub-agreements are not intended to create any business
combination, joint venture, or partnership. Further, each party has
full and complete control of their respective products and this Master
Agreement does not inhibit, restrain, or in any way control or limit
each party's marketing, promoting, or selling of any products.
9.2 This Master Agreement and attached sub-agreements shall not constitute
either party the legal representative or agent of the other, nor shall
either party have the right or authority to assume, create or incur
any liability or any obligation of any kind, expressed or implied,
against, or in the name of, or on behalf of the other party. This
Master Agreement shall not create any rights in any customer, or any
other person or entity not a party to this Master Agreement.
10. PUBLICITY
Neither party may disclose any of the terms of this Agreement or the
sub-agreements without the prior written consent of the other party or as may be
required by law or regulation. Neither party will issue a press release
concerning the transactions contemplated by this Agreement without first
allowing the other party the opportunity to review such release and give its
prior written approval, which approval will not be unreasonably withheld.
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11. NOTICES
Any and all written notices, communications and deliveries between Fasson and
Nashua with reference to this Master Agreement shall be sufficiently made on the
date of mailing if sent registered or certified mail to the respective address,
subject to change upon written notice, of the other party as follows:
In the case of Fasson: Fasson Roll North America
7590 Auburn Road
Painesville, Ohio 44077
Attn: Law Department
In the case of Nashua: Nashua Corporation
11 Trafalgar Square, 2nd Floor
Nashua, NH 03063
Attn: Legal Department
12. AMENDMENT
Any amendment to this Master Agreement or any attached sub-agreements must be in
writing and signed by both parties.
13. FORCE MAJEURE
If performance of any part of this Master Agreement and/or any of the attached
sub-agreements by either party is prevented or delayed by reason of any cause
beyond the control of and without the fault of the party affected (including
without limitations acts of God, acts of the other party, acts of civil or
military authority including governmental priorities, fires, floods, epidemics,
wars and riots) and which cannot be overcome by diligence, the party affected
shall be excused from such performance to the extent that it is necessarily
prevented or delayed thereby during the continuance of any such happening or
event, and the corresponding agreement shall be deemed suspended so long as the
extent that any such cause prevents or delays its performance; provided,
however, that after sixty (60) cumulative days of such suspension on the part of
one party, the other party may at its discretion terminate without liability its
obligations under the corresponding agreement to the extent that the affected
party's performance has been prevented or delayed. In order to obtain a
suspension under this section, the party delayed shall send written notice of
the delay and the reason therefore to the other party within five (5) business
days from the time the party delayed, knew the force majeure in question.
14. ENFORCEABILITY
14.1 No delay or failure of either party in exercising any right hereunder
and no partial or single exercise hereof shall be deemed to constitute
the waiver of such right or any other rights hereunder.
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14.2 If any provisions of this Master Agreement or attached sub-agreements
shall become inoperative or unenforceable as applied in a particular
case or becomes in conflict with any other provisions hereof, such
circumstances shall not have the effect of rendering the provision in
question invalid, inoperative or unenforceable in any other case or
circumstance. The invalidity of any one or more phrases, sentences,
clauses or sections contained in this Master Agreement or attached
sub-agreements or any part thereof shall not effect the enforceability
of the remainder of the Master Agreement or attached sub-agreements.
15. ABSENCE OF LITIGATION
There are no pending or threats of actions or proceedings before any court or
administrative agency which may adversely affect either party's ability to
perform their obligations in accordance with this Master Agreement or attached
sub-agreements.
16. INFORMATION
Each party agrees to provide upon request of the other party financial
information and other information such as may be reasonably required in order
for the requesting party to determine the financial responsibility and stability
of the other party.
17. LIMITED LIABILITY
Neither party shall be liable for consequential damages (including but not
limited to lost profits) with respect to the Master Agreement or related
sub-agreements or any portions thereof.
18. GOVERNING LAW
The laws of the State of Delaware without regard to its conflict of laws
principles shall govern with respect to this Master Agreement or related
sub-agreements and any questions which may arise under this Master Agreement.
19. DISPUTE RESOLUTION
19.1 If a dispute arises between the parties during the duration of this
Master Agreement or any attached sub-agreement, the parties agree to
the following dispute resolution procedure:
(a) Either party will provide written notice to the other of the
dispute.
(b) The Group Vice President of Fasson and the Vice President, CFO of
Nashua shall meet within ten (10) business days in a good faith
attempt to resolve the dispute, or mutually agree upon an action
plan to resolve the dispute.
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(c) If a resolution to the dispute or a mutually agreeable action plan
is not received within ten (10) business days of the meeting
referenced in subsection (b) above, then either party may request
an escalation to the next level review.
(d) The dispute is then brought to the attention of the President of
each respective company. The Presidents shall meet within ten (10)
business days in an attempt to resolve the dispute or mutually
agree upon an action plan to resolve the dispute.
(e) If a resolution to the dispute or a mutually agreeable action
plan is not received within ten (10) business days from the date
of the meeting of the Presidents, then either party may proceed
to the next step.
19.2 If the dispute is not resolved in accordance with paragraph 19.1
above, then the matter will be submitted to the American Arbitration
Association (AAA) for resolution (including, if applicable, a
determination as to the proper damages for the breach of the Master
Agreement or attached sub-agreements, subject to the terms of this
Agreement and the attached sub-agreements). The Master Agreement and
the attached sub-agreements will remain in effect during the time the
arbitration proceeding is in process. Termination of the Master
Agreement and any of the attached sub-agreements can only be made
pursuant to the terms of those agreements.
19.3 Arbitration will be held in Philadelphia, Pennsylvania under the
common arbitration rules and expedited arbitration practices of the
AAA. There will be one arbitrator who will have the authority to
resolve all disputes and matters relating to the Master Agreement and
attached sub-agreements. The decision of the arbitration shall be
binding on both parties and may be recorded and enforced in the
appropriate federal courts.
20. INTERPRETATION AND PRECEDENCE OF AGREEMENTS
If there is an issue of interpretation or conflict in the terms and conditions
among and between the terms and conditions of the Master Agreement or any
attached sub-agreement, the following precedence process is to be utilized:
(a) Each attached sub-agreement's terms and conditions only apply to any
activity under that specific sub-agreement and are not to be
considered in any interpretation of any other sub-agreement.
(b) If an issue arises between interpretation of an attached sub-agreement
and the Master Agreement, the Master Agreement takes precedence and
must be considered in any interpretation of any specific
sub-agreement.
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21. INTEGRATION
This Master Agreement and the attached sub-agreements set forth the complete and
exclusive agreement and understanding of the parties relating to the subject
matter contained herein and therein and merges all prior communication between
them.
22. HEADINGS
The headings to the various provisions of this Master Agreement and attached
sub-agreements are for reference purposes only and shall not be construed as
affecting the meaning or interpretation of this Master Agreement or attached
sub-agreements.
23. COUNTERPARTS
This Master Agreement and attached sub-agreements may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have as of the Effective Date duly
executed this Master Agreement, in duplicate, by their respective representative
thereunto duly authorized.
NASHUA CORPORATION FASSON ROLL NORTH AMERICA,
A DIVISION OF AVERY DENNISON
CORPORATION
By: /s/ Andrew B. Albert By: /s/ Christian A. Simcic
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Name: Andrew B. Albert Name: Christian A. Simcic
Title: Chairman, President and Chief Title: Group Vice President
Executive Officer Fasson Roll Worldwide
Date: July 6, 2001 Date: July 6, 2001
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