AMENDMENT
OF
PRODUCT MANUFACTURING
AND SALES AGREEMENT
THIS AMENDMENT OF THE PRODUCT MANUFACTURING AND SALES AGREEMENT
(this "Amendment") is made and entered into as of the 11th day of August,
1997 between POLYCORE OPTICAL, PTE. LTD. ("Seller") and VISION-EASE LENS,
INC., successor in interest to Vision-Ease, a unit of BMC Industries, Inc.
("Buyer").
RECITALS
WHEREAS, Buyer's predecessor, Vision-Ease, a unit of BMC
Industries, Inc., and Seller are parties to that certain Product
Manufacturing and Sales Agreement dated as of the 17th day of October, 1994
(the "Agreement");
WHEREAS, Buyer and Seller desire to amend the Agreement upon the
terms and conditions, and in the manner set forth below; and
WHEREAS, it is intended by this Amendment to amend the Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree as follows:
1) SPECIFICATIONS. Section 3.2 of the Agreement is hereby amended such
that the words "Buyer's Vice President of Sales and Marketing" are
replaced with "Buyer's Vice President of International Sales".
2) PRICE. Section 5.1(b) of the Agreement is hereby amended such that
the words "each of years two and three of this contract" are replaced
with "year 2 of this Amendment".
3) CUSTOMER RETURNS. Section 6.2 of the Agreement is hereby amended by
adding the words", at Seller's expense," to line 3 of such section
following "forwarded to Seller".
4) IMPROVEMENTS. Section 7.2 of the Agreement is hereby amended such
that the word "U.S." is replaced with "worldwide".
5) PATENT INDEMNIFICATION. Buyer agrees that it will indemnify and hold
harmless Seller from and against any loss, damage, cost including
attorney fees or liability which may be incurred by Seller, based on a
claim that the manufacturign process used for any of the Products
furnished hereunder infringes any patent of the United States or any
other country, and that Buyer, will, at its own expense, defend any
action, suit or proceeding which is based on an allegation that the
manufacturing process used for any Product manufactured by Seller and
sold to Buyer hreunder constitutes an infringement of any patent of
the United States or any other county; provided, that:
a) Seller immediately notifies Buyer in writing of the existence of
any notice or claim or inforingement and of any such action, suit
or proceeding upon Seller's discovery of the exitence thereof.
b) Seller gives Buyer full control of the defense of any such suit,
including appeals from any judgment therein and any negotiations
for the settlement or compromise thereof with full authority to
enter into a binding settlement or compromise; and
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c) Sller cooperates with Buyer, at Buyer's expense, in the defense
thereof.
In the event that the manufacturing process used for any such
Products are held to constitute an infringement and the use,
possession, sales, reproduction or distribution thereof is
enjoined, Buyer shall use its best efforts to replace such
infringing process during the terms of this Agreement with
non-infringing process at Buyer's expense.
6) TERM. The term of the Agreement as set forth in Section 10.1 of the
Agreement shall be extended for an additional period of two years,
which shall commence as of the date of the expiration of the original
term of the Agreement.
7) TERMINATION FOR BREACH. Section 10.2 of the Agreement is hereby
amended by deleting the words "without further notice," and by adding
the words "if Buyer fails to cure such default within five (5)
business days of written demand of Seller" following "to immediately
terminate this Agreement".
8) OTHER TERMINATION. Section 10.3 of the Agreement is hereby amended by
adding the following language at the end of such section:
In case of the breach of contractual commitment by Vision-Ease or
any affiliated entity or new principal as described in 10.3,
Polycore Optical has the right to sell back to Vision-Ease at then
present net book value, the molds, lenses, equipment, and other
facilities which are related in one way or another to the
manufacturing of lenses for Vision-Ease."
9) CONFIDENTIALITY. Section 12.1 of the Agreement is hereby amended by
relettering subsection (d) as (e) and adding the following as the new
subsection (d):
"is independently developed by the employees or other affiliates of
the receiving party without access to the confidential
information; or"
10) PUBLICITY. The following sentence is added at the end of Section
13.1:
"Notwithstanding the foregoing, Buyer shall have authority to
disclose such terms as required under law or court order upon the
opinion of counsel that such disclosure is required."
11) NOTICES. Section 13.2 is hereby amended by adding the words "Lens,
Inc." following the words "Vision-Ease". All notices should be sent
to the attention of the Vice President of International Sales. The
telecopier number is (612) 536-8789.
12) ASSIGNMENT; BINDING AFFECT. Section 13.3 of the Agreement is hereby
amended by adding the words "to an affiliated entity or" following the
word "except".
13) EXHIBITS. Exhibits A through G of the Agreement shall be superceded
in their entirety and replaced with Exhibits A through G attached to
this Amendment effective as of the expiration of the original term of
the Agreement and concurrent with the beginning of the term extension
set forth in Section 7 of this Amendment.
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IN WITNESS WHEREOF, Seller and Buyer have caused this Amendment to be duly
executed as of the date first above written.
POLYCORE OPTICAL, PTE. LTD. VISION-EASE LENS, INC.
By: /s/Dr. Sammy Sumargo By: /s/Richard J. Montag
Its: Managing Director Its: Vice President International Sales
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