exv10w18






Exhibit 10.18




Final




SUPPLY AGREEMENT


Summary of Material Terms




	 	 	 	 	 	 	 

	Purchaser:	 	Seller:
	 

	 	Aspen Aerogels, Inc.

30 Forbes Road

Northborough, MA 01532

	 	 	 	Silbond Corporation

9901 Sand Creek Highway

Weston, Ml 49289
	 
	 	 	 	 	 	 
	Purchaser’s Contact:	 	Seller’s Contact:
	 

	 	Contact: Michael Garvey

Telephone: (508) 691-1157

Facsimile: (508) 691-1114

Email: mgarvey@aerogel.com
	 	 	 	Contact: John Austin 

Telephone: (517) 436-3171 

Facsimile: (517) 436-3156 

Email: john.austin@silbond.com
	 
	 	 	 	 	 	 
	Product:	 	Term of Agreement:
	 

	 	Silbond® 40 of the grade

and quality defined in 

the specifications 

attached hereto as 

Exhibit A
	 	 	 	From: January 1, 2011 

To: January 1, 2013 

Subject to renewal as set forth in this

Agreement.
	 
	 	 	 	 	 	 
	Payment Terms:	 	Exhibits:
	 

	 	Net 45 calendar days 

from the date of invoice
	 	 	 	Exhibit A: Product Specifications 

Exhibit B: Quantity Schedule 

Exhibit C: Terms and Conditions of Sale






     The foregoing summary is for informational purposes only. These terms are not binding on the
parties and do not constitute a part of the Supply Agreement, which begins on the following page.



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




 









 








     This SUPPLY AGREEMENT is made and entered into as of January 1, 2011 (the “Effective
Date”) between SILBOND CORPORATION, a Michigan corporation (“Seller”) and ASPEN
AEROGELS, INC, a Delaware corporation (“Purchaser”).



     WHEREAS, the Parties desire to enter into this agreement (including all exhibits and addenda
hereto and as amended, modified, or extended as hereinafter provided, the “Agreement”) for
the purpose of defining the terms upon which Seller will sell, and Purchaser will purchase,
Silbond® 40 of the grade and quality defined in the specifications attached hereto as Exhibit
A (the “Product”).



     NOW THEREFORE, the Parties hereto agree as follows:




	1.0	 	Purchase and Sale






	 	1.1	 	Quantity. During the Term (defined below), Purchaser agrees to
purchase from Seller the quantities of the Product set forth in the schedule attached
as Exhibit B for each period identified in Exhibit B. Purchaser will
provide Seller with releases in a timely manner so that Seller has sufficient time to
schedule shipment. Purchaser will use its best efforts to take delivery of Product in
equal monthly quantities over the year.
	 
	 	1.2	 	Minimum Annual Quantity. For the period beginning on the Effective
Date and ending one year after the Effective Date, and for each annual period
thereafter during the Term, Purchaser shall purchase at least 2,400,000 lbs. of Product
(the “Minimum Annual Quantity”), and shall use best efforts to acquire the
Product in accordance with the “Order Forecast” column in the schedule attached as
Exhibit B. In the event that, in any such annual period, Purchaser issues
releases for less Product than the Minimum Annual Quantity, Supplier will issue to
Customer an invoice (each a “Deficiency Invoice”), indicating the deficiency in
the quantity of Product subject to releases during the indicated period as compared
with the Minimum Quantity for that period (each a “Deficiency”). The amount
due under each Deficiency Invoice will be calculated by (A) multiplying (x) the
applicable Deficiency by (y) the Purchase Price, (B) adding any costs or expenses
incurred by Seller arising out of or relating to the Deficiency, and (C) subtracting
any costs or expenses that have actually been avoided by Seller in accordance with its
normal business processes and policies arising directly out of the Deficiency;
provided, however, that Seller will have no duty to mitigate or avoid
any costs or expenses arising out of a Deficiency. Customer will pay all amounts due
under each such invoice in accordance with the invoice and payment provisions set forth
in Section 3.2 below. For clarity, the amounts due under each Deficiency Invoice
issued during the term of this Agreement are due and payable notwithstanding whether or
not Purchaser has issued releases in respect of the Products subject to the Deficiency
Invoice.





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




2









 









	2.0	 	Term; Termination






	 	2.1	 	Term. The initial term of this Agreement will commence on the
Effective Date and will expire two years thereafter (the “Initial Term”). This
Agreement will automatically renew upon expiration of the Initial Term for successive
one (1) year periods (each a “Renewal Term,” and together with the Initial
Term, the “Term”), unless either party provides notice of termination to the
other party at least ninety (90) calendar days prior to expiration of the Initial Term
or any Renewal Term.
	 
	 	2.2	 	Termination by Purchaser. Purchaser may terminate this Agreement upon
written notice to Seller if Seller materially breaches its obligations under this
Agreement; provided, however, that Seller shall have thirty (30) calendar days
from Purchaser’s notification of its intent to terminate to commence a corrective
action to cure the alleged breach.
	 
	 	2.3	 	Termination by Seller. Seller may terminate this Agreement upon
written notice to Purchaser if Purchaser materially breaches its obligations under this
Agreement for any reason except failure to make payment; provided,
however, that Purchaser shall have thirty (30) calendar days from Seller’s
notification of its intent to terminate to correct the alleged breach. Failure to make
payment in accordance with the applicable payment terms is a material breach and must
be corrected within ten (10) days.






	3.0	 	Price and Payment; Specifications






	 	3.1	 	Price. For the first year of this Agreement, the purchase price for
the Product loaded into Purchaser’s carrier’s tank wagon at Seller’s facility will be
US$[***] per lb. (the “Purchase Price”). This price includes [***]. For each
successive renewal term, price and monthly forecasted quantities will be set forth in
an amendment to this Agreement executed by Seller and Purchaser.
	 
	 	3.2	 	Payment Terms. Terms of pay will be net 45 days from date of loading at
Weston site. The pricing is contingent upon being paid in a timely manner. The
Purchase Price is conditional upon receipt of timely payment from Purchaser and Seller
shall have the right to adjust the Purchase Price to account for any delays in payment.
Purchaser’s initial credit limit shall be $_________. The initial credit limit may be
adjusted from time to time, in Seller’s discretion, upon written notice to Purchaser.
	 
	 	3.3	 	Changes to Specifications. Seller recognizes that from time to time
change to the specifications may be warranted. Seller may, in its sole discretion,
make changes to the Products in accordance with Purchaser’s instructions or
requirements, or as Seller deems necessary. Any changes to the specifications will be
in accordance with Silbond’s Specification Change Procedure, a copy of which is
available upon request.





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




3









 









	 	4.0	 	Evaluation of [***]. Seller will make a capital investment to install equipment to
research the viability of [***]. Seller and Purchaser will agree on a mutually-acceptable
construction, evaluation, and deliverables schedule within 45 days of signing the agreement.
Seller and Purchaser will cooperate and share information and technical data in order to
achieve mutually beneficial results. Purchaser acknowledges that Seller will control the
schedule and specifications for such equipment and research (though Purchaser will be kept
reasonably informed), that Purchaser will have no ownership interest therein, and that if
Purchaser defaults in its obligations under this Agreement, Seller will be relieved from its
obligation with respect to the matters set forth in this Section 4.0.
	 
	 	5.0	 	General Terms and Conditions of Sale
	 
	 	 	 	The General Terms and Conditions of Sale attached hereto as Exhibit C (the
“Terms and Conditions”) are incorporated into and form a part of this Agreement;
provided, however, that to the extent of any conflict between the terms set forth
herein and the Terms and Conditions, the terms of this Agreement shall control.
	 
	 	6.0	 	Miscellaneous






	 	6.1	 	Notices. Any notice required or permitted to be given hereunder by any
of the parties hereto shall be given in writing. Such notice shall be personally
delivered or shall be sent to the address specified above (a) by mail, (b) by
commercial courier service, or (c) by electronic facsimile. Notices will be deemed
effectively given (x) in the case of notices given by electronic facsimile, on the day
the notice is sent, and (y) in all other cases, on the date of actual delivery. Any
party hereto may change its address or facsimile number for notice purposes at any time
and from time to time by giving written notice of such change to the other party in the
manner specified in this paragraph.
	 
	 	6.2	 	Entire Agreement. This Agreement, including the Terms and Conditions,
constitutes the entire agreement between the parties with respect to the subject matter
hereof and supersedes and rescinds all prior agreements, understandings and
representations, both oral and written, between the parties relating to the subject
matter hereof.
	 
	 	6.3	 	Assignment; Change of Control. Purchaser shall not assign this
agreement without the consent of the Seller. This agreement shall bind and inure to
the benefit of Purchaser and Seller and their respective successors, heirs,
representatives, and assigns.
	 
	 	6.4	 	Waiver; Severability. Delay or failure by Seller to exercise any
right under this agreement or applicable law shall not constitute a waiver of that or
any other right or subsequent right. If any term of this Agreement is invalid or
unenforceable under any statute, regulation, ordinance, executive order, or other rule
of law, such term(s) will be deemed





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




4









 









	 	 	 	reformed or deleted, as the case may be, but only to the extent necessary to comply
with such statute, regulation, ordinance, order or rule, and this Agreement’s
remaining provisions will remain in full force and effect.
	 
	 	6.5	 	No Intended Third Party Beneficiary. The parties acknowledge and agree
that the rights and interests of the parties under this Agreement are intended to
benefit solely the parties to this Agreement, except as expressly set forth in this
Agreement.
	 
	 	6.6	 	Section Headings. The Section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or be taken
into consideration in the interpretation of this Agreement. All references to
Sections, Schedules, and Exhibits are to Sections, Schedules, and Exhibits in or to
this Agreement unless otherwise specified.
	 
	 	6.7	 	Choice of Law. This Agreement shall be interpreted and governed by the
internal laws of the State of Michigan, without reference to any laws that would cause
the application of the law of another state. The United Nations Convention on
Agreements for the International Sale of Goods will not apply to this Agreement.
	 
	 	6.8	 	Arbitration. Any dispute, controversy or claim arising out of or
relating to this Agreement, or the breach, termination or invalidity thereof, shall be
settled by binding arbitration in accordance with the American Arbitration Rules in
force as of the date of this Agreement. It is further agreed that: (a) the authority
appointing the arbitrators shall be the American Arbitration Association; (b) the
number of arbitrators shall be three; (c) the place of arbitration shall be Lansing,
Michigan; (d) any such arbitration shall be administered by the American Arbitration
Association in
accordance with its Commercial Arbitration Rules; and (f) the substantive law
governing the Agreement shall be Michigan law, but not including conflict of laws
rules. Any award or decision reached by such arbitration shall be binding and final
and a judgment of the Michigan Circuit Court or the United States District Court may
be rendered thereon.
	 
	 	6.9	 	Counterparts; Authorization. This Agreement may be executed in any
number of separate counterparts by the parties and each of which when so executed will
be deemed to be an original and all of which counterparts taken together will
constitute one and the same instrument. Facsimile or other electronic signatures shall
be treated as originals for all purposes. The parties executing this Agreement warrant
that they have the power and authority to execute this Agreement and this Agreement has
been duly authorized by the parties.






	7.0	 	JURY TRIAL WAIVER





Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




5









 









SELLER AND PURCHASER ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE,
BUT THAT IT MAY BE WAIVED. EACH OF SELLER AND PURCHASER, AFTER CONSULTING (OR HAVING THE
OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY, VOLUNTARILY, AND
INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING
BROUGHT BY THE OTHER PARTY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
DOCUMENT PERTAINING TO THIS AGREEMENT.



[Signatures appear on the following page]




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




6









 








IN WITNESS WHEREOF, Seller and Purchaser agree to the terms of this Agreement as of the Effective
Date.




	 	 	 	 	 	 	 	 
	ASPEN AEROGELS, INC.	 	SILBOND CORPORATION	 
	 
	BY: 	 /s/ Kevin Schmidt 	 	BY: 	 /s/ Jay J. Hansen 	 
	 	Its: 	VP of Operations 	 	 	Its: 	Vice President	 
	 



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




7









 








Exhibit A


Specifications




PRODUCT — Silbond® 40




	 	 	 	 	 

	SPECIFICATIONS:

	 	(at 20°C unless indicated)	 	 
	 
	 	 	 	 
	Sp Gr @ 20°C

	 	1.055-1.065
	 	QC07100P
	 
	 	 	 	 
	Color, APHA

	 	30 Maximum
	 	QC07101P
	 
	 	 	 	 
	Acidity wt% (as HCI)

	 	0.001 Maximum
	 	QC07102P
	 
	 	 	 	 
	Alkalinity wt % (as NH3)

	 	0.001 Maximum
	 	QC07102P
	 
	 	 	 	 
	Silica wt %

	 	40.0 Minimum
	 	QC07106P
	 
	 	 	 	 
	Low Boilers wt % (GLC)

	 	2.5 Maximum
	 	QC07107P
	 
	 	 	 	 
	Iron ppm

	 	3.0 Maximum
	 	QC07110P
	 
	 	 	 	 
	Suspended Matter

	 	Substantially Free
	 	Visual






Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




 









 








Exhibit B



Quantity Schedule




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	Month	 	Available Lbs.	 	Order Forecast	 	Price @$[***] per LB	 	Equivalent Tankers (1)
	January

	 	 	200,000	 	 	 	—	 	 	—
	 	 	—	 
	February

	 	 	200,000	 	 	 	80,000	 	 	[***]
	 	 	2	 
	March

	 	 	200,000	 	 	 	120,000	 	 	[***]
	 	 	3	 
	April

	 	 	200,000	 	 	 	160,000	 	 	[***]
	 	 	4	 
	May

	 	 	200,000	 	 	 	200,000	 	 	[***]
	 	 	5	 
	June

	 	 	200,000	 	 	 	240,000	 	 	[***]
	 	 	6	 
	July

	 	 	200,000	 	 	 	240,000	 	 	[***]
	 	 	6	 
	August

	 	 	200,000	 	 	 	240,000	 	 	[***]
	 	 	6	 
	September

	 	 	200,000	 	 	 	240,000	 	 	[***]
	 	 	6	 
	October

	 	 	200,000	 	 	 	320,000	 	 	[***]
	 	 	8	 
	November

	 	 	200,000	 	 	 	280,000	 	 	[***]
	 	 	7	 
	December

	 	 	200,000	 	 	 	280,000	 	 	[***]
	 	 	7	 
	Totals

	 	 	2,400,000	 	 	 	2,400,000	 	 	[***]
	 	 	60	 






Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




 









 








Exhibit C




General Terms and Conditions of Sale


[Attached]



Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




 









 








Silbond Corporation Conditions of Sale




1. ENTIRE AGREEMENT: These general terms and conditions of sale (“Terms and Conditions”), together
with each of the terms set forth in the document(s) to which these Terms and Conditions are
attached (collectively with these Terms and Conditions, this “Agreement”), exclusively govern the
sale of products or services (collectively, “Products”) from Sibond Corporation (“Seller”) to the
Purchaser(s) set forth in this Agreement (“Purchaser”), and constitute the entire agreement between
Seller and Purchaser relating to the Products. The terms of this Agreement expressly supersede and
exclude the terms and conditions set forth on any purchase order, quotation or other documentation
issued by Purchaser (including any general terms and conditions of purchase), each of which are
hereby rejected by Seller. Any proposal for additional or different terms or any attempt by
Purchaser to vary this Agreement in any degree is rejected and such additional and/or different
terms will not become a part of any agreement between the parties related to the Products. Neither
party shall claim any modification, limitation or release from any of the terms set forth in this
Agreement except by written agreement to that effect signed by Seller and Purchaser.




2. ACCEPTANCE: Purchaser shall inspect the Products upon receipt, and within thirty (30) days
thereafter shall give written notice stating with specificity any defects or omissions relating to
the Products. Failure to give such written notice within thirty (30) days after receipt of the
Products shall constitute irrevocable acceptance of the Products. ALL DEFECTS AND NONCONFORMITIES
THAT ARE NOT SPECIFIED ARE WAIVED BY PURCHASER. No attempted revocation of acceptance will be
effective, and purchaser will be limited to any available remedies specifically provided in this
Agreement for breach of warranty. Seller has a reasonable period of time to cure any
nonconformity.




3. WEIGHTS: Seller’s weights shall govern, except that in the case of proven error, adjustment
shall be made.




4. PAYMENT AND SECURITY: The purchase price for the Products will be as set forth in this
Agreement, or, if no purchase price is set forth in this Agreement, the purchase price will be
Seller’s price as of the date of delivery. Purchaser will pay for Products without setoff,
recoupment, or deduction of any kind, upon receipt in U.S. funds in accordance with the payment
terms set forth in this Agreement, or, if no payment terms are set forth in this Agreement, within
30 days from the invoice date. If payment is not made as provided in this Agreement, or if
Purchaser’s financial condition becomes unsatisfactory to Seller (as determined in Seller’s sole
discretion), Seller may, at its option: (1) suspend performance of its obligations under this
Agreement, including by withholding future deliveries of Products to Purchaser until such breach
has been cured or Purchaser’s financial condition is improved to Seller’s satisfaction; (2) require
payment in advance as to future deliveries or security to ensure payment; (3) demand return from
Purchaser of any Products under this Agreement or any other agreement for which payment has not
been made; or (4) cancel this Agreement. Purchaser agrees to indemnify and hold harmless Seller
from any and all legal fees and costs that may be required to collect any overdue balances. Seller
may offset, deduct, or recoup any amounts owed by Seller
or any of its affiliates or subsidiaries to Purchaser against any amounts owed by Purchaser to
Seller or any of its affiliates or subsidiaries. If deliveries of Products are to be made in
Installments, the Purchase price of each installment shall, at Seller’s option, be recoverable as a




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




 









 








separate sale. The remedies contained in this paragraph 4 are cumulative and shall be in addition
to any other remedies available to Seller under applicable law.




5. TRANSPORTATION CHARGES AND TAXES. Unless otherwise provided in this Agreement, all Products
will be delivered ex works Seller’s facility (Incoterms 2000) and, in addition to the applicable
purchase price, Purchaser shall pay or shall promptly reimburse Seller for all transportation or
freight costs and for all sales, use, or excise taxes, assessments, or other charges attributable
to the sale, use, shipment, transportation, or delivery of the Products.




6. TITLE AND RISK OF LOSS: Title to all Products shall remain with Seller until the purchase price
and all other amounts due hereunder have been paid. Notwithstanding the foregoing, risk of loss of
the Products shall pass to Purchaser upon tender of the Products by Seller to the carrier at
Seller’s shipping point.




7. CONTAINERS: All returnable containers shall remain the property of Seller and shall be returned
by Purchaser to Seller at Purchaser’s expense, freight prepaid, to Seller’s shipping point no later
than sixty (60) days from the date the Products are placed with the carrier for shipment to
Purchaser. Purchaser shall not use Seller’s returnable containers for any purpose other than the
reasonable storage of the Products originally delivered therein. Purchaser assumes all
responsibility for and all liability arising out of damage to or destruction of Seller’s returnable
containers from the time of Seller’s tender to carrier at Seller’s shipping point to the time of
their return to Seller’s shipping point, reasonable wear expected.




8. GENERAL WARRANTIES: Subject to the limitations set forth in this Agreement, Seller warrants to
Purchase (and not to Purchaser’s customers or any third party) for a period of (6) months after the
applicable delivery date for the Products only that the Products shall conform to the description
set forth in this Agreement, that Seller shall convey good title thereto, and that such Products
shall be delivered free from any lawful security interest or encumbrance unknown to Purchaser.
Except for those Products that are made according to designs provided by Purchaser, Seller warrants
that the Products do not infringe any United States patent. Purchaser agrees that it shall
promptly notify Seller of any claim or suit alleging patent infringement, shall permit Seller (at
Seller’s election and in its sole discretion) to control the defense or compromise of such claim or
suit, and shall provide Seller with all necessary information, authority and assistance. SELLER
DOES NOT WARRANT THAT PURCHASER’S PARTICULAR USE OF THE GOODS EITHER ALONE OR IN COMBINATION WITH
OTHER MATERIALS OR THAT ANY PRODUCT OBTAINED THEREFROM WILL NOT INFRINGE A PATENT.




9. LIMITATIONS. Any description of the Products, including in catalogues, brochures, price lists,
or other information provided to Purchaser from Seller, including specifications, shipping
instructions, technical advices, illustrations, representations as to quality or capabilities
(whether oral or in writing), or any other information, unless specifically set forth in this
Agreement, is not part of the basis of the bargain and does not constitute a warranty that the
Products shall conform to the description. The use of any sample or model in connection with this
Agreement is for illustrative purposes only, is not part of the basis of the bargain, and is not to
be construed as a warranty that the Products will conform to the sample or model. No




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




 









 








affirmation of fact or promise made by Seller, whether or not in this Agreement, shall constitute a
warranty that the Products will conform to the affirmation or promise. Seller’s liability for
breach of warranty is limited to replacing or repairing the Products, at Seller’s discretion. The
warranty is valid only if Purchaser notifies Seller in writing within 30 days after discovery of
any alleged nonconformity.




10. DISCLAIMER: THE WARRANTIES SET FORTH HEREIN ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR
IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.




11. LIMITATION OF REMEDIES: PURCHASER’S REMEDIES SET FORTH IN THESE TERMS ARE EXCLUSIVE. SELLER
WILL NOT BE HELD LIABLE FOR ANY CLAIMS OF ANY KIND GREATER IN AMOUNT THAN THE PURCHASE PRICE OF THE
APPLICABLE GOODS. IN NO EVENT SHALL SELLER BE LIABLE FOR COSTS ASSOCIATED WITH THE PURCHASE OF
SUBSTITUTE GOODS BY THE PURCHASER OR ANY SPECIAL, INDIRECT, THIRD PARTY, CONSEQUENTIAL, PUNITIVE OR
EXEMPLARY DAMAGES INCLUDING LOST PROFITS, WHETHER ARISING UNDER CONTRACT, NEGLIGENCE, INDEMNITY,
STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING
ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED LIABILITY PROVIDED HEREIN. Without limiting the
generality of the foregoing, Purchaser assumes all risk and liability for the results obtained by
the use of any Products delivered hereunder in combination with other articles or materials or in
the practice of any process, whether in terms of operating costs, general effectiveness, success or
failure, and regardless of any oral or written statements made by Seller, by way of technical
advice or otherwise, related to the Products’ use. Any proceeding by Purchaser for breach of this
Agreement cannot be filed or maintained unless it is commenced within one year after the cause has
accrued, Purchaser has provided written notice to Seller as provided in this Agreement, and
Purchaser has fully paid all amounts owing to Seller under this Agreement.




12. ALLOCATION: Seller will not be required to sell a greater quantity of Products than it has
available or has allocated for this Agreement. If Seller is unable to supply the total demands for
any Products, Purchaser acknowledges and agrees that Seller may allocate its available supply among
its customers in any manner Seller deems fair and equitable. SELLER WILL NOT BE OBLIGATED UNDER
ANY CIRCUMSTANCES TO PURCHASE PRODUCTS FROM OTHERS TO MEET PURCHASER’S DEMANDS, NOR WILL IT BE
LIABLE FOR ANY DAMAGES OR CLAIMS ARISING THEREFROM.




13. INDEMNIFICATION: Purchaser will defend, indemnify and hold harmless Seller from all losses,
damages, costs, or expenses of any kind incurred as a result of, or arising from: (a) the use or
disclosure of Seller’s confidential or proprietary information by Purchaser or its contractors;
(b) advice furnished by Seller to, and relied on by Purchaser; (c) patent infringement based on
Purchaser’s use of the Products in an overall process or as an element in an overall combination;
(d) the use, storage, sale, processing, or other disposition of the Products, supplies, or
materials used in connection with the Products, or parts manufactured with the Products, if the
action or inaction of the Purchaser, or its employees, customers, or agents, or




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




 









 








the Purchaser’s design specifications, were a material or proximate cause of injuries or damages
giving rise to claims against Seller, or (e) negligence of Purchaser.




14. TECHNICAL INFORMATION / INTELLECTUAL PROPERTY: All specifications, drawings, schematics,
tests, designs, inventions, engineering notices, financial information, technical data, samples,
prototypes, models, and/or equipment (“Technical Information”) supplied by Seller, directly or
indirectly, will remain Seller’s property and will be held in confidence by Purchaser. Purchaser
will not reproduce, use, or disclose Technical Information to others without Seller’s prior written
consent, and will return all Technical Information to Seller upon demand or upon completion by
Seller of its obligations under this Agreement. Purchaser will disclose Technical Information only
to those of its employees that “need to know” and that are contractually bound by confidentiality
obligations equivalent to those contained in this paragraph 14. Purchaser agrees that any
information that Purchaser discloses to Seller related to the design, manufacture, sale, or use of
Products is disclosed as part of the consideration for this Agreement, that Seller may use such
information in any manner and for any purpose, and that Purchaser will not assert any claim against
Seller by reason of such use.




Seller will own all right, title, and interest in any idea, invention, concept, discovery, work of
authorship, patent, copyright, trademark, trade secret, know-how, or other intellectual property
developed by Seller or Purchaser and related, directly or indirectly, to the Products or this
Agreement (“Intellectual Property”), whether or not Seller charges for the Intellectual Property.
Purchaser will assist Seller in perfecting its right, title, and interest in the Intellectual
Property and will execute and deliver all documents reasonably requested by Seller to perfect,
register, or enforce the same. Nothing in this Agreement provides Purchaser with any license in
Seller’s Intellectual property or any license to make or have made the Products to the extent the
Products utilize or include any Seller Intellectual property or Technical Information. If
Purchaser breaches this paragraph 14, Seller will have the right, in addition to all of its other
remedies, to cancel this Agreement and immediately accelerate all amounts due by Purchaser to
Seller. Purchaser will indemnify Seller from all expenses and damages related to a breach of this
paragraph 14. The terms of the paragraph 14 will survive the termination or expiration of this
Agreement.




15. LICENSES: Except to the extent provided in a separate license agreement between Purchaser and
Seller, (a) Seller will retain title to all licensed Products (collectively, “Licensed Products”);
(b) Purchaser will not reverse engineer, disassemble, decompile, or modify Licensed Products and
Purchaser irrevocably grants to Seller all right, title, interest in any modifications to Licensed
Products developed by Purchaser in conjunction with Seller or otherwise; and (c) Seller grants
Purchaser a non-exclusive license in Licensed Products for internal use only during this
Agreement’s term. If Purchaser is in default of any of this Agreement’s terms and conditions, the
rights granted in this paragraph 15 will terminate immediately without notice of any kind. Upon
this Agreement’s termination and expiration, Purchaser will return to Seller all Licensed Products
that are subject to return and any license granted hereunder will terminate and be of no further
effect. The terms of this paragraph 15 will survive the termination or expiration of this
Agreement.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




 









 








16. ADVERTISING / USE OF TRADE NAMES: Except to the extent Seller has consented in writing,
Purchaser will not advertise or publish that Purchaser has purchased Products from Seller or use
any of Seller’s trademarks or trade names in Purchaser’s advertising or promotional materials.
Purchaser may not resell the Products under any brand name other than Seller’s.




17. FORCE MAJEURE: Neither party shall be liable in any respect for failure or delay in the
shipment or acceptance of the Products if hindered or prevented, directly or indirectly, by war,
national emergency, inadequate transportation facilities, inability to secure materials, supplies,
fuel or power, fire, flood, windstorm or other act of God, strike, lockout or other labor dispute,
order or act of any government, whether foreign, national or local, whether valid or invalid, or
any other cause of like or different kind beyond the reasonable control of such party. Strikes,
lockouts, or other labor disputes involving employees of either party shall be deemed to be beyond
the reasonable control of such party. Any quantity of Products so affected shall be deducted from
the total quantity purchased by Purchaser. Seller, during any period of shortage due to any of the
above causes, may allocate its available supply of Products among itself and its customers on
whatever basis it deems desirable.




18. WAIVER; SEVERABILITY: Delay or failure by Seller to exercise any right under this agreement or
applicable law shall not constitute a waiver of that or any other right or subsequent right. If
any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance,
executive order, or other rule of law, such term(s) will be deemed reformed or deleted, as the case
may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order
or rule, and this Agreement’s remaining provisions will remain in full force and effect.




19. COMPLIANCE WITH LAWS: PURCHASER (OR USER) MUST USE THE PRODUCTS IN A SAFE AND LAWFUL MANNER IN
COMPLIANCE WITH APPLICABLE HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS AND LAWS AND GENERAL
INDUSTRY STANDARDS OF REASONABLE CARE. It is Purchaser’s or other user’s responsibility to provide
all proper means that may be necessary to protect effectively all personnel from serious bodily
injury that otherwise may result from the method of particular installation, use, operation, setup,
or service of the Products. Purchaser represents and warrants that the Products will not be
diverted, transshipped, exported or re-exported to any country whatsoever, except in accordance
with all applicable United States laws and regulations, including, but not limited to the Export
Administration Act of 1979, and the regulations issued thereunder. In the event a right to any
drawback(s) exists, the party who paid or is obligated to pay the tariff, tax, or fee subject to
the drawback(s) shall be entitled to the right thereto and the other party shall supply and execute
all documents as necessary to assist in the exercise of such right. Purchaser will be responsible
for all export and import duties, fees, permits, licenses, etc. for Products delivered outside of
the United States.




20. ARBITRATION: Any dispute, controversy or claim arising out of or relating to this Agreement,
or the breach, termination or invalidity thereof, shall be settled by binding arbitration in
accordance with the American Arbitration Rules in force as of the date of this Agreement. It
is further agreed that: (a) the authority appointing the arbitrators shall be the American
Arbitration Association; (b) the number of arbitrators shall be three; (c) the place of arbitration




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.




 









 








shall be Lansing, Michigan; (d) any such arbitration shall be administered by the American
Arbitration Association in accordance with its Commercial Arbitration Rules; and (f) the
substantive law governing the Agreement shall be Michigan Law, but not including conflict of laws
rules. Any award or decision reached by such arbitration shall be binding and final and a judgment
of the Michigan Circuit Court or the United States District Court may be rendered thereon.




21. ADDITIONAL PROVISIONS: This Agreement shall be interpreted and governed by the internal laws
of the State of Michigan, without reference to any laws that would cause the application of the law
of another state. The United Nations Convention on Agreements for the International Sale of Goods
will not apply to this Agreement. Purchaser shall not assign this Agreement without the consent of
the Seller. This agreement shall bind and inure to the benefit of Purchaser and Seller and their
respective successors, heirs, representatives, and assigns. The parties acknowledge and agree that
the rights and interests of the parties under this Agreement are intended to benefit solely the
parties to this Agreement, except as expressly set forth in this Agreement.




Portions of this Exhibit were omitted and have been filed separately with the Secretary of the
Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to
Rule 406 of the Securities Act of 1933, as amended.