Common use of Commercial Contracts Clause in Contracts

Commercial Contracts. The Commercial Contracts are as of the Transfer Date transferred to the Purchaser. The Sellers shall perform and be responsible for all obligations and liabilities under or related to the Commercial Contracts to the extent such obligations are required under the Commercial Contracts to be performed or discharged or such liabilities accrue or relate to events or circumstances occurring prior to and including the Transfer Date. The Sellers shall indemnify and hold harmless the Purchaser against any costs or expenses (including without limitation reasonable legal fees) arising out of or relating to a non-performance or a breach of any Commercial Contract prior to and including the Transfer Date by the Seller. The Purchaser shall perform and be responsible for all obligations and liabilities under or related to the Commercial Contracts to the extent such obligations are required under the Commercial Contracts to be performed or discharged or such liabilities accrue or relate to events or circumstances occurring following the Transfer Date (however, excluding any obligations and liabilities due to the fact that a consent or waiver required from a third party has not been obtained by the Transfer Date). The Purchaser shall indemnify and hold harmless the Sellers against any costs or expenses (including without limitation reasonable legal fees) arising out of or relating to a non-performance or breach of any Commercial Contract by the Purchaser following the Transfer Date (however, excluding any non-performance or breach due to the fact that a consent or waiver required from a third party has not been obtained by the Transfer Date). Sellers shall not take any action for the purpose of discouraging any customer of the EL Business from continuing to do business with the Purchaser. The Parties have prior to Closing received the consents relating to the transfer of the Commercial Contracts listed in Appendix 11. Without prejudice to Section 8.2, in case further consents or waivers of third parties are required for the assignment and transfer of the Commercial Contracts, the Sellers shall obtain (or to procure the obtaining of) such consents or waivers as soon as possible after Closing, and the Purchaser shall take all reasonable efforts to assist the Sellers. In case a third party that must consent to the assignment of a particular contract to Purchaser refuses to do so, the Parties will cooperate and agree in good faith on an arrangement under which the contract is performed by Purchaser on a subcontract basis or on some other arrangement that places the Parties in the same position as would an assignment, provided that such arrangement is not expressly prohibited by the Commercial Contract in concern (in which case the Parties will negotiate in good faith how the situation is solved). Until the relevant consents or waivers are obtained, the Sellers shall after Closing give the benefit of the Commercial Contracts to the Purchaser and give all reasonable assistance to the Purchaser, at the Purchaser’s request, to exercise or enforce the rights and perform the obligations, in each case, of the Sellers under the Commercial Contracts. As regards the “Supply Agreement between ETA and the Planar for Transparent Electroluminescent Displays in Wrist Watches” (with appendices), dated in November 2012, the Parties in particular agree and acknowledge that any payments by ETA to Planar under the said agreement shall belong to the Purchaser and, if these to any extent have been or will be received by any of the Sellers, the Sellers shall cause such payments to be immediately forwarded in full to the Purchaser (including, without limitation, payments referred to in Section 3.1 of the said agreement). According to the “Buffer Stock Agreement” between CEI Contract Manufacturing Limited (“CEI”) and the Parent Company dated 18 February 2011, the Parent Company has authorized CEI, for two years from 18 February 2011, to purchase and keep on hand, for the sole purpose of building certain EL components for the Parent Company, the materials and quantities defined in an Exhibit A to such agreement, required for CEI to produce EL displays in sufficient number to meet the Parent Company’s rotating 90 day purchase forecast. Further, according to the agreement, in the event when there is no demand for 3 months, CEI reserves the right to sell back these components to the Parent Company. However, the Sellers have informed the Purchaser that at the date hereof, there is no buffer stock as the Parent Company and CEI have agreed not to apply the Buffer Stock Agreement anymore. Instead, the Parent Company has agreed, upon CEI’s request, to purchase back from CEI certain components listed in Appendix 18 purchased by CEI upon authorization of the Sellers which may not be ultimately consumed. As of 12 September 2012, the total amount of authorized risk buy material, in aggregate, that were not consumed, amounted to USD 61,220.19 as per Appendix 18 (the “CEI MOQ Stock”). Further, Appendix 19 contains a listing of certain items which are excess material due to no demand (the total value of such items being USD 32,581.47 on the date hereof), which the Parent Company has also undertaken to buy back at CEI’s request (the “Excess Stock”). The Parent Company has informed the Purchaser that so far CEI has not exercised its right to sell back components to the Parent Company (or demanded such right to be exercised), even though some of the components appear to be more than 12 months old. The Parties have agreed that the above described obligations of the Parent Company to buy back the components of the CEI MOQ Stock and/or Excess Stock will be transferred to the Purchaser as described above upon Closing, subject to the following: (i) the Parent Company represents and warrants that the information included in Appendices 18 and 19 is true, correct and complete, (ii) the Parent Company will indemnify and hold harmless the Purchaser from (x) any claims of CEI, presented at the latest on 30 November 2013, regarding selling back to the Purchaser any components purchased by CEI which at the Transfer Date were more than three (3) months old (i.e. purchased more than 3 months ago), and (y) any costs and losses arising from any claim of CEI, regarding selling back any components purchased by CEI on or prior to the Transfer Date which are not presented in Appendices 18 and 19 as part of CEI MOQ Stock amounting to USD 61,220.19 or as part of Excess Stock amounting to USD 32,581.47, or for which the price payable by Purchaser exceeds the value presented in such Appendices.