EXHIBIT 10.1
(Amendment 1 to Purchase and Supply Agreement)
AMENDMENT 1
PURCHASE AND SUPPLY AGREEMENT
This Amendment 1 ("Amendment 1") to the May 28, 1998 Purchase and Supply
Agreement (the "Agreement") by and between Delco Electronics Corporation, a
Delaware corporation and a subsidiary of Delphi Automotive Systems LLC,
("Delco") and Flexpoint, Inc. a Utah corporation ("Flexpoint") shall become
effective as of May 5, 2000 (the "Effective Date") and is being issued
pursuant to Section 5.09 of the Agreement. Delco and Flexpoint are sometimes
hereinafter referred to collectively as the "Parties" or individually as a
"Party".
The Agreement shall be amended as follows:
1. Section 2 is deleted in its entirety and replaced with the following:
2. SUPPORT
2.01 During the term of this Agreement, Flexpoint shall cooperate and
provide Delco with reasonable engineering support for the design and assembly
of the WBSS as needed by Delco and Delco shall provide Flexpoint with
financial support in the form of an interest free loan as set forth in this
Section 2.01. Such interest free loan is secured by the executed promissory
note attached hereto as Exhibit "G", evidencing Flexpoint's obligation to
repay the loan payments made by Delco. The following loan payments will be
made to Flexpoint by Delco during the twelve (12) months following the
execution of the Amendment 1 to the Agreement:
Loan Payment Amount Loan Payment Due Date
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$800,000.00 Upon execution of Amendment 1 to the Agreement.
$300,000.00 Each month for eleven (11) months following the
execution of Amendment 1 to the Agreement.
Such loan payments to be made to Flexpoint by Delco which are set forth
above shall not exceed Four Million One Hundred Thousand Dollars ($4,100,000)
and shall be for costs directly related to Delco programs only. Such loan
shall not be subordinated to other Flexpoint debt.
Delco shall retain the right to withhold subsequent $300,000 monthly loan
disbursements to Flexpoint in the event that Flexpoint fails to continue to
use its best efforts to successfully implement the SENSOR MAT and meet any
mutually established critical milestones after it is given a right to cure any
deficiencies. If Delco determines that Flexpoint is not utilizing its best
efforts to successfully implement the SENSOR MAT and has failed to meet
mutually established critical milestones then Delco shall give Flexpoint
written notification of the specific deficiencies. Flexpoint shall be given
sixty (60) days from the date of the notice in which to cure the deficiencies.
If Flexpoint is unable to cure the deficiencies then Delco may discontinue the
payments. When Flexpoint has cured the deficiencies Delco shall again make the
monthly disbursements. Notwithstanding any other provisions to the contrary,
payments shall not be discontinued for any deficiencies that are the result of
third parties over which Flexpoint has no control.
Flexpoint shall provide a summary of Flexpoint's monthly expenditures
documenting that such expenditures are for the Delco program related costs
only. Delco has the right to audit Flexpoint's expenditures to insure that
such expenditures are applied towards Delco program related costs only.
2.02 In addition to the loan payments outlined above in Section
2.01, Delco will make the engineering spending reimbursements listed in the
revised Exhibit "B", which is attached hereto and herein incorporated by
reference.
2.03 During the term of this Agreement, Delco shall cooperate and
provide Flexpoint with reasonable engineering support to assist Flexpoint to
accomplish QS9000 certification and to implement world class manufacturing
practices. However, attainment of such QS9000 certification shall be solely
the responsibility of Flexpoint. Delco makes no representation that Delco's
assistance to Flexpoint will assure that Flexpoint will be able to attain such
certification.
2.04 In order for Delco to recoup the loan payments made to Flexpoint
pursuant to Section 2.01 hereof, Delco shall have the option, at its sole
discretion, to receive loan reimbursement payments from Flexpoint by : (i)
exercising warrants to be issued as hereinafter set forth and having the
exercise price of the warrants credited towards repayment of the loan; or
(ii) through a rebate of seven percent (7%) of the piece price for every
SENSOR MAT purchased by Delco under the Agreement, until all loan amounts paid
to Flexpoint pursuant to Section 2.01 of the Agreement have been reimbursed in
full or (iii) by a combination of the methods of repayment set forth in (i)
and (ii) of this sentence. These rebate payments by Flexpoint are to be made
at the end of each calendar quarter beginning with the end of the calendar
quarter in which Delco purchases the first production SENSOR MAT. Quarterly
increases to the rebate percentage, not to exceed ten percent (10%) of the
piece price, will be made if the actual and forecasted volumes indicate the
total repayment will take longer than four (4) years after Delco purchases the
first production SENSOR MAT. These increases shall be made by prorating the
unpaid balance of the loan by the number of production units forecasted
between the adjustment quarter and the end of the four (4) year period which
began after Delco purchased the first production SENSOR MAT. In the event that
five (5) years after Delco purchases the first production SENSOR MAT the total
loan amount has not been paid in full by Flexpoint, subsequent payments after
year five (5) will be based on a ten percent (10%) rebate until the loan is
paid in full.
In order to facilitate repayment of the loan through exercise of
warrants, if Delco in its sole discretion chooses such form of repayment as
set forth in clause (i) or clause (iii) of the preceding paragraph, Delco
shall have the option of receiving warrants on Flexpoint Sensor Systems, Inc.
common stock commensurate with Delco's disbursements to Flexpoint. Such
warrants shall be issued as soon as practicable after entering into a warrant
agreement in form and substance satisfactory to Flexpoint and Delco, but in no
event later than September 1, 2001, unless Delco otherwise agrees; provided,
however, the exercise price of the warrants shall not exceed one hundred
fifteen percent (115%) of Flexpoint Sensor Systems, Inc. common stock closing
price on the Effective Date of this Amendment 1. Issuance of the warrants does
not in itself obligate Delco to choose repayment through exercise of the
warrants. However, the Parties agree that the warrants shall be exercisable
only with proceeds payable under the loan.
2. Section 6 (Non Competition) of the Agreement is deleted in its
entirety.
3. Exhibit "A" (GM Platforms) of the Agreement is deleted in its entirety
and replaced with a revised Exhibit "A" which is attached to this Amendment 1
and herein incorporated by reference.
4. Exhibit "B" (Engineering Spending Curve) of the Agreement is deleted in
its entirety and replaced with a revised Exhibit "B" which is attached to this
Amendment 1 and herein incorporated by reference.
5. Exhibit "F" (Customer Based Platforms), which is attached to the
Agreement, is deleted in its entirety.
The Parties further agree to continue in good faith to discuss and negotiate
additional amendments to the Agreement. Except for the amendments to the
Agreement set forth above in this Amendment 1 and until amended by subsequent
amendments, all other terms of the Agreement shall remain in full force and
effect.
IN WITNESS WHEREOF, the Parties have caused this Amendment 1 to the
Agreement to be executed on their behalf by their duly authorized officers,
and such Amendment 1 shall become effective on the Effective Date set forth
above.
DELCO ELECTRONICS CORPORATION FLEXPOINT, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇
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Title: Product Line Executive Title: President
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Integrated Safety Electronics
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Date: May 8, 2000 Date: May 5, 2000
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Director Purchasing
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Date: May 8, 2000