PURCHASE AGREEMENT
Exhibit 10.7
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This
is an agreement, (“AGREEMENT”), made and entered into as of April 1, 2008 (“EFFECTIVE
DATE”) between the BUYER and SELLER (individually a “PARTY” and collectively the
“PARTIES”).
1 PARTIES
1.1 BUYER
The
Procter & Xxxxxx Manufacturing Company at Xxx Xxxxxxx & Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxx 00000, U.S.A.,
The
Procter & Xxxxxx Distributing LLC at Xxx Xxxxxxx & Xxxxxx Xxxxx,
Xxxxxxxxxx, Xxxx 00000, XXX and
Procter
& Xxxxxx International Operations SA at 47, route de Saint-Georges, 1213
Xxxxx-Xxxxx 0, Xxxxxx, Xxxxxxxxxxx
(each
entity listed under this heading, individually and collectively,
“BUYER”).
1.2 SELLER
FutureFuel Chemical Company at 0000
Xxx Xxxx, Xxxxxxxxxx, Xxxxxxxx 00000, X.X.X. (“SELLER”).
1.3 MULTIPLE
BUYER
The
PARTIES hereby acknowledge and agree that (i) the obligations of SELLER
hereunder are for the benefit of, and may be enforced by, each respective BUYER;
and (ii) no BUYER shall have any liability to SELLER or any third party
hereunder with respect to any breach by or obligation of any other
BUYER.
2 GOODS
2.1 GOODS;
SPECIFICATIONS
SELLER
shall sell and BUYER shall purchase stabilized sodium salt of Nonanoyl
OxyBenzene Sulfonate (NOBS) in accordance with the terms and conditions set
forth in this AGREEMENT (“GOODS”) in strict compliance with the specifications
as set forth in BUYER’s Specification
Sheet(s) *** which
are attached hereto as Exhibit 1 and incorporated herein by reference and
forming a part hereof and as may be amended from time to time in accordance
with the Section entitled SPECIFICATION
CHANGES (“SPECIFICATIONS”).
2.2 SPECIFICATION
CHANGES
2.2.1 GENERAL
From
time to time, BUYER may in good faith revise, supplement or otherwise amend
the SPECIFICATIONS by written notice to SELLER. These revised
SPECIFICATIONS shall become effective sixty (60) calendar days after SELLER’s
receipt of such notice (“CHANGE DATE”) unless SELLER provides BUYER with a
written objection prior to the CHANGE DATE (“OBJECTION”). SELLER
shall act in good faith and use commercially reasonable efforts to accept each
revised SPECIFICATIONS. If SELLER ships GOODS against a PURCHASE
ORDER (as defined below) requesting GOODS in accordance with the revised
SPECIFICATIONS, or if SELLER fails to provide the OBJECTION within such
60-day period, then such revised SPECIFICATIONS shall replace the prior
SPECIFICATIONS for purposes of this AGREEMENT.
2.2.2 OBJECTION
If
SELLER provides an OBJECTION prior to the CHANGE DATE, the PARTIES shall
promptly discuss the reason for the OBJECTION and attempt in good faith and with
commercially reasonable efforts to resolve the
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same. If
the PARTIES cannot resolve the OBJECTION within ninety (90) calendar
days after the CHANGE DATE, then BUYER shall be entitled to immediately (i)
terminate this AGREEMENT without any penalty, liability or further
obligation except as otherwise set forth herein; (ii) purchase the GOODS
from other suppliers in which case the obligations of BUYER and SELLER hereunder
shall be reduced accordingly; or (iii) continue purchases under this AGREEMENT,
in which case the SPECIFICATIONS shall not be revised. BUYER must
notify SELLER within thirty (30) days after the end of such 90-day period as to
which of clauses (i), (ii) or (iii) it has elected.
2.3 PRODUCTION
PROCESS AND/OR RAW MATERIAL CHANGES
SELLER
shall not make any change to the raw and pack material feedstock or any portion
or component of the GOODS, or any material change to the production process or
the production equipment relating to SELLER’s performance under this AGREEMENT,
unless and until SELLER has obtained BUYER’s prior written
consent. BUYER shall be entitled to reject any such change, in its
sole discretion.
2.4 MATERIAL,
PRODUCT OR EQUIPMENT DISPOSAL
In
the event that any material, product or equipment, including, but not limited
to, packaging materials, printing plates, molds, formulations, fragrances and
ingredients, which incorporates BUYER’s IP RIGHTS (as defined
below) requires disposal (“DISPOSAL ITEM”) while under SELLER’s ownership
or control, SELLER is responsible for ensuring that such disposal is carried out
under SELLER’s direct control and full supervision in order to ensure that the
DISPOSAL ITEM is made entirely unsalvageable. SELLER shall not
contract out such disposal or involve any third parties in this process without
the prior written consent of BUYER provided that SELLER may dispose of a
DISPOSAL ITEM as entirely unsalvageable waste with any duly licensed landfill or
waste disposal site without BUYER’s prior written consent. Upon expiration or
termination of this AGREEMENT, SELLER shall compile an inventory of currently
held materials identifying all DISPOSAL ITEMS for agreement with BUYER as to
which items require disposal in accordance with the procedure described above.
SELLER is responsible for taking all commercially reasonable steps to
prevent the counterfeiting of BUYER’s current or previously marketed products or
the infringement of BUYER’s IP RIGHTS resulting from the use of any DISPOSAL
ITEMS.
3 QUALITY
AND ACCEPTANCE
3.1 QUALITY
The
GOODS shall be in strict compliance with the SPECIFICATIONS and in accordance
with the terms and conditions set forth in this AGREEMENT.
3.2 ACCEPTANCE
Notwithstanding
BUYER’s acceptance of any GOODS, BUYER shall, for a period of ninety (90) days
after receipt of GOODS at the BUYER’s applicable manufacturing facility,
continue to have the right to revoke such acceptance with respect to all or any
portion of such GOODS that BUYER reasonably determines do not meet the terms and
conditions set forth in this AGREEMENT. After such 90-day period,
such GOODS will be deemed to be in compliance with the
SPECIFICATIONS.
3.3 RETURN,
REWORK & SCRAPPING
Any
GOODS DELIVERED (as defined below) by SELLER to BUYER that are not in full
compliance with the SPECIFICATIONS may, upon mutual agreement between BUYER and
SELLER made within five (5) calendar days after BUYER’S notice to SELLER, be (i)
returned to SELLER at SELLER’s expense for credit to BUYER at the full PRICE (as
defined below) plus all costs and expenses associated with such return,
including, without limitation, payment or reimbursement for customs duties and
freight charges; (ii) scrapped by BUYER, at SELLER’s expense, in which case
BUYER shall be relieved of any payment obligations with respect to such GOODS,
or (iii) reworked by SELLER, at SELLER’s expense. The rights and remedies set
forth in this Section are not exclusive and nothing herein shall limit the
rights and remedies either PARTY may have under this AGREEMENT or at
LAW (as defined below).
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4 QUANTITY
4.1 PURCHASE
& SALE OBLIGATIONS
Upon
BUYER’s request during the PERIOD (as defined below), and in accordance
with the terms and conditions set forth in this AGREEMENT, SELLER shall sell and
BUYER shall purchase 100% of BUYER’s requirements for GOODS, estimated to
be *** per
year *** . For
purposes of clarification, these numbers are estimates and shall not be
construed as a minimum purchase commitment or give rise to liability on behalf
of BUYER if BUYER’s purchases of GOODS are less than these
estimates.
During
the PERIOD, BUYER shall offer SELLER the first right of refusal to supply
NOBS-derived material for use as bleach activator for BUYER’s
requirements. BUYER shall give written notice to SELLER at least six
(6) months prior to the need for such NOBS-derived material, and SELLER shall
have sixty (60) days from BUYER’s notification to provide a commercial proposal
in writing to supply such NOBS-derived material. SELLER’s proposal
shall constitute a commitment to make such NOBS-derived material available to
BUYER, on mutually agreed terms, on or before six (6) months from the date of
BUYER’s initial written notice to SELLER. If SELLER declines to
supply such NOBS-derived material or if BUYER and SELLER cannot agree in good
faith on commercial terms for such supply within thirty (30) days from BUYER’s
receipt of proposal from SELLER, then BUYER’s obligations to purchase its
requirements of NOBS-derived material from SELLER will be waived.
4.2 PURCHASE
ORDERS
From
time to time during the PERIOD of this AGREEMENT, BUYER may request GOODS from
SELLER pursuant to and in accordance with separate BUYER forms of purchase
orders, releases or other related documentation (collectively “PURCHASE
ORDERS”). Such PURCHASE ORDERS shall specify quantities of GOODS,
shipping instructions, delivery date(s) and detailed instructions for the
delivery of GOODS (with release schedules, delivery orders or equivalent
notices). Each PURCHASE ORDER shall be binding upon SELLER and BUYER,
and shall be deemed to constitute a part of this AGREEMENT as if fully set forth
herein, and all terms and conditions of this AGREEMENT shall be deemed to apply
to the subject matter of such PURCHASE ORDER as if fully set forth
therein. In the event of any conflict or inconsistency between the
terms of this AGREEMENT and the terms of any PURCHASE ORDER, the terms of this
AGREEMENT shall prevail.
4.3 ESTIMATED
ORDERS
No later
than fifteen (15) days prior to the beginning of each calendar quarter under
this Agreement, BUYER will provide to SELLER estimated orders and bulk rail
shipping schedules for the next calendar quarter and estimated orders for the
following calendar quarter. Lead-times and related procedures for
orders and order changes will be established and updated by mutual agreement of
BUYER and SELLER.
4.4 REDUCTION
OR DISCONTINUANCE OF PURCHASES
SELLER
acknowledges and agrees that BUYER may deem it necessary, from time to time, to
reduce or discontinue purchases of the GOODS covered by this AGREEMENT because
of product or packaging reformulation; process change; changes in technology;
changes in the laws governing the GOODS or sale or distribution of the GOODS;
the discontinuance of the GOODS; divestiture of the business in which the GOODS
reside; relocation of production to one of BUYER’s facilities; or similar
reasons. In such event BUYER shall provide SELLER with reasonable,
but not less than three hundred and sixty five (365) calendar days, prior
written notice of any such reduction or discontinuance, and BUYER shall be
entitled at the end of such 365-day period to reduce or discontinue further
purchases of GOODS from SELLER hereunder without any penalty, liability or
further obligation. Notwithstanding the preceding: (i) BUYER is
still liable in the manner set forth herein for all GOODS ordered prior to such
reduction or discontinuance, and for all inventory and work-in-process;
(ii) all indemnifications set forth herein survive such reduction or
discontinuance; (iii) in the event of a reduction, BUYER’s obligations
hereunder survive except in the reduced amount; and (iv) SELLER’s
obligations hereunder are reduced or eliminated in the same manner as
BUYER’s.
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4.5 MAXIMUM
PURCHASES DURING ANY CALENDAR QUARTER
Should
BUYER’s orders for GOODS on a 100% active basis
exceed *** for
a calendar quarter, SELLER requires forty five (45) days written notice from
BUYER. SELLER shall accept BUYER’s order up
to *** for
that calendar quarter immediately and within fourteen (14) days of receiving
such order, have the option to not accept the remaining order
above *** *** for
that calendar quarter in part or in full, after exhausting all reasonable
technical and commercial efforts to meet the order
above ***
*** for that
calendar quarter. If SELLER elects not to accept a portion of such
order as set forth in the preceding sentence, then BUYER may purchase the amount
SELLER rejects from alternate suppliers.
4.6 MAXIMUM
PURCHASES DURING ANY CALENDAR YEAR
SELLER is
not obligated to accept order of GOODS from BUYER aggregating more
than ***
***on a 100% active basis during any
calendar year. If SELLER elects not to accept some or all of an order
as a result of the preceding sentence, then BUYER may purchase the amount
above *** on
a 100% active basis during such calendar year which SELLER rejects from
alternate suppliers. In the event SELLER elects to accept orders for
GOODS
above *** on
a 100% active basis during any calendar year, the PRICE for such GOODS
above *** on
a 100% active basis shall be negotiated and agreed to by the PARTIES at such
time. Should the PARTIES be unable to agree upon a PRICE, BUYER may
purchase any amounts over
such *** for
such calendar year from alternate suppliers.
4.7 MAINTENANCE
PERIODS
During
each calendar year during the PERIOD, BUYER and SELLER agree to adjust orders,
inventories and shipping schedules to allow SELLER twenty one (21) days of
maintenance during which the production of GOODS will be
limited. SELLER will plan appropriately to minimize the duration of
these maintenance periods. These maintenance periods do not relieve
SELLER of its obligations to supply GOODS as herein required.
4.8 SHIPPING
WEIGHTS
Absent
manifest error, SELLER’s shipping weights shall govern. Shortages or
overages of less than 1% of the declared net weight will be disregarded, unless
a pattern of shortages occurs. In such case, SELLER will reimburse
BUYER for GOODS BUYER paid for but did not receive due to
shortages. DELIVERY of a specific shipment that is within 5% of the
quantity requested shall be accepted by BUYER as complying with the shipment,
although BUYER shall pay for only the quantity of the actual
DELIVERY.
4.9 SUPPLY
OF NONANOIC ACID
SELLER
agrees to purchase Nonanoic Acid (“ACID”) from a supplier with whom BUYER has
contracted, so long as the ACID meets the specifications in Exhibit 3 and
any modifications agreed upon by the PARTIES in writing. Any new
supplier must be acceptable from a quality standpoint to the PARTIES in addition
to the ACID therefrom meeting such specifications. Inability to meet
BUYER’s orders because of an insufficient supply of ACID from BUYER’s specified
source shall not constitute a default hereunder on the part of
SELLER. BUYER agrees to provide to SELLER all necessary information
and to assist SELLER’s purchase of ACID from BUYER’s specified source throughout
the PERIOD. Notwithstanding any provision herein to the contrary,
SELLER shall have no liability to BUYER for any defects in GOODS which is
directly caused by or directly results from a latent defect in the ACID which
was unknown to SELLER at the time of use of such ACID, provided such ACID was
analyzed in accordance with SELLER’s standard procedures upon receipt from
BUYER’s specified source.
5 PRICE
AND TAXES
5.1 PRICE
The
price(s) for the GOODS shall be as set forth in Exhibit 2 (“PRICE”). The PRICE
shall include any and all packaging and labeling materials to prepare GOODS for
shipping to BUYER’s sites as described in Exhibit 2,
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and labor
to load GOODS at SELLER’s facility on transportation provided by BUYER in
accordance with this AGREEMENT.
5.2 TAXES
BUYER
and SELLER hereby agree that the PRICE does not include any sales, use, excise,
value-added, services, consumption or other tax or duty applicable to the sale
of GOODS hereunder (“TAXES”), the taxable incident of which applies to such sale
or occurs after BUYER’s receipt of title. Rather, such TAXES
(excluding SELLER’s income taxes or taxes based on or measured by income) are
the responsibility of BUYER. SELLER’s invoices shall separately state
the amount of any TAXES that SELLER is charging BUYER consistent with this
Section 5.2, to the extent applicable. BUYER shall provide and make
available to SELLER any resale certificates, information regarding out-of-state
or out-of-country sales or use of equipment, materials or services, and other
exemption certificates or information reasonably requested by
SELLER.
5.3 AUDIT
CLAUSE
Since
this AGREEMENT allows SELLER to pass through cost changes as part of the pricing
provisions of Article 5, SELLER shall maintain all documentation in support of
such changes for at least two (2) years following the date of the change. BUYER
shall have the right to request an audit of SELLER’s supporting documentation,
including price change and rebate notification letters from material suppliers,
within one (1) year after the change, upon thirty (30) days prior written notice
to SELLER. BUYER shall conduct no more than one audit each calendar year. BUYER
and SELLER shall mutually agree on the date, time and location of the audit. The
audit shall be conducted by BUYER’s Internal Controls Department or other
mutually agreeable independent third party at BUYER’s cost. The auditor shall
maintain the confidentiality of all data reviewed which was not previously known
by the auditor or available to third parties on a non-confidential basis. This
obligation of confidentiality shall continue until the material becomes
generally available to the public, is shared with others by the SELLER on a
non-confidential basis, is available to the auditor from third parties on a
non-confidential basis or upon expiration of a period of three years following
the date of the audit, whichever occurs first. The auditor shall return to the
SELLER all materials submitted to the auditor, and destroy all working papers,
notes, memoranda, reports and other derivatives thereof, upon conclusion of the
audit and resolution of any disputed amounts; provided, however the auditor
retains one archival copy of the foregoing solely for the purpose of
administering its confidentiality obligations. The auditor shall share with the
BUYER only the results of the audit. In the event the audit does not support
price changes that have been implemented and/or proposed, BUYER and SELLER will
meet to review the results and make any appropriate pricing
adjustments.
6 CONTRACT
PERIOD & TERMINATION
6.1 CONTRACT
PERIOD
The
period of this AGREEMENT (“PERIOD”) shall begin on the EFFECTIVE DATE and end on
March 31, 2013, unless earlier terminated in accordance with the provisions
hereof.
6.2 EARLY
TERMINATION DUE TO BREACH
6.2.1 EARLY
TERMINATION.
In the
event that (i) a PARTY breaches any material representation, warranty, covenant
or other material obligation set forth in this AGREEMENT, and fails to cure such
breach as promptly as practicable but in any event within sixty (60) days of
notice of such breach by the other PARTY; or (ii) a PARTY terminates or
liquidates its business; then the other PARTY shall be entitled to (a) terminate
this AGREEMENT at any reasonable time thereafter with immediate effect and
without any penalty, liability or further obligation; (b) in the case of BUYER,
purchase GOODS from other suppliers, in which case the obligations of BUYER and
SELLER hereunder shall be reduced accordingly; or (c) in the case of BUYER,
continue purchases under this AGREEMENT. If this AGREEMENT is terminated because
of BUYER’s breach or termination or liquidation of its business, BUYER is
obligated to pay for any GOODS shipped as of the termination date, plus any
inventory and work in process. The termination provisions set out in
this Section are not exclusive, and, subject to the limitations set forth
herein, are in
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addition
to, and not in limitation of, the PARTIES’ rights under this AGREEMENT or at
LAW. Notwithstanding anything set forth in Section 1, a breach hereunder by one
PARTY constituting BUYER will be deemed a breach hereunder by all PARTIES
constituting BUYER.
6.2.2 LEGITIMATE
DISPUTES
This
Section 6.2 shall not be construed as giving either BUYER or SELLER a right
to terminate this AGREEMENT where a legitimate dispute arises between the
PARTIES as to applicability and/or enforcement of any provision
hereof.
6.3 EFFECT
OF TERMINATION
Termination
or expiration of this AGREEMENT shall not relieve either PARTY of any liability
or obligation it may have to the other arising out of or related to acts or
omissions occurring prior to such termination or expiration. In case
of termination of this AGREEMENT by BUYER or expiration of this AGREEMENT other
than as a result of BUYER’s breach, SELLER shall make available for BUYER’s
immediate removal any of BUYER’s property then in the possession of SELLER or
any of its subcontractors, or under SELLER’s or any of its subcontractor’s
control.
7 SHIPPING,
PAYMENT & DELIVERY
7.1 SHIPMENT
TERMS; TITLE AND RISK OF LOSS
Ex-Works SELLER’s
site at Batesville, Arkansas, USA. As used in this AGREEMENT, the
term “DELIVERY” and its derivatives mean delivery as specified in INCOTERMS
2000. SELLER shall retain title and risk of loss for GOODS in
accordance with these terms, except that SELLER will retain the additional
responsibility of loading the GOODS at SELLER’s facility in appropriate
packaging on transportation provided by BUYER in accordance with this AGREEMENT,
at which point title of GOODS will transfer to BUYER. Other
materials, including raw materials purchased by SELLER, co-products, wastes and
residues resulting from the production of GOODS shall be the property of
SELLER.
7.2
PAYMENT TERMS
Net
40 days. For all invoices, the due date for payment shall be
calculated from the date of invoice, which date will not be earlier than date of
loading at SELLER’s facility GOODS corresponding to the invoice, on
transportation provided by BUYER in accordance with this AGREEMENT, unless
otherwise agreed in writing by the PARTIES for any particular
order. BUYER may withhold payment if SELLER’s invoice is incorrect
(but only as to the incorrect payment amount) or does not conform to BUYER’s
invoicing instructions, which may change from time to time (but only if BUYER
has provided SELLER with not less than 30 days prior written notice of such
change), but in such event BUYER must promptly inform SELLER in writing the
specific details as to why the invoice is incorrect. Payment shall be made
in US Dollars. Both PARTIES agree to promptly resolve in good faith
any invoicing errors which arise due to discrepancies between SELLER’s invoice
and BUYER’s invoicing instructions. For each calendar quarter,
invoice PRICE will be estimated based upon the formula defined in Exhibit 2.
There shall be a reconciliation of estimated PRICE after such calendar
quarter(s), the manner of which is set forth in Exhibit 4 (“PRICE RECONCILIATION
PROCEDURE”).
7.3 FINAL
ACCOUNTING
Upon the
termination of this AGREEMENT for any reason, all ACID, unstabilized GOODS and
GOODS in SELLER’s custody shall be delivered to BUYER or shall be disposed of
lawfully as instructed by BUYER. Upon BUYER’s request, SELLER will
make all reasonable efforts to convert unstabilized GOODS into GOODS meeting
SPECIFICATIONS. BUYER shall pay all shipping charges, cost of material, cost to
destroy any such materials and the PRICE for all such unstabilized GOODS
converted into GOODS meeting SPECIFICATIONS, except in the case
of termination of this AGREEMENT due to breach by SELLER, in which
case SELLER shall pay said charges and costs. After final
arrangements have been made for the disposal or shipment thereof, as applicable,
SELLER shall
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send a
final invoice and accounting summary to BUYER, which shall specify any amount
owed to SELLER. Final amounts outstanding shall be payable net 30
days after receipt of invoice and statement.
7.4 LOADING
PROCEDURES
SELLER
will follow mutually agreed loading procedures for BUYER provided
transportation. SELLER will not load any suspect carriers and will
notify BUYER promptly of the same. Further, while carriers are on
SELLER’s property, SELLER will take reasonable measures to protect such carriers
against tampering.
7.5 LATE
PAYMENTS
If any
amount due SELLER hereunder (which is not the subject of a good faith dispute)
is not paid within 30 days of its due date, and SELLER has promptly notified
BUYER in writing of such unpaid amount, notwithstanding any other provision
hereof, SELLER may suspend shipments of GOODS until such payment is received by
SELLER.
8 REPRESENTATIONS
AND WARRANTIES
8.1 GENERAL
REPRESENTATIONS AND WARRANTIES
SELLER
represents and warrants that as of DELIVERY of the GOODS to BUYER, the GOODS
shall be in strict compliance with all SPECIFICATIONS applicable to such
GOODS and that GOODS will be of good workmanship and free from
defects. SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY
KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, AS TO FITNESS FOR A PARTICULAR
PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO GOODS WHETHER USED ALONE ON IN
COMBINATION WITH ANY OTHER MATTER.
8.2 TITLE
AND LIENS
8.2.1 GOODS
SELLER
represents and warrants that upon DELIVERY of the GOODS that SELLER shall pass
to BUYER, and BUYER shall receive, good and marketable title to such GOODS, free
and clear of all liens, claims, security interests pledges, charges, mortgages,
deeds of trusts, options, or other encumbrances of any kind arising by or
through SELLER (“LIENS”).
8.2.2 BUYER’S
PROPERTY
SELLER
shall at all times keep any of BUYER's property in the possession of SELLER or
any of its subcontractors or under SELLER’s or any of its subcontractors’
control free and clear of any LIENS arising by or through SELLER, and
hereby grants BUYER the right to file such protective financing or similar
statements to confirm and record BUYER’s ownership thereof.
8.3 INTELLECTUAL
PROPERTY RIGHTS
8.3.1 OWNERSHIP
OF TECHNOLOGY
All
technical data, process information, patents, copyrights, trademarks, trade
secrets or similar intellectual property rights (collectively “IP RIGHTS”) on
unstabilized and stabilized GOODS obtained from plant operation are the
exclusive property of SELLER. All IP RIGHTS received from BUYER for
stabilizing GOODS are the exclusive property of BUYER. All
information available to either PARTY separate from their relationship hereunder
is excluded from the foregoing provisions. If either PARTY desires to
use the other PARTY’s IP RIGHTS with a third party, a mutually agreeable
licensing agreement may be negotiated at the option of the
licensor.
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8.3.2 PATENT
INDEMNITY
SELLER
agrees to indemnify BUYER against all damages, costs and expenses which result
from claims of infringement of U.S. and non-U.S. patents brought against BUYER
on account of the process used by SELLER, using technology selected by SELLER,
to manufacture GOODS under this AGREEMENT. BUYER agrees to indemnify
SELLER against all damages, costs and expenses which result from a claim of
infringement of U.S. and non-U.S. patents on account of the manufacture and sale
of GOODS or any part of the GOODS under this AGREEMENT using technology selected
by BUYER. Either PARTY claiming indemnity under this
Section 8.3.2 shall notify the other PARTY promptly upon receipt of notice
of any claim. The indemnitor shall, at its option, have the right to
assume the defense of any such lawsuit, and to settle any claim. If
it elects not to assume the defense, the indemnitor shall reimburse reasonable
attorney’s fees incurred by the indemnitee. The indemnitee agrees to
make available any information in its possession reasonably necessary for the
defense of such suit.
8.3.3 GRANT
OF LICENSE
As long
as SELLER is supplying GOODS to BUYER exclusively, BUYER grants SELLER a
fully-paid, non-exclusive license, without sub-licensing rights, under any BUYER
patents protecting processes for the manufacture of GOODS and reduced to
practice prior to the termination of this AGREEMENT. As long as this
AGREEMENT is in effect, SELLER grants BUYER a fully-paid, non-exclusive license,
without sub-licensing rights (except as may be specifically set forth herein),
under any SELLER patents protecting processes for the manufacture of GOODS from
fatty acid anhydride and sodium phenol sulfonate and reduced to practice prior
to the termination of this AGREEMENT.
8.4 CORPORATE
AUTHORITY
The
PARTIES represent, warrant and covenant that (i) each PARTY is and shall be at
all times a legal entity validly existing under the laws of its jurisdiction
with the power to own all of its properties and assets and to carry on its
business as it is currently being conducted; (ii) each PARTY has the power to
execute and deliver this AGREEMENT and to perform its obligations under this
AGREEMENT; (iii) each PARTY’s officer executing this AGREEMENT is duly
authorized to execute and deliver this AGREEMENT on its behalf, and no further
corporate proceedings are necessary with respect thereto; (iv) each PARTY is not
required to obtain the consent of any third party, including the consent of any
party to any contract to which it is a party, in connection with execution and
delivery of this AGREEMENT and performance of its obligations under this
AGREEMENT; and (v) each PARTY’s execution and delivery of this AGREEMENT and
performance of its obligations under this AGREEMENT do not (a) violate any
provision of its articles of incorporation or by-laws or equivalent corporate
provision as currently in effect, or (b) conflict with, result in a breach of,
constitute a default under (or an event which, with notice or lapse of time or
both, would constitute a default under), accelerate the performance required by,
result in the creation of any lien upon any of its properties or assets under,
or create in any party the right to accelerate, terminate, modify, or cancel, or
require any notice under, any contract to which it is a party or by which any of
its properties or assets are bound.
8.5
COMPLIANCE WITH LAWS AND SAFETY MEASURES
8.5.1
LAWS
SELLER
represents, warrants and covenants that SELLER is and shall at all times, be in
compliance with all applicable governmental, legal, regulatory and professional
requirements in the manufacturing and sale of GOODS hereunder, including
without limitation all applicable laws, codes regulations, rules, ordinances,
judgments, orders and decrees, including, without limitation, those related to
IP RIGHTS, fair trade and anti trust, customs, immigration, labor, employment,
working conditions, worker health and safety, branding and labeling,
adulteration and contamination, board of health and environmental matters,
privacy laws, regulations, rules, opinions or other governmental and/or
self-regulatory group requirements or statements of position (collectively
"LAWS").
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8.5.2
LICENSES, CONSENTS, PERMITS
SELLER
represents, warrants and covenants that SELLER has obtained and maintains in
full force and effect all licenses, consents, permits, approvals, authorizations
and the like required by LAW to perform SELLER’S obligation under this
AGREEMENT (collectively “PERMITS”). SELLER shall promptly notify
BUYER if SELLER receives any notice, demand, summons or complaint from any
governmental or regulatory authority, agency or other body relating to the GOODS
and parts thereof or SELLER’S performance in accordance with this
AGREEMENT.
8.5.3 UNDULY
ONEROUS OR EXPENSIVE
If in
SELLER’s or BUYER’s judgment compliance with LAWS or PERMITS made applicable
after the EFFECTIVE DATE is unduly onerous or expensive, BUYER and SELLER will
endeavor to renegotiate the PRICE. If SELLER and BUYER fail to reach
an agreement upon a new PRICE, or cannot agree that such compliance is unduly
onerous or expensive, in either case within sixty (60) days after renegotiation
is requested, BUYER or SELLER shall thereafter have the right to terminate this
AGREEMENT by giving the other PARTY at least sixty (60) days prior written
notice of such termination.
8.6
APPLICABILITY AND SURVIVAL OF REPRESENTATIONS AND WARRANTIES
SELLER’s
representations, warranties and covenants set forth in the Section entitled
GENERAL REPRESENTATIONS AND WARRANTIES shall remain in effect with respect to
each delivery of the GOODS to BUYER for a period of ninety (90) days after
receipt of GOODS at the BUYER’S applicable manufacturing facility. Any
other of SELLER’s representations, warranties, covenants and other obligation
set forth in this AGREEMENT and all of BUYER’s representations, warranties,
covenants and other obligations set forth in this AGREEMENT shall be subject to
all applicable statutes of limitation, similar statutes and other similar
defenses as provided by law or equity.
9 INDEMNIFICATION
AND INSURANCE
9.1 SELLER'S
INDEMNIFICATION OF BUYER
Subject
to the limitations set forth herein, SELLER shall indemnify and hold BUYER
(including BUYER’s officers, directors, employees, affiliates, agents,
contractors, successors, and assigns) (“BUYER INDEMNITEE”) harmless from and
against any and all liabilities, claims, demands, damages, costs, expenses
(including attorneys’ fees and internal costs associated with internal attorney
work) or money judgments (collectively “CLAIMS”) incurred by, or rendered
against BUYER (whether based on facts now known or later discovered) arising out
of the following: (a) the failure of SELLER or those acting under or for SELLER
to comply with any federal, state and local LAWS (including those related to the
environment, health and safety) in connection with SELLER’s performance of this
AGREEMENT (including SELLER’s ownership or operation of its business and
facilities); (b) any alleged or actual contamination of the environment or
damage to natural resources at a facility owned or operated by SELLER or a
facility/location selected by SELLER for its disposal of wastes or any other
facility at which SELLER’s wastes may be released or threatened to be released,
including any liability imposed by any federal, state or local laws, regulations
and ordinances, including CERCLA, RCRA, or comparable and applicable state legal
statute or regulation or any extension or revision thereof; (c) any alleged or
actual damage to any property [including damage to any environmental medium
(air, water, groundwater, soil) or to any natural resources] or any alleged or
actual injury (including death) of persons (including SELLER’s employees or
those acting under or for SELLER) arising out of SELLER’s performance
of this AGREEMENT.
9.2 BUYER’S
INDEMNIFICATION OF SELLER
Subject
to the limitations set forth herein, BUYER shall indemnify and hold SELLER
(including SELLER’s officers, directors, employees, affiliates, agents,
successors, and assigns) (“SELLER INDEMNITEE”) harmless from and against any and
all CLAIMS incurred by, or rendered against SELLER (whether based on facts now
known or later discovered) arising out of the following: (a) the failure of
BUYER or those acting under or for BUYER to comply with any federal, state and
local LAWS (including those related to the environment, health and
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safety)
in connection with BUYER’s performance of this AGREEMENT (including BUYER’s
ownership or operation of its business and facilities); (b) any alleged or
actual contamination of the environment or damage to natural resources at a
facility owned or operated by BUYER or a facility/location selected by BUYER for
its disposal of wastes or any other facility at which BUYER’s wastes may be
released or threatened to be released, including any liability imposed by any
federal, state or local laws, regulations and ordinances, including CERCLA,
RCRA, or comparable and applicable state legal statute or regulation or any
extension or revision thereof; (c) any alleged or actual damage to any property
[including damage to any environmental medium (air, water, groundwater, soil) or
to any natural resources] or any alleged or actual injury (including death) of
persons (including BUYER’s employees or those acting under or for BUYER) arising
out of BUYER’s breach of any representation, warranty, covenant or other
obligation set forth in this AGREEMENT.
9.3 INDEMNIFICATION
PROCEDURES
9.3.1 BUYER
INDEMNITEE
BUYER
INDEMNITEE shall promptly and in any event within thirty (30) calendar days
after receipt of notice of the commencement of any third party legal proceedings
against BUYER INDEMNITEE for which indemnity may be sought under this
Section 9, notify SELLER thereof; provided that the failure to provide such
notice shall not relieve SELLER of its indemnity obligations hereunder unless
and to the extent SELLER is prejudiced by such delay. Upon BUYER INDEMNITEE’s
request, SELLER shall assume, at its own expense, the defense of any such third
party CLAIM with reputable counsel reasonably acceptable to BUYER INDEMNITEE.
SELLER shall be entitled to settle any such third party CLAIM, with BUYER
INDEMNITEE’s written consent (which may be granted or withheld in BUYER
INDEMNITEE’s sole discretion unless there is a complete settlement which
includes a full release of the BUYER INDEMNITEE and no payment of money or other
consideration by the BUYER INDEMNITEE, in which case BUYER INDEMNITEE’s consent
is not required). BUYER INDEMNITEE, at SELLER’s cost, shall
reasonably cooperate with SELLER in the defense of such action as SELLER may
reasonably request.
9.3.2 SELLER
INDEMNITEE
SELLER
INDEMNITEE shall promptly and in any event within thirty (30) calendar days
after receipt of notice of the commencement of any third party legal proceedings
against SELLER INDEMNITEE for which indemnity may be sought under this
Section 9, notify BUYER thereof; provided that the failure to provide such
notice shall not relieve BUYER of its indemnity obligations hereunder unless and
to the extent BUYER is prejudiced by such delay. Upon SELLER INDEMNITEE’s
request, BUYER shall assume, at its own expense, the defense of any such third
party CLAIM with reputable counsel reasonably acceptable to SELLER INDEMNITEE.
BUYER shall be entitled to settle any such third party CLAIM, with SELLER
INDEMNITEE’s written consent (which may be granted or withheld in SELLER
INDEMNITEE’s sole discretion unless there is a complete settlement
which includes a full release of the SELLER INDEMNITEE and no payment of money
or other consideration by the SELLER INDEMNITEE, in which case SELLER
INDEMNITEE’s consent is not required). SELLER INDEMNITEE, at BUYER’s
cost, shall reasonably cooperate with BUYER in the defense of such action as
BUYER may reasonably request.
9.4 INSURANCE
9.4.1 GENERAL
INSURANCE POLICY REQUIREMENTS
For the
PERIOD, SELLER shall maintain at its own expense the insurance coverage set
forth in the Section entitled INSURANCE COVERAGE in full force and effect during
the PERIOD of this AGREEMENT with underwriters reasonably acceptable to
BUYER and having an A. M. Best’s rating of “A VIII” or better or its equivalent
rating where not available. SELLER shall provide BUYER with a copy of
Certificate(s) of Insurance. All insurance policies shall provide for a thirty
(30) calendar days prior written notice to BUYER in the event of termination,
cancellation, non renewal or a material change to the requirements as set forth
in this Section entitled INSURANCE. All insurance policies shall be primary
without right of contribution from any of BUYER’s insurance
carriers.
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9.4.2 INSURANCE
COVERAGE
Commercial
General Liability including Products Completed Operations and Blanket
Contractual “occurrence form” coverage with the following limits of
liability:
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(i)
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$5,000,000
per occurrence combined single limit for Bodily Injury and Property
Damages; and
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(ii)
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Minimum
$5,000,000 limit of liability per occurrence for Products-Completed
Operations, Product Liability and Contractual Liability to include
liability assumed under this
AGREEMENT.
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9.4.3 ADDITIONAL
INSURED
The
Commercial General Liability policy shall include BUYER INDEMNITEE as additional
insured in connection with the activities contemplated by the scope of this
AGREEMENT to be stated explicitly on the Certificate(s) of
Insurance.
9.4.4 WAIVER
OF SUBROGATION
SELLER
hereby irrevocably and unconditionally waives and shall cause its insurers to
irrevocably and unconditionally waive any rights of subrogation for claims
against BUYER INDEMNITEE to be documented to BUYER’s reasonable
satisfaction.
9.4.5 LIABILITY
OF SELLER
SELLER’s
compliance with this Section shall not relieve SELLER of any liability to BUYER
INDEMNITEE arising under any other provision of this AGREEMENT except to the
extent that such monies recovered are paid to BUYER INDEMNITEE to reduce
SELLER’s obligations to BUYER INDEMNITEE. SELLER shall be liable for any and all
deductibles it may incur in connection with any of the policies listed in the
Section entitled INSURANCE.
9.5 LIMITATION
ON LIABILITY
IN NO
EVENT SHALL BUYER’S OR SELLER’S LIABILITY, ONE TO THE OTHER, ARISING OUT OF OR
RELATING TO THE RESPECTIVE OTHER PARTY’S BREACH OF ANY REPRESENTATION, WARRANTY,
COVENANT OR OTHER OBLIGATION SET FORTH IN THIS AGREEMENT EXCEED USD
13 MILLION; PROVIDED HOWEVER, THAT THIS LIMITATION OF LIABILITY SHALL NOT
APPLY TO CLAIMS ARISING OUT OF OR RELATING TO BAD FAITH, INTENTIONAL OR WILLFUL
MISCONDUCT OF A PARTY, ITS EMPLOYEES OR OTHER REPRESENTATIVES, OR TO THIRD-PARTY
CLAIMS FOR PERSONAL INJURY OR PROPERTY DAMAGE TO THE EXTENT CAUSED BY A BREACH
OF ANY REPRESENTATION, WARRANTY, COVENANT OR OTHER OBLIGATION SET FORTH IN THIS
AGREEMENT.
10 MISCELLANEOUS
PROVISIONS
10.1 CONFIDENTIALITY
Prior
to the EFFECTIVE DATE and during the PERIOD of this AGREEMENT, SELLER, its
subcontractors and their employees may become privy, whether in writing, oral or
any other form, and even if not marked as confidential, restricted, proprietary
or other similar designation, with certain proprietary, technical and business
information, and materials of BUYER, its parents, its affiliates and
subsidiaries, including information relative to the BUYER's, its parent’s, its
affiliates’ and subsidiaries’ interests in specific materials or areas of
business, drawings, plans, SPECIFICATIONS, know-how, discoveries, production
methods and any intended use or sale of the GOODS which is the valuable property
of BUYER, its parents, its affiliates and subsidiaries and certain proprietary,
technical and business information furnished to BUYER, its parents, its
affiliates and subsidiaries by a third party on a confidential basis
(collectively "CONFIDENTIAL INFORMATION"). SELLER shall neither analyze,
disassemble for reverse engineering, or otherwise attempt to identify the
intrinsic nature of
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CONFIDENTIAL
INFORMATION nor use nor disclose to any third party, other than its
subcontractors, and shall cause its employees, subcontractors and their
employees to neither analyze, disassemble for reverse engineering, or otherwise
attempt to identify the intrinsic nature of CONFIDENTIAL INFORMATION nor use nor
disclose to any third party, any CONFIDENTIAL INFORMATION other than for
SELLER’s performance in accordance with this AGREEMENT. The commitments set
forth in the preceding sentence shall not extend to any portion of CONFIDENTIAL
INFORMATION, (i) which is already in SELLER’s lawful possession at the time of
disclosure by the BUYER, as established by relevant documentary evidence
satisfactory to BUYER; (ii) which is through no act on the part of the SELLER,
generally available to the public; (iii) which corresponds to that furnished by
the BUYER to any third party on a non-confidential basis; or (iv) which is
required to be disclosed by law or government regulation, provided that SELLER
provides reasonable prior notice of such required disclosure to the BUYER.
SELLER shall take any appropriate reasonable security precautions requested by
BUYER including, without limitation, prohibiting visitors during production of
the GOODS. SELLER shall, at BUYER’s option, return, or destroy all CONFIDENTIAL
INFORMATION promptly upon the earlier of termination or expiration of this
AGREEMENT. All CONFIDENTIAL INFORMATION shall be and remain the sole property of
the BUYER, its parents, its affiliates and subsidiaries, and SELLER shall not
have or obtain any rights therein. BUYER shall be entitled to specific
performance and injunctive relief as remedies for any breach or threatened
breach of any provision of this Section, without the necessity of posting bond
or proving actual damages, which remedies shall not be deemed to be exclusive
remedies for such breach or threatened breach by SELLER, but shall be in
addition to all other available remedies. The rights and obligations as set
forth in this provision shall survive the termination or expiration of this
AGREEMENT.
10.2 FORCE
MAJEURE
Acts
of God, fires, floods, weather, or other catastrophes, epidemics or quarantine
restrictions, or other cause(s) beyond the reasonable control of a PARTY, not
reasonably foreseeable, not caused by acts or omissions of the PARTY affected
and that could not have been avoided through a work around plan which prevent
SELLER from providing or procuring the GOODS, or BUYER from receiving or using
GOODS (“FORCE MAJEURE EVENT”), shall suspend such affected PARTY’s obligation to
perform hereunder during the period required to remove such FORCE MAJEURE EVENT.
Such affected PARTY shall promptly notify the other PARTY of the FORCE MAJEURE
EVENT and the cause of such FORCE MAJEURE EVENT. If performance by
either PARTY is suspended for any period of one hundred and twenty (120)
consecutive days because of a Force Majeure Event, then either PARTY shall be
entitled, at any time thereafter, while such FORCE MAJEURE EVENT continues, to
terminate this AGREEMENT without any penalty, liability or further obligation
therefore, immediately upon notice of such termination to the
PARTY. In the case of FORCE MAJEURE EVENT affecting SELLER, BUYER may
purchase GOODS from other suppliers, in which case the obligations of BUYER and
SELLER hereunder shall be reduced accordingly.
10.3 ASSIGNMENT
None
of the rights, duties, or obligations under this AGREEMENT may be assigned,
delegated or transferred by either PARTY without the other PARTY’s written
consent, which consent will not be unreasonably withheld, delayed or
conditioned. SELLER will not subcontract any portion of this
AGREEMENT without BUYER’s written consent, which consent may not be unreasonably
withheld, delayed or conditioned. Notwithstanding the preceding,
BUYER may assign, without the consent of SELLER, all of its rights, duties and
obligations under this AGREEMENT (i) to an affiliate of BUYER, or (ii) to a
non-affiliated company in connection with the sale (including by merger or
consolidation) of all or substantially all of the assets of the business to
which this AGREEMENT is related. Notwithstanding the preceding,
SELLER may assign, without the consent of BUYER, all of its rights, duties and
obligations under this AGREEMENT in the event of the sale (including by merger
or consolidation) of its manufacturing facility in Batesville, Arkansas;
provided, however, that if such facility is sold to a competitor of BUYER (as
determined at the time of any such sale) whose primary business is in the
following business
segments: *** ***
*** ,*** ,
BUYER may terminate this AGREEMENT without penalty within thirty (30) days
following its receipt of notice that the AGREEMENT has been so
assigned.
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10.4 CONTRACTOR
STATUS
The
PARTIES are and shall remain independent contractors with respect to each other,
and nothing in this AGREEMENT shall be construed to place the PARTIES in the
relationship of partners, joint ventures, fiduciaries or agents. Neither PARTY
is granted any right nor authority to assume nor to create an obligation nor
responsibility, express or implied, on behalf of or in the name of the other nor
bind the other in any manner whatsoever.
10.5 CHANGE
IN SELLER’S OWNERSHIP AND/OR CHANGE IN CONTROL
SELLER shall notify BUYER in writing as
promptly as legally possible of (i) any change of 50% or greater in ownership of
SELLER; or (ii) SELLER selling, transferring or otherwise disposing all or
substantially all of its assets used in any way to perform its obligations set
forth in this AGREEMENT, provided SELLER’s failure to provide such notification
shall not be a BREACH of this AGREEMENT.
10.6 MODIFICATION
AND WAIVER
No
waiver of any provision of this AGREEMENT shall be valid or binding unless in
writing and executed by the PARTY against whom enforcement is sought. No waiver
by either PARTY of any breach, or the failure of either PARTY to enforce any of
the terms and conditions of this AGREEMENT, shall affect, limit or waive that
PARTY’s right to enforce and compel compliance with all terms and conditions of
this AGREEMENT, or to terminate this AGREEMENT according to its terms. No
modification or amendment of any provision of this AGREEMENT shall be
valid or binding unless (i) executed and delivered by both PARTIES hereto in
writing subsequent to the date hereof, (ii) it specifically refers to this
AGREEMENT, and (iii) it specifically states that it is intended to, and shall
take precedence over, this AGREEMENT. Any other modification, amendment or
waiver of any provision of this AGREEMENT shall be null and void.
10.7 INVALIDITY
OR ILLEGALITY
In
the event any provision of this AGREEMENT is declared to be void, invalid or
unlawful by any court or tribunal of competent jurisdiction, such provision
shall be deemed severed from the remainder of this AGREEMENT and the balance
shall remain in full force and effect. The PARTIES shall undertake to replace
the invalid, ineffective, or unenforceable provisions with valid, effective, and
enforceable provisions, which, in their commercial effect, approximate as
closely as possible the intentions of the PARTIES as expressed in the invalid,
ineffective, or unenforceable provisions.
10.8 NOTICES
All
notices given hereunder shall be in writing and shall be deemed to have been
duly given if addressed or sent to the PARTIES at the following addresses and
facsimile numbers or to such other additional address or facsimile number as any
PARTY shall hereafter specify by notice to the other PARTY and the PARTIES’
receipt of such notice:
SELLER: FutureFuel
Chemical Company
0000
Xxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000 XXX
Attn:
Xxxx Xxxx
BUYER:
The Procter & Xxxxxx Manufacturing Company
0000 Xxxxxx Xxxxx Xxxxxx
Xxxxxxxxxx,
XX 00000, XXX
Attn:
Xxxxx Xxxxxxxxx
00.0 XXXXXXXX
Section
headings hereof reference and are for convenience only and shall not affect the
interpretation hereof.
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10.10 COUNTERPARTS
The
PARTIES may execute any number of counterparts to this AGREEMENT, each of which
shall be an original instrument, but all of which taken together shall
constitute one and the same AGREEMENT. Signed facsimile copies of
this AGREEMENT shall bind the PARTIES to the same extent as original
documents.
10.11 ENTIRETY
This
AGREEMENT, which includes the recitals and the Exhibits attached hereto or
incorporated by reference and made part of this AGREEMENT or subsequently
incorporated in this AGREEMENT, constitutes the entire understanding and
agreement between the PARTIES regarding the subject matter of this AGREEMENT,
and supersedes all prior or contemporaneous agreements, oral or written, made
between the PARTIES relating such subject matter.
10.12 AGREEMENT
PRECEDENCE
For
their convenience, the PARTIES may use, from time to time, their standard
purchase orders, site level execution agreements, sales releases, delivery
schedules, acknowledgments, invoices and other similar preprinted
forms. In the event of a conflict between this AGREEMENT and any of
these documents that purport to govern the same matters set forth herein, this
AGREEMENT shall prevail, except as otherwise set forth in the Section entitled
MODIFICATION AND WAIVER.
10.13 GOVERNING
LAW, CONSTRUCTION AND LANGUAGE
This
AGREEMENT shall be governed by and interpreted for any and all purposes in
accordance with the internal laws of Ohio applicable to contracts made and to be
performed wholly within such state, without reference to principles of conflicts
of laws. The courts sitting in, or having principal jurisdiction over Ohio shall
have non-exclusive jurisdiction of all disputes hereunder. Each PARTY hereto
irrevocably agrees that service of process upon it by certified mail-return
receipt requested, addressed to it at its address set forth in the Section
entitled NOTICES, shall constitute good and effective service for all
purposes.
The
PARTIES understand the English language and are fully aware of all terms and
conditions contained herein. If any translation of this AGREEMENT is made, the
English language version shall always continue to govern.
The
PARTIES agree that (i) the United Nations Convention on International Sale of
Goods shall have no force or effect on transactions under or relating to this
AGREEMENT; (ii) no trade usage shall be used to explain or supplement this
AGREEMENT even if either or both PARTIES were aware or should have been aware of
such trade usage; and (iii) this AGREEMENT prevails over any general terms and
conditions of trade.
10.14 SURVIVAL
PROVISIONS
Neither
the expiration nor termination of this AGREEMENT shall affect such of the
provisions of this AGREEMENT that expressly provide that they shall operate
after any such expiration or termination or which of necessity must continue to
have effect after such expiration or termination, notwithstanding that the
clauses themselves do not expressly provide for this.
10.15 PUBLIC
DISCLOSURES
SELLER
shall not in any way disclose the terms and conditions of this AGREEMENT without
the prior written consent of BUYER (which consent may not be unreasonably
withheld, delayed or conditioned) or except as required by law (and BUYER hereby
acknowledges that SELLER has an obligation under the Securities Exchange Act of
1934, as amended, and other rules and regulations of the Securities and Exchange
Commission to disclose this AGREEMENT as a material agreement to which SELLER is
a party). For the avoidance of doubt SELLER shall neither issue press releases
nor any other publication regarding the terms and conditions of this
AGREEMENT,
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TREATMENT
including
statements as to the existence of a relationship between the PARTIES, nor use
BUYER’s, its parents’, its affiliates’ or subsidiaries’ corporate names or
trademarks, without the prior written consent of BUYER (which consent may
not be unreasonably withheld, delayed or conditioned) or except as required by
law (and BUYER hereby acknowledges that SELLER has an obligation under the
Securities Exchange Act of 1934, as amended, and other rules and regulations of
the Securities and Exchange Commission to disclose this AGREEMENT as a material
agreement to which SELLER is a party). Where SELLER disclosure of this AGREEMENT
or parts thereof is required by law, SELLER will provide BUYER a draft copy of
any disclosures to be made to meet SELLER’s legal obligations, at the earliest
possible time prior to making said disclosures. BUYER shall have two (2)
business days from receiving such draft copy to provide SELLER with additional
redaction. SELLER agrees to incorporate BUYER’s additional redaction to the
extent that SELLER’s compliance with its legal reporting obligations is not
impeded, as determined by SELLER’s counsel.
10.16 SUCCESSORS
AND ASSIGNS
All
provisions of this AGREEMENT are binding upon, inure to the benefit of and are
enforceable by or against the PARTIES and their respective heirs, executors,
administrators or other legal representatives and permitted successors and
assigns.
10.17 THIRD-PARTY
BENEFICIARY
This
AGREEMENT is solely for the benefit of the parties and their respective
successors and permitted assigns, and no other person has any right, benefit,
priority or interest under or because of the existence of this
AGREEMENT.
10.18 CONSTRUCTION
Unless
the context of this AGREEMENT clearly requires otherwise: (i) references to the
plural include the singular and vice versa; (ii) references to any person
include such person’s successors and assigns but, if applicable, only if such
successors and assigns are permitted by this AGREEMENT; (iii) references to one
gender include all genders; (iv) “including” is not limiting; (v) “or” has the
inclusive meaning represented by the phrase “and/or”; (vi) the words
“hereof”, “herein”, “hereby”, “hereunder” and similar terms in this AGREEMENT
refer to this AGREEMENT as a whole and not to any particular provision of this
AGREEMENT; (vii) section and Exhibit references are to this AGREEMENT unless
otherwise specified; and (viii) reference to any agreement (including this
AGREEMENT), document or instrument means such agreement, document or instrument
as amended or modified and in effect from time to time in accordance with the
terms thereof and, if applicable, the terms hereof.
BUYER and
SELLER have caused their respective duly authorized representatives to execute
this AGREEMENT, acting as agent(s) as set forth herein.
|
Legal
Entity:
The
Procter & Xxxxxx Manufacturing Company
By (Signature): /s/ Stefan van
Straelen
Printed: Stefan van Straelen
Title: Vice President, Global Chemical
Purchases
Date: June 1, 2008
|
Legal
Entity:
FutureFuel
Chemical Company
By (Signature): /s/ Xxxx Xxxx
Printed: Xxxx Xxxx
Title: Vice
President
Date: May 8, 2008
|
15
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TREATMENT
“***”
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TREATMENT
|
Legal
Entity:
The
Procter & Xxxxxx Distributing LLC
By (Signature): /s/ Xxxxx Mesquila
Printed: Xxxxx Mesquila
Title: President, Global Fabric
Care
Date: 6/5/08
|
|
|
Legal
Entity:
Procter
& Xxxxxx International Operations SA
By (Signature): /s/ Xxxxx
Xxxxxxxx
Printed: Xxxxx Xxxxxxxx
Title: Vice President, Latin America Fabric
Care
Date: 6/5/08
|
16
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TREATMENT
|
RESTRICTED
GCAS:
Is ATS:
|
***
***
|
“***”
DENOTES INFORMATION OMITTED PURSUANT TO
REQUEST
FOR CONFIDENTIAL TREATMENT.
EXHIBIT
1
The
Procter & Xxxxxx Company - Technical Standard
INDIVIDUAL
RAW MATERIAL SPECIFICATION (IRMS)
ORIGINATOR: ***
|
Page
1 of 4
|
| SAP Description: |
NONANOYLOXY BENZENE
SULFONATE (NOBS) EXT
|
GENERAL
Description: NONANOYLOXY
BENZENE SULFONATE (NOBS) EXTRUDATES
Local
Description: Extrudate
of Nonanoyloxy Benzene Sulfonate (NOBS) with binders and solubilising
agents.
Other
Names:
Is this
Standard a
Template: NO
MRMS GCAS
Code:
MRMS SAP
Description:
|
Supersedes
Code
|
SAP
Description
|
Supersedes
On Date
|
|
***
|
NONANOYLOXY
BENZENE SULFONATE (NOBS) EXT
|
|
REASON
FOR CHANGE:
|
***
|
Is this
an Intermediate Material:
Base Unit
of
Measure: KILOGRAM
Shelf
Life:
Shipping
Hazard Classification:
Shipping/Receiving/Storage
Information:
COMMENTS:
PERFORMANCE
SPECIFICATIONS
Check
associated Master Specification for additional requirements, (if Master
exists.)
|
Chg
|
Characteristic
(Ch)
Characteristic
Specifics (CS)
Common
Performance
Specification
Code (CPS)
|
Test
Method (GCAS)
Origin
(Orgn)
Test
Method Number (TM#)
Reference
Document (Ref)
Test
Method Specifics (SP)
|
Sampling
(SM)
Subgroup
(SG)
|
Plant
Testing
|
Lower
Spec Limit (LSL)
Lower
Target (LTGT)
Target
(TGT)
Upper
Target (UTGT)
Upper
Spec Limit (USL)
|
Unit
of Measure (UoM)
Report
to Nearest (RTN)
Report
Type (RT)
Action
(AC)
|
Release
Criteria
|
Criticality
(CR)
Basis
(BA)
|
Test
Group (TG)
Application
(AP)
|
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
***
|
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
CSS
APPROVED Effective Date 3Apr2008 GMT - Printed 03Apr2008 Page 1 of
4
|
RESTRICTED
GCAS:
|
***
|
SAP Description:
|
“***”
DENOTES INFORMATION OMITTED PURSUANT TO
REQUEST
FOR CONFIDENTIAL TREATMENT.
EXHIBIT
1
The
Procter & Xxxxxx Company - Technical Standard
INDIVIDUAL
RAW MATERIAL SPECIFICATION (IRMS)
|
Page 2 of
4
|
|
NONANOYLOXY BENZENE
SULFONATE (NOBS) EXT
|
|
Chg
|
Characteristic
(Ch)
Characteristic
Specifics (CS)
Common
Performance
Specification
Code (CPS)
|
Test
Method (GCAS)
Origin
(Orgn)
Test
Method Number (TM#)
Reference
Document (Ref)
Test
Method Specifics (SP)
|
Sampling
(SM)
Subgroup
(SG)
|
Plant
Testing
|
Lower
Spec Limit (LSL)
Lower
Target (LTGT)
Target
(TGT)
Upper
Target (UTGT)
Upper
Spec Limit (USL)
|
Unit
of Measure (UoM)
Report
to Nearest (RTN)
Report
Type (RT)
Action
(AC)
|
Release
Criteria
|
Criticality
(CR)
Basis
(BA)
|
Test
Group (TG)
Application
(AP)
|
|
***
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“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
CSS
APPROVED Effective Date 3Apr2008 GMT - Printed 03Apr2008 Page 2 of
4
|
RESTRICTED
GCAS:
|
***
|
SAP Description: |
“***”
DENOTES INFORMATION OMITTED PURSUANT TO
REQUEST
FOR CONFIDENTIAL TREATMENT.
EXHIBIT
1
The
Procter & Xxxxxx Company - Technical Standard
INDIVIDUAL
RAW MATERIAL SPECIFICATION (IRMS)
|
Page 3
of 4
|
|
NONANOYLOXY BENZENE
SULFONATE (NOBS) EXT
|
|
Chg
|
Characteristic
(Ch)
Characteristic
Specifics (CS)
Common
Performance
Specification
Code (CPS)
|
Test
Method (GCAS)
Origin
(Orgn)
Test
Method Number (TM#)
Reference
Document (Ref)
Test
Method Specifics (SP)
|
Sampling
(SM)
Subgroup
(SG)
|
Plant
Testing
|
Lower
Spec Limit (LSL)
Lower
Target (LTGT)
Target
(TGT)
Upper
Target (UTGT)
Upper
Spec Limit (USL)
|
Unit
of Measure (UoM)
Report
to Nearest (RTN)
Report
Type (RT)
Action
(AC)
|
Release
Criteria
|
Criticality
(CR)
Basis
(BA)
|
Test
Group (TG)
Application
(AP)
|
|
***
|
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“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
CSS
APPROVED Effective Date 3Apr2008 GMT - Printed 03Apr2008 Page 3 of
4
|
RESTRICTED
GCAS:
|
***
|
SAP Description: |
“***”
DENOTES INFORMATION OMITTED PURSUANT TO
REQUEST
FOR CONFIDENTIAL TREATMENT.
EXHIBIT
1
The
Procter & Xxxxxx Company - Technical Standard
INDIVIDUAL
RAW MATERIAL SPECIFICATION (IRMS)
|
Page 4
of 4
|
|
NONANOYLOXY BENZENE
SULFONATE (NOBS) EXT
|
|
Chg
|
Characteristic
(Ch)
Characteristic
Specifics (CS)
Common
Performance
Specification
Code (CPS)
|
Test
Method (GCAS)
Origin
(Orgn)
Test
Method Number (TM#)
Reference
Document (Ref)
Test
Method Specifics (SP)
|
Sampling
(SM)
Subgroup
(SG)
|
Plant
Testing
|
Lower
Spec Limit (LSL)
Lower
Target (LTGT)
Target
(TGT)
Upper
Target (UTGT)
Upper
Spec Limit (USL)
|
Unit
of Measure (UoM)
Report
to Nearest (RTN)
Report
Type (RT)
Action
(AC)
|
Release
Criteria
|
Criticality
(CR)
Basis
(BA)
|
Test
Group (TG)
Application
(AP)
|
|
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REFERENCES
|
GCAS
Code
|
SAP
Description
|
Type
|
|
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Approved
Supplier List
|
|
|
GCAS
Code
|
SAP
Description
|
|
***
|
***
|
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
CSS
APPROVED Effective Date 3Apr2008 GMT - Printed 03Apr2008 Page 4of
4
“***”
DENOTES INFORMATION OMITTED
PURSUANT TO REQUEST FOR CONFIDENTIAL TREATMENT.
EXHIBIT
1
Procter
& Xxxxxx Fabric & Home Care
|
Supersedes: Issue 1
Date: 4 May
2006
|
General
& Quality Assurance
Information
|
Issue: 2
Page: 1 of
1
|
To
Be Read In Conjunction With Structured Raw Material Specifications
1. GENERAL:
|
Human
and Environmental Safety Considerations, Regulated Products Statements
& other considerations of supply:
It
is Procter & Gamble’s intent and responsibility to provide its
customers with products which perform as expected, and which are safe for
humans and are also safe in the environment. To ensure that
these obligations are properly discharged, there are certain procedures
with regard to raw materials which must be followed. These
procedures are to permit Procter & Xxxxxx Current Business Support,
prior to shipment, to make a determination whether any process
modifications or questionable material quality will have any negative
effect on Procter & Xxxxxx processes, finished products, the human and
environmental safety of products; as well as to add to our basic safety
information.
|
| * |
The
Supplier shall notify P&G prior to making any significant changes to
the material defined in this RMS. ‘Significant’ changes mean
changes in the production process, raw materials, feed stocks, or
equipment having affect to the product specification, or otherwise
affecting the material as supplied, as described in the ‘Chemical
Description’ in this specification, as well as changes in the production
location(s) or packaging involved, and shall obtain P&G’s agreement
that such changes do not render the material supplied hereunder unsuitable
for P&G’s use prior to instituting such changes. Such
v2agreement from P&G will not be unreasonably
withheld.
|
|
|
*
|
The
Supplier acknowledges the P&G will, from time to time, require access
to results of studies and tests conducted by the Supplier, or for the
Supplier, concerning human and environmental safety of products supplier
to P&G b y the Supplier. The Supplier is prepared to
provide access to P&G to such results of studies and tests upon
request of P&G, provided that P&G specifies the purpose for which
P&G requires such results and uses such information strictly for the
purpose specified. The form (e.g. letter of access or
disclosure of results), the extent (e.g. only summary of results or study
itself) and the conditions (e.g. secrecy agreement, license fee) upon
which such access will be provided to P&G will be determined upon a
case-by-case basis. The Supplier will not be required to
provide P&G with proprietary information developed by or for third
parties.
|
|
|
*
|
Material Safety Data
Sheets: It is the supplier’s responsibility to notify the
Procter and Xxxxxx Company of information pertinent to the industrial
health and safety aspects of the
chemical.
|
|
|
The
supplier shall provide a current MSDS to each destination to which the
chemical has been shipped. Suppliers shall provide updated MSDS
sheets, as they become available, to each shipment
destination.
|
|
|
Directing Attention to
Significant Changes: Suppliers of chemicals and raw
materials shall specifically notify P&G of significant changes in
Material Safety Data Sheets (MSDS). The identification of
changes to MSDS shall be effected by the provision by the Supplier to
P&G of an updated MSDS as they become available to each shipment
destination that received the material within the preceding twelve
months. The changes will be highlighted (e.g. by vertical lines
at the margin of the sheet) to draw attention to the significant change
relative to prior versions of the
MSDS.
|
|
|
Significant
Change: A change in MSDS information which results in
the establishment of a revised exposure limit for an existing route of
exposure, in the establishment of a new exposure limit for an additional
route of exposure, or a change in the DOT shipping/environmental hazard
classifications is considered to be significant. Additionally,
any change in the MSDS resulting from new test data, from regulatory
agency direction, or from a change in the specified personal protective
equipment will be considered
significant.
|
|
|
Mailing
Address:
|
In
addition to distribution of MSD Sheets to the locations to which materials
have been shipped, one additional copy shall be sent to: Global
F&HC R&D HS&E Leader, P&G, F&HCIC, 0000 Xxxxxx Xxxxx
Xxxxxx, Xxx 000, Xxxxxxxxxx, Xxxx
00000
|
|
|
Identifications of
Shipping Papers with Raw Material Specification
Number
|
|
|
To
aid in identification and preventing misuse of raw materials, the
suppliers are required to include the “RMS No.” on each shipper’s invoice,
and shipper’s analysis report.
|
2. QUALITY
ASSURANCE:
|
|
(i)
|
Suppliers
are required to provide data via a Certificate of
Analysis.
|
|
|
(ii)
|
Certificate
of Analysis (COA)
|
|
|
In
order to provide reassurance on quality, suppliers are required to provide
each P&G receiving plant with a COA which covers those Items listed
below, along with or ahead of each
delivery.
|
|
|
The
COA/shipping documents should contain the following information, items
marked * are mandatory on the COA, omission may result in P&G
receiving sites rejecting
deliveries:
|
| Supplier information | Product information | Analytical Results |
|
›
›
›
|
Name
& Address of Supplier
Name
& Address of Manufacturer (if different to
Supplier)
Contact
Name, Position & Telephone/FAX No. to be used in case of
questions.
|
*
›
*
*
›
|
P&G
RMS No.
P&G
Order No.
Supplier’s
product Trade Name or chemical name
Supplier’s
Batch/Lot No. or other unique
identification.
For
bulk deliveries (optional) - Tank car identity /Name of Ship or Vessel
& Date loaded.
|
*
*
|
Target
value/limits/units as specified on this
RMS.
Analytical
Result in the same units
|
|
Action
Required
|
Old
Designation
|
Description
|
Frequency of
reporting
|
|
|
REPORT
COA
|
CERTIFIABLE
|
Items
to be included on all certificates of analysis, with or before every
delivery
|
Every
Batch/Delivery as agreed
|
|
|
CONTROL
|
CHARACTERISTICS
NON-CERTIFIABLE
|
Not
required on certificate of analysis; to be checked on
receipt.
Items
to be confirmed as a condition of technical approval & thereafter
measured at an agreed frequency. Results to be reported to
P&G if requested &/or if results are obtained which are outside
the specified limit(s)
|
At
an agreed frequency
|
|
|
REFERENCE
|
NON-REPORTABLE
|
Reference
items which must comply but are not required to be
reported
|
Never
|
|
|
Unless
otherwise stated in the RMS, the specification targets &/or limits are
based on single results (i.e. no averaging) and must be reported as
such.
|
|
|
Where
it is necessary to use composited samples to ensure representative
results, the sampling plan must be agreed with P&G and the
specification limits will reflect
this.
|
|
|
When
average results are reported, release criteria will be based on
statistical analysis and quoted on the RMS &
COA.
|
|
|
Suppliers
must not use a method other than that defined on this RMS without
agreement from the P&G Material & Process Optimization
group. Agreement will be based on the supplier being able to
demonstrate equivalence, this agreement will be documented in the supplier
agreement letter.
|
|
|
In
the event of differences between Supplier and P&G data, the decision
to accept or reject will be based on the reference method shown on this
RMS.
|
|
Originator: Xxx
Xxxx Location:
NTC
Document
code 95491697
|
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
CSS
APPROVED Effective Date 20Jun2006 GMT - Printed 10Mar2008 Page 1 of
1
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
|
NOBS
SAMPLING (2)
|
Page
1 of 2
|
EXHIBIT
1
Xxxx,
Xxxx
|
From:
|
Xxxxxxxxx,
Xxxxx ***
|
|
Sent:
|
Wednesday,
April 30, 2008 7:30 PM
|
|
To:
|
Xxxx,
Xxxx
|
|
Subject:
|
FW:
NOBS SAMPLING (2)
|
Xxxx,
Good
news, here is the concurrence from Xxxx re. the NOBS sampling plan you shared
earlier this month.
We are
good to proceed with signing the contract however if you give me a few more
days, I would like to (finally) get the names of the P&G signatories added
to the contract text, so they have to just sign and date.
Let me
know if this will work for you. I will be connecting to e-mail
periodically over the first week that I am out so we can still keep in touch
until you send your signed contract copies to Xxxxxx’x attention.
Regards,
… Vilas
|
From:
|
Xxxx,
Xxxx
|
|
Sent:
|
Wednesday,
April 30, 2008 10:07 AM
|
|
To:
|
Xxxxxxxxx,
Xxxxx
|
|
Subject:
|
RE:
NOBS SAMPLING (2)
|
Vilas,
***
I concur
with the testing protocol as used by Future Fuels.
Xxxx
Xxxx ***
|
From:
|
Xxxxxxxxx,
Xxxxx
|
|
Sent:
|
Wednesday,
April 16, 2008 4:09 PM
|
|
To:
|
Xxxx,
Xxxx
|
|
Cc:
|
Xxxxxx,
Xxx; Xxxxxxxx, Xxx
|
|
Subject:
|
FW:
NOBS SAMPLING (2)
|
Xxxx,
Can you
please review the attached NOBS sampling procedure historically used by
FutureFuel/Eastman and let
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
5/9/2008
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
|
NOBS
SAMPLING (2)
|
Page
2 of 2
|
EXHIBIT
1
me know
if this meets the intent of the directions we provide in the RMS boilerplate
which is now part of the new commercial contract:
Regards,
… Vilas
|
From:
|
Xxxx,
Xxxx ***
|
|
Sent:
|
Wednesday,
April 16, 2008 3:34 PM
|
|
To:
|
Xxxxxxxxx,
Xxxxx
|
|
Subject:
|
NOBS
SAMPLING (2)
|
<<NOBS
SAMPLING (2).doc>>
Vilas,
this is the sampling procedure that we have been using since
2003. Xxxxxxx Xxxxxxx our QC manager and Xxxxx are confident that we
have discussed this with P&G but we cannot find a confirmative acceptance or
letter of agreement from you. The good news is that the process has
worked well and we are confident based on years of history that it accurately
reflects the quality of product which we ship. As long as you are
okay with this the RMS stipulates that we can sample in another fashion as long
as we have agreement with you. As we discussed, I did not want to
sign something that was not reflective of what we are doing. Please
let me know, if you need anything additional from me and how you want to
proceed. I believe that this is the last loose end for the
contract. I am in Batesville this week at ***. Take
care.
Xxxx
** This
message, including attachments, is from FutureFuel Chemical
Company. This message contains information that may be confidential
and/or contain proprietary information. If you are not the intended
recipient, promptly deleted this message and notify the sender of the delivery
error by return e-mail or call us at 000-000-0000. You may not
forward, print, copy, distribute, or use the information in this message if you
are not the intended recipient.
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
5/9/2008
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
Exhibit
2
DESCRIPTION
OF NOBS QUARTERLY PRICE CALCULATION
|
Section
|
Item
|
Description
|
|
Raw
Material
|
***
|
***
|
|
***
|
***
|
|
|
***
|
***
|
|
|
Labor
|
***
|
***
|
|
***
|
***
|
|
|
***
|
***
|
|
|
***
|
***
|
|
|
Energy
|
***
|
***
|
|
***
|
***
|
|
|
***
|
***
|
|
|
***
|
***
|
|
|
Conversion
|
***
|
***
|
|
***
|
***
|
|
|
***
|
***
|
|
|
***
|
***
|
|
|
***
|
***
|
|
|
***
|
***
|
***
|
|
***
|
***
|
|
|
***
|
***
|
***
DESCRIPTION
OF NOBS QUARTERLY VOLUME RECONCILIATION
|
Item
|
Description
|
|
***
|
***
|
|
***
|
***
|
|
***
|
***
|
|
***
|
***
|
|
***
|
***
|
|
***
|
***
|
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
| P&G Contract Number 16371 |
Exhibit
2 - Page 1 of
4
|
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
Exhibit
2
NOBS
PRICE CURVE
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If
Volume Equal To or
Greater
Than
million
Lbs / Year on
100%
Active Basis
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Conversion,
$/active
lb
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“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
| P&G Contract Number 16371 |
Page
2 of 4
|
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
Exhibit
2
NOBS
QUARTERLY PRICE CALCULATION
|
For
Illustration
Purposes
Only
|
||||||
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Q2
2008
|
||||||
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RAW
MATERIALS
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||||||
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Usage
Factor
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Average
Price
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$
Impact
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||||
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***
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***
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***
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***
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***
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***
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***
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***
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***
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***
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LABOR
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||||||
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Beginning
Value
|
Multiplier
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Index
Value
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$
Impact
|
|||
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***
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***
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***
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***
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ENERGY
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||||||
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Beginning
Value
|
Multiplier
|
Index
Value
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$
Impact
|
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***
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***
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***
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***
|
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CONVERSION
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||||||
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Projected
Volume
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$
Impact
|
|||||
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***
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***
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EX-WORKS
PRICE PER LB, 100% ACTIVE BASIS
|
||||||
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Price
per
lb
|
||||||
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***
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||||||
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EX-WORKS
PRICE PER KG, CONVERTED TO 81% ACTIVE STOCK SHIPMENTS
|
||||||
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Price
per
kg
|
||||||
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Railcar
|
***
|
|||||
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Supersacks
(includes supersacking fee of *** per kg)
|
***
|
|||||
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Drums
(includes drumming fee of *** per kg)
|
***
|
|||||
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
| P&G Contract Number 16371 |
Page
3 of 4
|
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
Exhibit
2
NOBS
QUARTERLY VOLUME RECONCILIATION
|
For
Illustration
Purposes
Only
|
||
|
Q1
2008
|
Q2
2008
|
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Projected
Volume
|
***
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***
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Conversion
$ Impact
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***
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***
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Actual
Volume
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***
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Recalculated
$ Impact
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***
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Difference
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***
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Reconciliation
Value
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***
|
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
| P&G Contract Number 16371 |
Page 4 of 4
|
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
EXHIBIT
3
Nonanoic
Acid Specification
(Pelargonic
Acid)
***
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
EXHIBIT
4
PRICE
RECONCILIATION PROCEDURES
|
1.
|
The
PRICE of GOODS will be determined via a quarterly teleconference or
personal meeting between BUYER and SELLER, at least two (2) working days
prior to end of the current calendar quarter, or otherwise as agreed by
the PARTIES.
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2.
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Since
the PRICE calculated ahead of each calendar quarter is dependent on
BUYER's forecasted volume, BUYER and SELLER shall re-calculate the PRICE
at the end of the said quarter based on actual quantity of GOODS (on 100%
active basis) shipped to BUYER.
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3.
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BUYER
and SELLER will calculate the credit or debit transaction needed between
the PARTIES to settle the difference between invoice payments for
said quarter made on the basis of the forecasted PRICE and the PRICE based
on actual quantity shipped as defined in Exhibit 2, Pages 1 and
4.
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4.
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BUYER
and SELLER agree that any errors found to have been made for any PRICE
calculations during the TERM of this AGREEMENT will be resolved as
promptly as possible.
|
“***”
DENOTES INFORMATION OMITTED PURSUANT TO REQUEST FOR CONFIDENTIAL
TREATMENT.
