Exhibit 10.32
The omitted portions indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 24b-2, promulgated under the Securities Exchange Act of
1934, as amended.
FUMED ALUMINA SUPPLY AGREEMENT
This Fumed Alumina Supply Agreement ("Agreement") is made and
is effective as of this twelfth (12th) day of December, 2001 (the "Effective
Date") by and between Cabot Corporation, a Delaware corporation ("Cabot") and
Cabot Microelectronics Corporation, a Delaware corporation ("CMC"). Cabot and
CMC hereinafter are each sometimes referred to individually as a "Party" and
collectively as the "Parties." The Parties agree that except as otherwise
explicitly stated herein, nothing in this Agreement amends or modifies, or is
intended to amend or modify, any of the terms or conditions of, or the rights,
duties or obligations of either of the Parties under, that certain Fumed Metal
Oxide Supply Agreement by and between the Parties executed January 20, 2000
("FMO Agreement").
RECITALS
WHEREAS, CMC is a producer, manufacturer and supplier of slurries
("Slurries") used in chemical mechanical polishing, a polishing process used in
the manufacturing of integrated circuit and other devices, and possesses certain
proprietary technology for the production of such Slurries;
WHEREAS, fumed alumina is a chemical used in the production of
Slurries, and CMC desires to have Cabot provide CMC certain fumed alumina and
Cabot desires to provide certain fumed alumina to CMC;
WHEREAS, Cabot is a producer, manufacturer and supplier of fumed metal
oxides, including without limitation fumed alumina, and possesses certain
proprietary technology for the production of such fumed metal oxides;
WHEREAS, pursuant to the FMO Agreement CMC currently purchases from
Cabot fumed alumina produced at Cabot's pilot plant in Tuscola, Illinois, USA
(the "Tuscola Pilot Plant"), which CMC uses in the production of Slurries; and
WHEREAS, Cabot has constructed, and owns, and will operate and maintain
a commercial production unit at its production facilities in Tuscola, Illinois,
USA ("Tuscola Unit C") for the primary purpose of producing fumed alumina to be
sold by Cabot to CMC and purchased by CMC from Cabot subject to the terms of
this Agreement.
NOW THEREFORE, the Parties do hereby agree as follows:
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1. TUSCOLA UNIT C AND TUSCOLA PILOT PLANT
1.1 Tuscola Unit C. (a) Cabot owns and has had designed and
constructed, and shall operate and maintain, Tuscola Unit C which initially has
been designed to produce fumed alumina ("Unit C Fumed Alumina"), all of which so
produced during the Term of this Agreement will be provided by Cabot to, and,
subject to CMC's orders, accepted by CMC for CMC's purchase, except as may be
otherwise provided in this Agreement.
(b) For the purposes of this Agreement, "InSpec Fumed Alumina" shall
mean Unit C Fumed Alumina or Substitute Fumed Alumina (as defined in Section
1.3) that conforms to the specifications set forth in Section 3 and Exhibit A to
this Agreement, and "OQ Fumed Alumina" shall mean all Unit C Fumed Alumina other
than InSpec Fumed Alumina. Before shipment to CMC, Cabot agrees to identify and
inform CMC of all Unit C Fumed Alumina that Cabot has then determined as OQ
Fumed Alumina. For purposes of this Agreement, "Unit C Total Annual Design
Amount" shall mean [] lbs (plus the total annual design amount of any Unit C
Capacity Expansion as provided in 1.1(e) below other than a Unit C Capacity
Expansion for Cabot's use as provided in clause (iii) of such section). For
purposes of this Agreement, "Unit C Maximum Capacity Rate" shall mean [] lbs per
month plus the maximum capacity rate of any Unit C Capacity Expansion as
provided in 1.1(e) below other than a Unit C Capacity Expansion for Cabot's use
as provided in clause (iii) of such section.
(c) For the purposes of this Agreement, "Tuscola Unit C Production
Capacity" shall mean (i) for the period ending September 30, 2002, [] lbs per
year of InSpec Fumed Alumina (plus [] percent ([]%) of the total annual design
amount of any Unit C Capacity Expansion as provided in 1.1(e) below other than a
Unit C Capacity Expansion for Cabot's use as provided in clause (iii) of such
section) and (ii) for the period beginning October 1, 2002, [] lbs per year of
InSpec Fumed Alumina (plus [] percent ([]%) of the total annual design amount of
any Unit C Capacity Expansion as provided in 1.1(e) below other than a Unit C
Capacity Expansion for Cabot's use as provided in clause (iii) of such section),
all of which so produced during the Term of this Agreement will be provided by
Cabot to, and, subject to CMC's orders, accepted by, CMC for CMC's purchase,
except as may be otherwise provided in this Agreement.
(d) During the term of this Agreement, Cabot shall use all commercially
reasonable efforts to produce InSpec Fumed Alumina in an amount no less than
Tuscola Unit C Production Capacity. Notwithstanding anything to the contrary in
this Agreement, Cabot agrees to use all commercially reasonable efforts so that
no less than [] percent ([]%) of the Unit C Fumed Alumina that it manufactures
in Tuscola Unit C will be InSpec Fumed Alumina, and no more than [] percent
([]%) of the Unit C Fumed Alumina that it manufactures in Tuscola Unit C will be
OQ Fumed Alumina. If, in any given calendar month of the Term of this Agreement,
less than [] percent ([]%) of the Unit C Fumed Alumina produced by Tuscola Unit
C is InSpec Fumed Alumina, and such is not the direct result of Force Majeure
events as described in Section 8.10 of this Agreement, or directly caused by the
CMC [] (as defined in Section 1.9), as independently verified by CMC or Cabot
and mutually agreed upon by the Parties, Cabot shall use all commercially
reasonable efforts to return and maintain the quality of Tuscola Unit C's total
monthly production of Unit C Fumed Alumina to no less than [] percent ([]%) of
InSpec Fumed Alumina.
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(e) In the event that, because of a request from CMC or otherwise,
either Party desires to expand the production capacity of Tuscola Unit C
(through debottlenecking, load rate increases, or otherwise) during the term of
this Agreement, and upon analysis, such expansion is both possible and
commercially reasonable (a "Unit C Capacity Expansion"), Cabot shall promptly
notify CMC of Cabot's analysis and initial estimate of costs and schedule of
such a Unit C Capacity Expansion, and CMC shall have the right to the additional
Unit C Fumed Alumina resulting from such Unit C Capacity Expansion during the
Term of this Agreement, or as otherwise agreed to by the parties. For any such
Unit C Capacity Expansion requested by CMC, CMC shall thereafter notify Cabot,
within thirty (30) days of its receipt of such Cabot notice, of CMC's decision,
at its sole discretion, to proceed or not to proceed with such a Unit C Capacity
Expansion, and if CMC decides to proceed with such Unit C Capacity Expansion,
its agreement to include the additional Unit C Fumed Alumina resulting from such
Unit C Capacity Expansion under the terms of this Agreement, and its agreement
to compensate Cabot for the capital and related costs required to complete the
Unit C Capacity Expansion as provided in Schedule 1, Paragraph II.3. For any
such Unit C Capacity Expansion not requested by CMC, CMC shall thereafter notify
Cabot, within thirty (30) days of its receipt of such Cabot notice, of CMC's
election, at its sole discretion, of one of the following: (i) CMC's decision
not to consent to such a Unit C Capacity Expansion; (ii) CMC's consent to
proceed with such Capacity Expansion and its agreement to include the additional
Unit C Fumed Alumina resulting from such Unit C Capacity Expansion under the
terms of this Agreement and its agreement to compensate Cabot for the capital
and related costs required to complete the Unit C Capacity Expansion as provided
in Schedule 1, Paragraph II.3; or (iii) CMC's consent to such Unit C Capacity
Expansion for Cabot's use, provided that Cabot does not use any additional Unit
C Fumed Alumina resulting from the Unit C Capacity Expansion for a Competitive
Use (as defined in this Agreement) or sell any such additional Unit C Fumed
Alumina to any Competitor (as defined in this Agreement) as provided in Section
1.6, and agreement not to include the additional Unit C Fumed Alumina resulting
from such a Unit C Capacity Expansion under the terms of this Agreement (in
which event CMC shall not be responsible to compensate Cabot for the capital
required to complete such expansion).
1.2 Source. Except as otherwise agreed to by the parties or as provided
in Sections 1.3 and 1.4, all Fumed Alumina to be provided to CMC by Cabot and
purchased by CMC from Cabot under this Agreement shall be produced by Cabot and
only at Tuscola Unit C.
1.3 Tuscola Pilot Plant. Notwithstanding Section 1.2, if and only if in
any given calendar month during the Term of this Agreement but prior to July 1,
2005: (i) Cabot at Tuscola Unit C is unable to meet CMC's supply requirements
for Fumed Alumina (as defined in Section 1.7) for such month or (ii) CMC cannot
meet its customers' performance requirements for Fumed Alumina using Unit C
Fumed Alumina, then to the extent (and only to the extent) of any FA Shortfall
(as defined in Section 1.4), Fumed Alumina to be provided to CMC under this
Agreement shall be produced by Cabot at the Tuscola Pilot Plant (the "Substitute
Fumed Alumina") and the terms of this Agreement shall govern the purchase and
sale of any such Substitute Fumed Alumina, including without limitation the
provisions of Section 5 and Schedule 1, Paragraph I.2. For purposes of the
foregoing sentence, unless expressly waived in writing by CMC, only Substitute
Fumed Alumina that is InSpec Fumed Alumina shall be be used to cover any FA
Shortfall. For purposes of Section 1.4, unless expressly waived in writing by
CABOT MICROELECTRONICS CORPORATION - CABOT CORPORATION CONFIDENTIAL
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CMC, only Substitute Fumed Alumina that is InSpec Fumed Alumina shall be used in
calculating the Total FA Shortfall and the Total Annual FA Shortfall (as each is
defined in Section 1.4). Except to the extent of any Excess OQ Alumina as
provided in Section 3.3(b), the price of Substitute Fumed Alumina produced at
the Tuscola Pilot Plant and supplied by Cabot to CMC to cover any FA Shortfall
shall be determined by using the Variable Costs Rate (as set forth in Schedule
1, Paragraph I.2). The price of Fumed Alumina produced at the Tuscola Pilot
Plant and supplied by Cabot to CMC, prior to July 1, 2005, other than Substitute
Fumed Alumina, shall be the then prevailing price of Fumed Alumina from the
Tuscola Pilot Plant under the FMO Agreement as then in effect at the time of
sale and shall be provided under the terms of the FMO Agreement. Substitute
Fumed Alumina supplied pursuant to this Agreement shall be limited only to the
amount of Fumed Alumina reasonably needed by CMC to fill such customers' orders
or supply requirements and all other Fumed Alumina shall be produced by Tuscola
Unit C. For the purposes of this Agreement, all Unit C Fumed Alumina produced at
Tuscola Unit C as well as any Substitute Fumed Alumina produced at the Tuscola
Pilot Plant pursuant to this Section 1.3 and this Agreement shall be included
within the definition of "Fumed Alumina". If, by June 30, 2005, Cabot and CMC do
not have an agreement for supply of Fumed Alumina from a Cabot unit other than
Tuscola Unit C or the Tuscola Pilot Plant, or CMC is unable to qualify with its
customers Fumed Alumina from a Cabot unit other than Tuscola Unit C or the
Tuscola Pilot Plant, then subsequent to June 30, 2005 through the termination
date of this Agreement, to the extent (and only to the extent) of any FA
Shortfall, Cabot will supply to CMC Substitute Fumed Alumina under the terms and
conditions of this Agreement, including the Variable Cost Rate price referenced
above, subject to the following conditions: CMC will reimburse Cabot for
expenditures for only the actual replacement of process equipment and physical
infrastructure in the Tuscola Pilot Plant that is not shared with other Cabot
units ("Tuscola Pilot Plant Fumed Alumina Process Equipment"), provided that
such Tuscola Pilot Plant Fumed Alumina Process Equipment is purchased between
July 1, 2005 and the termination date of this Agreement, and Fumed Alumina is
not being produced by Cabot in the Tuscola Pilot Plant for other Cabot customers
at the time of Cabot's expenditure for Tuscola Pilot Plant Fumed Alumina Process
Equipment; provided however, that (i) in the event Cabot produces Fumed Alumina
in the Tuscola Pilot Plant for other Cabot customers or Cabot's internal use
within the twelve (12) months following such Cabot expenditure, Cabot shall
reimburse CMC for CMC's reimbursement under this Section, and, (ii) CMC's
obligation to reimburse Cabot for expenditures for only the actual replacement
of Tuscola Pilot Plant Fumed Alumina Process Equipment between July 1, 2005 and
the termination date of this Agreement will not exceed the expenditures made by
Cabot for only the actual replacement of Tuscola Pilot Plant Fumed Alumina
Process Equipment between June 1, 2000 and June 30, 2005.
1.4 Third-Party Manufacture; Certain Shortfalls. (a) Notwithstanding
Section 1.2, Cabot shall take all commercially reasonable efforts, except as
limited below, to assist CMC in securing supply of InSpec Fumed Alumina from a
third party (subject in all events to Cabot's intellectual property rights) if
and only if: (i) Tuscola Unit C and the Tuscola Pilot Plant are both unable
and/or have failed to meet CMC's supply requirements of Unit C Fumed Alumina for
[] (except to the extent directly caused by the CMC [] (as defined in Section
1.9), as independently verified by CMC or Cabot and mutually agreed upon by the
Parties); or (ii) in the case of an event described in Section 8.10 (entitled
"Force Majeure") and as a result of such Force Majeure events Cabot will not
likely be able to meet CMC's supply requirements for each of the next
CABOT MICROELECTRONICS CORPORATION - CABOT CORPORATION CONFIDENTIAL
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three (3) consecutive calendar months; provided, however, that for both clauses
(i) and (ii), in the case of Tuscola Unit C, such requirements for each such
months did not or do not exceed [] of the Tuscola Unit C Production Capacity
and, in the case of the Tuscola Pilot Plant, such requirements do not exceed
Cabot's Maximum Supply Obligation (as defined in the FMO Agreement). In any such
circumstances, Cabot shall not be responsible or required to take any such
effort as to amounts needed by CMC in excess of the Total FA Shortfall (as
defined below). For purposes of this Agreement the "FA Shortfall" for a calendar
month shall equal the difference between (i) the lesser of (A) [] ([]) of
Tuscola Unit C Production Capacity and (B) the amount of Unit C Fumed Alumina
ordered by CMC for such calendar month minus (ii) the amount of InSpec Fumed
Alumina available from Tuscola Unit C (if >[]).
(b) In the event CMC experiences a Total FA Shortfall (as defined
below) for [] (but not for reasons of Force Majeure events or because of CMC [],
as independently verified by CMC or Cabot and mutually agreed upon by the
Parties), CMC's monthly payments for Fixed Costs and quarterly payments for
Initial Capital Costs, Replacement Capital Costs and Additional Capital Costs
("Quarterly Payments") shall be pro-rated for the Total FA Shortfall as follows:
Monthly Fixed Costs payments during the Total FA Shortfall shall equal []:
where the Total FA Shortfall for any calendar month is the difference
between the lesser of ([] of the Tuscola Unit C Production Capacity or the
amount of Unit C Fumed Alumina ordered by CMC for said month) and the
InSpec Fumed Alumina available from Tuscola Unit C (plus any Substitute
Fumed Alumina supplied by Cabot) for said month (provided that the Total FA
Shortfall cannot be less than []).
Quarterly Payments during the FA Shortfall shall equal []:
where the Total FA Shortfall for any calendar quarter is the difference
between the lesser of ([] of the Tuscola Unit C Production Capacity or the
amount of Unit C Fumed Alumina ordered by CMC for said quarter) and InSpec
Fumed Alumina available from Tuscola Unit C (plus any Substitute Fumed
Alumina supplied by Cabot) for said quarter (provided that the Total FA
Shortfall cannot be less than []).
(c) For purposes of this Section 1.4(c) and Schedule 1, Paragraph IV, a
"Contract Year" shall be defined as October 1 through the following September 30
of the Term so that the initial Contract Year shall be the 12 month period
ending September 30, 2002. For purposes of this Section 1.4(c), the "Total
Annual FA Shortfall" for a particular Contract Year shall equal (x) the
difference between the lesser of (the Tuscola Unit C Production Capacity for
such Contract Year or the amount of Unit C Fumed Alumina ordered by CMC for said
Contract Year) and the InSpec Fumed Alumina available from Tuscola Unit C (plus
any Substitute Fumed Alumina supplied by Cabot) for said Contract Year plus (y)
any Total FA Shortfall during such Contract Year for which a pro-ration has been
or is being made under Section 1.4(b) above (provided that the Total Annual FA
Shortfall cannot be less than []). For purposes of determining the Total Annual
FA Shortfall for the initial Contract Year (the 12 months ended September 30,
2002), (i) the amount of Unit C Fumed Alumina (plus any Substitute Fumed
Alumina) accepted by CMC from Cabot between October 1, 2001 and the Effective
Date shall be deemed Unit C Fumed
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Alumina ordered by CMC in the initial Contract Year and shall be deemed InSpec
Fumed Alumina available from Tuscola Unit C for said initial Contract Year. In
the event there exists a Total Annual FA Shortfall at the end of any full
Contract Year (but not for reasons of Force Majeure events, or because of CMC []
as independently verified by CMC or Cabot and mutually agreed upon by the
Parties), Cabot shall, subject to the limitations set forth herein, [], credit
CMC's account hereunder within thirty (30) days of the end of such Contract Year
an amount determined as follows:
the lesser of []
Where: []
----------------------
# but not for reasons of Force Majeure events nor because of CMC [] (as
independently verified by CMC or Cabot and mutually agreed upon by
the Parties).
1.5 Notice. Cabot agrees to notify CMC, in writing, within five
business days of Cabot becoming aware of any actual or likely inability to
supply, potential shortages or interruptions of the supply of Unit C Fumed
Alumina to CMC.
1.6 Production and Permitted Production from Tuscola Unit C. (a) Except
as provided in this Section 1.6 (that is, during Permitted Production), during
the Term of this Agreement, all Unit C Fumed Alumina shall be supplied to CMC.
This shall include all Unit C Fumed Alumina produced as a result of capacity
expansions to Tuscola Unit C as provided in Section 1.1(e).
(b) Notwithstanding the foregoing, if the Parties agree in writing,
Cabot may produce Unit C Fumed Alumina or other fumed alumina at Tuscola Unit C,
or any Cabot product based on Fumed Alumina and produced there, (collectively or
each, "Non-CMC Unit C Fumed Alumina") which need not be made available by Cabot
to CMC, provided it is for: (i) the internal use of such Non-CMC Unit C Fumed
Alumina by Cabot or its controlled subsidiaries, provided such internal use does
not constitute a Competitive Use; or (ii) for sale by Cabot to a third party,
provided that Cabot knows (or should know) that the ultimate use is not a
Competitive Use and provided Cabot has complied with Section 1.6(e) below (as to
Competitors) (each a "Permitted Production"). As used herein, (x) "Competitor"
shall mean any party that produces any product that competes with any chemical
mechanical polishing consumable product produced by CMC during the term of this
Agreement and that it is listed on Exhibit E attached, which list may be updated
periodically throughout the Term of this Agreement by CMC by written notice to
Cabot and (y) "Competitive Use" shall mean the production of any product that
competes with any chemical mechanical polishing consumable product produced by
CMC during the Term of this Agreement. Cabot also agrees that it will not use
Fumed Alumina produced at the Tuscola Pilot Plant for a Competitive Use while
Cabot is obligated to provide to CMC Fumed Alumina produced at the Tuscola Pilot
Plant (i) under this Agreement or (ii) under the FMO Agreement, except
subsequent to a change in control of CMC.
(c) In the event that CMC or Cabot becomes aware of any third party
using Non-CMC Unit C Fumed Alumina for any Competitive Use or any third party
reselling any Non-
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CMC Unit C Fumed Alumina to a Competitor, such Party shall notify the other
Party immediately of such use or resale. In such an event, Cabot shall not
continue to sell or deliver any Non-CMC Unit C Fumed Alumina to such third
party.
(d) CMC will not be required to purchase from Cabot, and Cabot will not
be required to sell to CMC, any Non-CMC Unit C Fumed Alumina produced during a
Permitted Production (including any Non-CMC Unit C Fumed Alumina produced during
the transition between the production of CMC Unit C Fumed Alumina and Non-CMC
Fumed Alumina) and Non-CMC Unit C Fumed Alumina produced during a Permitted
Production will be stored at Cabot's facility, and CMC will not be responsible
for any Variable Costs for any Permitted Production. Cabot shall be responsible
for all Variable Costs (as defined in Schedule 1 attached hereto and made a part
hereof) for each Permitted Production. As reimbursement to CMC for Fixed Costs
(as defined in Schedule I) for each Permitted Production, Cabot will pay to CMC,
[] percent ([]%) of the Fixed Costs for Tuscola Unit C, calculated during the
period of such Permitted Production. As reimbursement for Capital Costs (as
defined in Schedule 1) for each Permitted Production, Cabot will pay to CMC []
percent ([]%) of the Initial Capital Costs calculated during the period of such
Permitted Production.
(e) Cabot may sell Non-CMC Unit C Fumed Alumina to the third parties
listed in Exhibit E, which list may be updated periodically throughout the Term
of this Agreement by CMC by written notice to Cabot, to this Agreement only for
use by the divisions of such third parties listed in Exhibit E only as long as
Cabot has verified (to be evidenced by Cabot's receipt of a representation
letter or similar writing to such effect, a copy of which Cabot will provide
contemporaneously to CMC) that such Non-CMC Unit C Fumed Alumina will not be
used for any Competitive Use.
1.7 During the Term of this Agreement, unless stated otherwise in this
Agreement, CMC shall be obligated to purchase from Cabot all fumed alumina of
the type set forth on Exhibit A hereto ("Fumed Alumina") necessary to produce
the products produced by CMC on or before the Effective Date of this Agreement,
but only up to the total of [] as of the Effective Date of this Agreement.
Notwithstanding this obligation, CMC shall have the right to obtain Fumed
Alumina from any third party in the event that Cabot fails to or is unwilling to
supply CMC with its requirements for Fumed Alumina for any reason determined in
good faith by CMC (including quality, whether or not with respect to InSpec
Fumed Alumina, supply constraints, or a request by CMC to change a specification
for Fumed Alumina that Cabot is unable or unwilling to meet), subject to CMC's
obligations under Section 8.12 (entitled "Confidentiality") and to all and any
intellectual property rights Cabot may have. In addition, CMC shall not be
obligated to purchase from Cabot any Fumed Alumina with respect to products
developed and produced by CMC after the Effective Date of this Agreement. This
Section 1.7 is the exclusive statement of CMC's obligation in this regard with
respect to Fumed Alumina, whether from Tuscola Unit C or the Tuscola Pilot
Plant, and replaces and governs CMC's obligations under Section 2.5 of the FMO
Agreement to purchase Fumed Alumina from Cabot.
1.8 Resale of Unit C Fumed Alumina. The parties intend and agree that
Unit C Fumed Alumina purchased by CMC under this Agreement is purchased
primarily for the use by CMC and its subsidiaries and affiliates in producing
their products, and CMC does not intend to
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resell Unit C Fumed Alumina or Substitute Fumed Alumina purchased from Cabot
under this Agreement, provided, however, that in the event CMC in good faith
determines that certain Unit C Fumed Alumina or Substitute Fumed Alumina is not
fit for CMC's use, CMC shall have the right to resell such Unit C Fumed Alumina
or Substitute Fumed Alumina, provided that CMC first offers Cabot the option to
purchase such Unit C Fumed Alumina or Substitute Fumed Alumina according to the
following: The purchase price to be paid by Cabot for any such Unit C Fumed
Alumina or Substitute Fumed Alumina purchased by Cabot under this Section 1.8
shall be the sum of: (i) the amount of the Variable Costs (as defined in
Schedule 1, Paragraph I.2) for such Unit C Fumed Alumina or Substitute Fumed
Alumina (determined by the Variable Costs previously paid by CMC to Cabot for
such Unit C Fumed Alumina or Substitute Fumed Alumina); (ii) [] percent ([]%) of
the Fixed Costs (as defined in Schedule 1, Paragraph I.1) for Tuscola Unit C,
for the month in which such Unit C Fumed Alumina or Substitute Fumed Alumina was
produced times (x) the amount in pounds of such Unit C Fumed Alumina or
Substitute Fumed Alumina purchased by Cabot hereunder divided by (y) [] of the
Unit C Total Annual Design Amount unless Cabot supplies less than [] of the
Tuscola Unit C Production Capacity for such month and CMC has ordered more than
[] of the Tuscola Unit C Production Capacity for such month, in which case such
amount will be divided by (z) the lesser of ([] of the Unit C Total Annual
Design Amount or the Unit C Fumed Alumina and Substitute Fumed Alumina supplied
by Cabot during such month); (iii) [] per pound ($[]/lb.) of the amount so
purchased by Cabot (in respect of the Testing Costs described in Schedule 1,
Paragraph I.3) and (iv) [] percent ([]%) of the Initial Capital Costs (as
defined in Schedule 1, Paragraph II.1) for the quarter in which such Unit C
Fumed Alumina or Substitute Fumed Alumina was produced times (x) the amount in
pounds of such Unit C Fumed Alumina or Substitute Fumed Alumina purchased by
Cabot hereunder divided by (y) [] of the Unit C Total Annual Design Amount
unless Cabot supplies less than [] of the Tuscola Unit C Production Capacity for
such quarter and CMC has ordered more than [] of the Tuscola Unit C Production
Capacity for such quarter, in which case such amount will be divided by (z) the
lesser of ([] of the Unit C Total Annual Design Amount or the Unit C Fumed
Alumina and Substitute Fumed Alumina supplied by Cabot during such quarter).
Cabot may use any such Unit C Fumed Alumina or Substitute Fumed Alumina
purchased by Cabot from CMC under this Section 1.8, provided Cabot knows (or
should know) that the ultimate use is not a Competitive Use and provided that
Cabot has complied with Section 1.6 (as to Competitors). Cabot may sell any such
Unit C Fumed Alumina or Substitute Fumed Alumina purchased by Cabot under this
Section 1.8 to any third party, provided Cabot knows (or should know) that the
ultimate use is not a Competitive Use and provided that Cabot has complied with
Section 1.6 (as to Competitor). All such Unit C Fumed Alumina or Substitute
Fumed Alumina resold to Cabot under this Section 1.8 shall be F.O.B. CMC's
primary fumed alumina warehouse. Cabot must exercise such option to purchase
such Unit C Fumed Alumina from CMC pursuant to the terms of this Section 1.8 by
notifying CMC in writing within ten (10) days of being offered the first option
to purchase any such Unit C Fumed Alumina from CMC under this Section 1.8; if
Cabot has not so exercised its option under this Section, then CMC may resell
such Unit C Fumed Alumina or Substitute Fumed Alumina to third parties for
applications other than Inkjet Media Coatings.
1.9 []. In the event CMC desires to purchase from its own source of,
and to provide Cabot with, [] ("CMC []") for use in Tuscola Unit C for the
production of Unit C Fumed Alumina to be purchased by CMC under this Agreement,
the following shall apply: (i) only []
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which meets Cabot's specifications for [] as set forth in Exhibit B to this
Agreement (as amended from time to time by written notice from Cabot and mutual
agreement by CMC) to reflect the specifications Cabot uses for its purchases of
[] for use in Tuscola Unit C (except for that [] used for Permitted Production
by Cabot); (ii) written notice of such intended supply and use is given by CMC
to Cabot not less than ninety (90) days from the estimated date of supply; and
(iii) prior to any use of CMC [] in commercial production, Cabot and CMC shall
have conducted at least one trial of such CMC [] so that it can be qualified as
an appropriate source for the production of Unit C Fumed Alumina.Cabot shall use
such CMC [] so provided for such purpose. Cabot shall not be obligated to pay
CMC for any CMC []. CMC will not be obligated to pay Cabot for any CMC []
supplied by CMC for the manufacture of Unit C Fumed Alumina and costs for such
CMC [], and the costs for Cabot [] for which the CMC [] is being substituted,
will not be included in the Variable Costs for which CMC is responsible under
Schedule 1.
1.10 Operation Date. The first date of Tuscola Unit C's continuous
operation at Tuscola Unit C Production Capacity (defined as one week of
operation during which Tuscola Unit C operates at an annualized production rate
of no less than [] lbs per year of InSpec Fumed Alumina) shall be referred to
herein as the "Operation Date." The Parties both agree that the Operation Date
occurred on September 21, 2001.
1.11 Risk of Loss and Insurance. Cabot is and shall be the sole owner
of Tuscola Unit C and any Tuscola Unit C Capacity Expansions. Risk of damage or
loss for whatever reason for Tuscola Unit C and any Initial Capital Asset,
Replacement Capital Asset or Additional Capital Asset (as each are defined in
Schedule 1, collectively "Capital Assets") shall be borne by Cabot. During the
Term of this Agreement, Cabot shall maintain the following levels of the
following types of insurance:
A. Workers' Compensation and Employers' Liability
1. Coverage "A" - Statutory State of Illinois
2. Coverage "B" - Employers' Liability
Limit $500,000 each person, $1,000,000 each accident
B. Comprehensive General Liability - One or more policies with
aggregate limits of liability of $2,000,000 Combined Single Limit Per
Occurrence.
2. SALE AND PURCHASE
2.1 Sale and Purchase. Pursuant to and subject to the terms and
conditions of this Agreement, Cabot will manufacture, produce, deliver and sell
to CMC such quantities of Unit C Fumed Alumina as CMC may order, and will be
obligated to fill CMC's orders, in accordance with this Agreement. Subject to
and pursuant to the terms and conditions of this Agreement, CMC agrees to
purchase and accept all Unit C Fumed Alumina produced by Cabot pursuant to
orders from CMC under this Agreement. Except as specifically provided hereunder,
or in the case of a Permitted Production, Cabot agrees to manufacture, produce,
deliver and sell Unit C Fumed Alumina only to CMC.
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2.2 Quantity.
(a) Forecasts. In order for Cabot to utilize Tuscola Unit C
efficiently, CMC shall provide to Cabot non-binding forecasts of CMC's projected
volume of needed Unit C Fumed Alumina from Tuscola Unit C, on which Cabot will
base its preparations for the operations of Tuscola Unit C. Such forecasts will
be provided in the manner and form required under the FMO Agreement.
(b) Good Faith. CMC's forecasts under this Agreement shall reflect its
good faith expectations of its requirements of Unit C Fumed Alumina, and the
Unit C Maximum Capacity Rate, and CMC shall act in a commercially reasonable
manner to schedule orders consistent with its forecasts for Unit C Fumed Alumina
and to allow Permitted Production, if possible.
2.3 Orders. Orders for Unit C Fumed Alumina shall be issued by CMC from
time to time, and shall specify the date(s) the Unit C Fumed Alumina is to be
delivered to CMC, which date shall not be less than ten (10) business days prior
to the date the order is received by Cabot, and shall be consistent with the
Tuscola Unit C Production Capacity and the Unit C Maximum Capacity Rate.
2.4 Delivery; Packaging; Title and Risk of Loss.
(a) Cabot will package all Unit C Fumed Alumina and Substitute Fumed
Alumina in accordance with the shipping requirements set forth in Exhibit A to
this Agreement. All Unit C Fumed Alumina and Substitute Fumed Alumina delivered
to CMC shall be F.O.B. Cabot's point of shipment. CMC shall be responsible for
all transportation costs (and all warehousing costs for storage at CMC's
request) and title and risk of loss or damage shall pass to CMC upon delivery to
carrier.
(b) Cabot agrees to take commercially reasonable efforts to deliver
Unit C Fumed Alumina and Substitute Fumed Alumina within mutually agreed upon
tolerances of applicable delivery dates, but shall deliver Unit C Fumed Alumina
and Substitute Fumed Alumina no later than the delivery date requested by CMC on
each order consistent with Section 2.3.
3. TECHNICAL SPECIFICATIONS
3.1 Specifications. Except as otherwise provided in this Agreement,
Cabot shall comply with the manufacturing, packaging, handling and shipping
requirements for Unit C Fumed Alumina and Substitute Fumed Alumina, whether
InSpec Fumed Alumina or OQ Fumed Alumina (with the exception of manufacturing
requirements for OQ Fumed Alumina), as set forth in Exhibit A attached, and that
the InSpec Fumed Alumina it provides will meet the specifications set forth in
Exhibit X. Xxxxx shall provide to CMC all certificates and other documents as
set forth in Exhibit A in a timely manner.
3.2 Testing. Cabot agrees to comply with the sampling and testing
requirements set forth in Exhibit A to this Agreement.
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3.3 Nonconforming Product.
(a) Notice. Upon delivery of each shipment of Unit C Fumed Alumina to
CMC, Cabot must give notice to CMC of any OQ Fumed Alumina delivered in such
shipment.
(b) Replacement. Upon receipt by CMC of a notice of OQ Fumed Alumina
from Cabot, at CMC's request, Cabot shall provide to CMC InSpec Fumed Alumina as
a replacement to the OQ Fumed Alumina in accordance with this Agreement. To the
extent an FA Shortfall is caused by Cabot producing OQ Fumed Alumina in excess
of [] percent ([]%) for calendar months through September 30, 2002 and in excess
of [] ([]%) for calendar months beginning October 1, 2002, of the Unit C Fumed
Alumina that has been manufactured for such period (but not for reasons of Force
Majeure events or because of CMC [], as independently verified by CMC or Cabot
and mutually agreed upon by the Parties), then Cabot will provide CMC with an
amount of Substitute Fumed Alumina equal to the Excess OQ Alumina produced at no
cost to CMC. CMC shall make available to Cabot an equivalent amount of OQ Fumed
Alumina at no cost to Cabot. "Excess OQ Alumina" is defined as (i) the amount of
OQ Fumed Alumina produced during the month (but not for reasons of Force Majeure
events or because of CMC [], as independently verified by CMC or Cabot and
mutually agreed upon by the Parties) minus (ii) (A) [] for calendar month
through September 30, 2002 and [] for calendar months beginning October, 1, 2002
times (B) the lesser of (x) CMC's orders for the month or (y) [] of the Tuscola
Unit C Production Capacity (provided that the amount of Excess OQ Alumina can
not be less than []).
3.4 Material Safety Data Sheets. Cabot agrees to label Unit C Fumed
Alumina as provided by applicable law and to provide CMC with current copies of
Material Safety Data Sheets ("MSDS") for the Unit C Fumed Alumina. CMC agrees to
provide its employees and contractors who store, handle or are exposed to the
Unit C Fumed Alumina with copies and/or access to such MSDS.
4. PRICES AND PAYMENTS
4.1 Price. CMC shall pay to Cabot the quarterly and monthly payments
and fees set forth on Schedule 1, as adjusted from time to time. CMC shall not
owe to Cabot and shall not be responsible for payment of any costs except as
specified in Schedule 1. Other than the amounts specified in Schedule 1, CMC
shall not be obligated to make any payments, expenditures or reimbursements to
Cabot under this Agreement for Unit C Fumed Alumina, other than the amounts
under Section 2.4, 4.4, and 6.1(b).
4.2 Invoicing. Monthly and quarterly invoices from Cabot will be
delivered to CMC no later than 15 days prior to the date that they become due,
and will include the following itemized detail, consistent with those terms
included in Schedule 1:
[]
4.3 Method of Payment. Payments shall be made by CMC to Cabot according
to the schedule below commencing for the calendar month following the month in
which the Operation
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Date occurs (that is, October 2001) and for the quarter-ended for the quarter
following the quarter in which the Operation Date occurs (that is, for the
quarter beginning October 1, 2001). Fixed Costs and Variable Costs shall be
pro-rated for the calendar month in which the Operation Date occurs. Such
payments, as well as any payments Cabot is obligated to make to CMC under this
Agreement, shall be made by check, wire transfer or, in the case of payment by
Cabot, credit in readily available same day or next day funds denominated in
United States dollars. Payments will not be made by CMC to Cabot without receipt
of invoices with the itemized detail required by Section 4.2. If payment is to
be made by wire transfer, the receiving party shall provide the other with wire
transfer instructions.
[]
4.4 Taxes, Charges, & Duties. All applicable sales and other taxes and
other charges such as duties, customs, tariffs, imports and government imposed
surcharges, and freight (if applicable) that are directly attributable to CMC as
a result of the transactions specified under this Agreement shall be for the
account of CMC and shall be stated separately on Cabot's invoices to CMC. CMC
shall not be responsible for payment of any interest or penalties in connection
with said taxes not directly caused by CMC, and CMC has the right, but not the
obligation, to protest the validity or amount of any tax. The foregoing
notwithstanding, CMC shall not be responsible for taxes not directly related to
the transactions specified under this Agreement (including but not limited to
Cabot's income, franchise or property taxes) or other taxes not directly related
to the Unit C Fumed Alumina, unless specified in Schedule 1. CMC shall not be
separately responsible, and Cabot will not separately charge CMC for, taxes and
other charges that are specified as Fixed or other Costs in Schedule 1 for which
CMC is responsible under this Agreement.
5. LIMITED WARRANTIES AND REMEDIES; PATENT INDEMNIFICATION
5.1 Warranties as to Unit C Fumed Alumina. Cabot hereby represents and
warrants to CMC that, when shipped to CMC, the InSpec Fumed Alumina, whether
Unit C Fumed Alumina or Substitute Fumed Alumina, will conform in all respects
to the specifications then in effect and as then set forth in the materials
specified in Exhibit A of this Agreement. Notwithstanding anything to the
contrary, Cabot makes no representation or warranty as to OQ Fumed Alumina,
which is sold "AS IS". CABOT MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY
KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR ANY OTHER MATTER WITH RESPECT TO ANY UNIT C FUMED ALUMINA OR
SUBSTITUTE FUMED ALUMINA, WHETHER USED ALONE OR IN COMBINATION WITH OTHER
SUBSTANCES, EVEN IF THE PURPOSES OR USES OF SUCH UNIT C FUMED ALUMINA OR
SUBSTITUTE FUMED ALUMINA ARE KNOWN BY CABOT. Cabot also represents and warrants
that such Fumed Alumina delivered pursuant to this Agreement is free and clear
of all liens, claims and encumbrances and is conveyed with good title to CMC.
5.2 Remedies. EXCEPT IN RESPECT OF OBLIGATIONS UNDER SECTION 8.12 AND
EXCEPT TO THE EXTENT RESULTING FROM FRAUD, GROSS NEGLIGENCE OR INTENTIONAL
MISCONDUCT, IN NO EVENT SHALL EITHER PARTY BE
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RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR LOSS OF OPPORTUNITIES, ARISING
OUT OF THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
5.3 Patent Infringement. (a) Subject to Section 5.2, Cabot shall
defend, indemnify and hold CMC, its officers, directors, employees, successors
and permitted assigns (collectively, the "CMC Indemnified Parties") harmless
from and against any damages, liabilities, fines, penalties, costs and expenses
(including reasonable attorneys' fees) incurred by the CMC Indemnified Parties
in the defense of any suit or legal proceeding against the CMC Indemnified
Parties, insofar as the same are based on a claim that Unit C Fumed Alumina or
Substitute Fumed Alumina furnished under this Agreement, except as excluded
below, in itself constitutes an infringement of any United States or European
patent, provided that the CMC Indemnified Parties have given Cabot (A) prompt
written notice of all facts which it knows or should know that might be the
basis of such an infringement claim and (B) prompt written notice of any such
infringement claim and the institution of such suit or proceeding, and that the
CMC Indemnified Parties provide Cabot with all necessary authority, information,
and reasonable assistance to enable Cabot to control, settle or defend the same
at Cabot's option. In the event Cabot is so responsible under this Section
5.3(a), the Parties agree that: (1) Cabot and CMC shall work together to discuss
viable and commercially reasonable alternatives for assuring continued supply to
CMC of Unit C Fumed Alumina or Substitute Fumed Alumina; and (2) Cabot and CMC
shall mutually agree, at Cabot's expense, to have Cabot take one or more (in
parallel or sequentially) of the following options: (x) procure for Cabot or
CMC, as the case may be, the right to continue using Unit C Fumed Alumina or
Substitute Fumed Alumina (in the event that the Parties determine it is more
practical for CMC to obtain such right, at Cabot's expense, then CMC will
cooperate in doing so); (y) modify the same so that it becomes noninfringing; or
(z) replace it with noninfringing Fumed Alumina. In the event that Cabot is
unable to achieve either alternative (x), (y) or (z), Cabot may terminate this
Agreement without further liability to CMC (in which case CMC shall not be
liable for the Remaining Capital Costs as defined in Section 6.1 or any other
costs or amounts, other than for Schedule 1 payments through the date of such
termination). This Section 5.3 states Cabot's entire obligation and liability
with respect to intellectual property infringement claims. Notwithstanding the
foregoing, Cabot does not assume any obligation or liability with respect to (i)
any use of products by CMC or its affiliates or their customers (or other CMC
Indemnified Party), including without limitation use of products alone or in
combination with other substances or components or (ii) products furnished, or
methods used by Cabot, in accordance with specifications or instructions
furnished by or prescribed by CMC.
(b) If Cabot is enjoined from supplying Unit C Fumed Alumina or
Substitute Fumed Alumina, or CMC is enjoined from purchasing or using Unit C
Fumed Alumina or Substitute Fumed Alumina, or if Cabot determines in good faith
that it is unable or unwilling to supply Unit C Fumed Alumina or Substitute
Fumed Alumina because such Fumed Alumina or its use may infringe a patent or
constitute a misappropriation of a trade secret, then Cabot shall have the right
to suspend supplying the affected Fumed Alumina to CMC without incurring any
liability under this Agreement. In the event that (i) such injunction results
from a claim for which Cabot is responsible under Section 5.3(a) or (ii) such
determination relates to an infringement or possible infringement for which
CABOT MICROELECTRONICS CORPORATION - CABOT CORPORATION CONFIDENTIAL
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Cabot is responsible under Section 5.3(a), then the Parties agree that: (1)
Cabot and CMC shall work together to discuss viable and commercially reasonable
alternatives for assuring continued supply to CMC of Unit C Fumed Alumina or
Substitute Fumed Alumina; and (2) Cabot and CMC shall mutually agree, at Cabot's
expense, to have Cabot take one or more (in parallel or sequentially) of the
following options: (x) procure for Cabot or CMC, as the case may be, the right
to continue using Unit C Fumed Alumina or Substitute Fumed Alumina (in the event
that the Parties determine it is more practical for CMC to obtain such right, at
Cabot's expense, then CMC will cooperate in doing so ; (y) modify the same so
that it becomes noninfringing; or (z) replace it with noninfringing Fumed
Alumina. In the event that Cabot is unable to achieve either alternative (x),
(y) or (z), Cabot may suspend supplying Unit C Fumed Alumina or Substitute Fumed
Alumina to CMC or terminate this Agreement without further liability to CMC (in
which case CMC shall not be liable for the Remaining Capital Costs as defined in
Section 6.1 or any other costs or amounts, other than for Schedule 1 payments
through the date of such termination).
(c) Subject to Section 5.2, CMC shall defend, indemnify and hold Cabot,
its officers, directors, employees, successors and permitted assigns
(collectively, the "Cabot Indemnified Parties") harmless from and against any
damages, liabilities, fines, penalties, costs and expenses (including reasonable
attorneys' fees) incurred by the Cabot Indemnified Parties in the defense of any
suit or legal proceeding against the Cabot Indemnified Parties insofar as the
same are based on claim of infringement or alleged infringement of any United
States or European Patent with respect to (i) any use of Unit C Fumed Alumina or
Substitute Fumed Alumina by CMC or its affiliates or their customers (or other
CMC Indemnified Party), including without limitation use of Unit C Fumed Alumina
or Substitute Fumed Alumina alone or in combination with other substances or
components or (ii) Unit C Fumed Alumina or Substitute Fumed Alumina furnished,
or methods used by Cabot, in accordance with specifications or instructions
furnished by or prescribed by CMC, provided that the Cabot Indemnified Parties
have given CMC (A) prompt written notice of all facts which it knows or should
know that might be the basis of such an infringement claim and (B) prompt
written notice of any such infringement claim and the institution of such suit
or proceeding, and that the Cabot Indemnified Parties provide CMC with all
necessary authority, information, and reasonable assistance to enable CMC to
control, settle or defend the same at CMC's option. This Section 5.3 states
CMC's entire obligation and liability with respect to intellectual property
infringement claims.
6. TERM AND TERMINATION
6.1 Term. (a) This Agreement shall be effective as of the Effective
Date and shall continue for a period of five (5) years from such date ("Initial
Term"). Thereafter, CMC may renew this Agreement for an additional five (5) year
period ("Renewal Term") as provided in paragraph (b) of this Section 6.1. Unless
terminated earlier as provided in Section 6.2, the "Term" shall mean the Initial
Term and, if applicable, the Renewal Term.
(b) No less than twelve (12) months prior to the end of the Initial
Term, CMC will notify Cabot in writing of either its election to renew this
Agreement or its election not to renew this Agreement as of the end of the
Initial Term. Cabot will confirm to CMC in writing within ten (10) days
following the twelve (12) months prior to the end of the Initial Term its
understanding of CMC's election to renew or not to renew this
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Agreement, or alternatively, of CMC's failure to provide Cabot with notice of
its election to renew or not to renew this Agreement. Failure by CMC to notify
Cabot in writing of its election to renew this Agreement no later than eleven
(11) months prior to the end of the Initial Term, shall be deemed an election by
CMC not to renew this Agreement, provided that Cabot has given CMC the notice
set forth in the preceding sentence. In the event that CMC does not elect to
renew this Agreement after its Initial Term, CMC will pay to Cabot the Remaining
Capital Costs which shall be due and payable within ninety (90) days after the
last day of the Initial Term. CMC will only be responsible for payment of the
Remaining Capital Costs to Cabot in the event that this Agreement terminates
upon expiration of the Initial Term. As used herein, "Remaining Capital Costs"
shall mean the present value of the remaining twenty (20) quarterly payments for
Initial Capital Costs, discounted at the quarterly rate of []% and calculated at
the end of the Initial Term, plus any unreimbursed Replacement Capital Costs and
any unreimbursed Additional Capital Costs (as defined on Schedule 1, Paragraph
II.3)
(c) In the event that this Agreement terminates upon expiration of the
Initial Term under this Section 6.1, and Cabot operates Tuscola Unit C for any
purpose and at any time during the period of three (3) years following such
termination of this Agreement, Cabot will reimburse CMC for the Initial Capital
Costs according to the formula below, beginning with the first quarter of such
Cabot production on Tuscola Unit C and ending no later than the tenth
anniversary of the end of the Initial Term:
Quarterly Reimbursement = []
Where: []
Cabot shall make such Quarterly Reimbursement payment to CMC within
thirty (30) days of the end of the applicable quarter. To the extent
any sums under this Agreement are due and owing by CMC to Cabot
following this Agreement's termination, Cabot may deduct such sums from
any Quarterly Reimbursement it owes to CMC hereunder.
(d) Except in the event this Agreement terminates upon expiration of
the Renewal Term, in the event that this Agreement terminates for any reason
other than upon expiration of the Initial Term under Section 6.1 (which is
addressed in 6.1 (c) above) and Cabot operates Tuscola Unit C for any purpose
and at any time during the period of three (3) years following such termination
of this Agreement, Cabot will reimburse CMC for Initial Capital Costs according
to the formula below, beginning with the first quarter of such Cabot production
on Tuscola Unit C and ending on either (I) the 40th quarter after the first
quarter of such Cabot production or (II) the fifteenth anniversary of the
Effective Date of this Agreement, whichever comes first:
Quarterly Reimbursement = []
Where: []
Provided, however, that the sum of Cabot's Quarterly Reimbursements to
CMC will not exceed the sum of the quarterly payments for Initial
Capital Costs made or owed by CMC to Cabot prior to termination of this
Agreement.
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Cabot shall make such Quarterly Reimbursement payment to CMC within
thirty (30) days of the end of the applicable quarter. To the extent
any sums under this Agreement are due and owing by CMC to Cabot
following this Agreement's termination, Cabot may deduct such sums from
any Quarterly Reimbursement it owes to CMC hereunder.
6.2 Termination for Material Default. If either Party materially
defaults in the performance of any material term, condition or covenant of this
Agreement and such default shall not have been remedied, or steps initiated to
remedy the same to the other Party's reasonable satisfaction, within one (1)
month after receipt of written notice thereof to the defaulting Party from the
other Party detailing such default and its intent to terminate this Agreement,
then the Party not in default may terminate this Agreement. In the case of
termination by CMC under this Section 6.2 for material default by Cabot, CMC
will not be liable for the Remaining Capital Costs, or other costs, other than
for Schedule 1 payments that are due and owing through the date of termination.
For purposes of this Section 6.2, among other things, Cabot's failure to deliver
InSpec Fumed Alumina in accordance with its obligations under this Agreement for
six (6) or more consecutive calendar months shall be deemed a material default
of a material term of this Agreement, provided, however, that CMC has ordered
Unit C Fumed Alumina during each of such months.
6.3 Rights and Obligations on Expiration or Termination. The provisions
of Sections 5, 6, and 8 of this Agreement shall survive the termination or
expiration of this Agreement. In addition, any rights of Cabot to, and
obligations of CMC to make, payments accrued through the date of such
termination, as well as obligations of the Parties under firm orders for
purchase and delivery of Unit C Fumed Alumina at the time of such termination
shall remain in effect after the termination or expiration of this Agreement.
7. CONSENTS; NOTICES
Unless otherwise set forth herein, whenever any notice, consent or
approval is to be given in this Agreement, it must be in writing and delivered
in accordance with the provisions of this Section 7. Any such writing will be
duly given upon delivery, if delivered by hand, facsimile transmission or mail,
to the following addresses:
If to Cabot: Xxxxx Xxxxxxxxxxx
Xxxxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Strategic Business Unit Manager,
CMP Business
Telcopier: 000-000-0000
With a copy to: Cabot Corporation
Two Seaport Lane, Suite 1300
Xxxxxx, XX 00000
Attn: Law Department
Telecopier: 000-000-0000
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If to CMC: Cabot Microelectronics Corporation
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Vice President of Operations
Telecopier: 000-000-0000
With a copy to: Cabot Microelectronics Corporation
000 Xxxxx Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: General Counsel
Telecopier: 000-000-0000
or to such other address as may be designated in writing by any of the parties
from time to time in accordance herewith.
8. GENERAL
8.1 Severability. If any provision of this Agreement shall be found to
be invalid or unenforceable, then such provision or provisions shall not
invalidate or in any way affect the enforceability of the remainder of this
Agreement and such provision or provisions shall be curtailed and limited to the
extent necessary to bring the Agreement within any legal requirement and the
parties shall negotiate in good faith with respect to an equitable modification
of the provision or application thereof held to be invalid.
8.2 Modification; Waivers. Except as expressly provided herein, this
Agreement may be modified or amended only with the written consent of each party
hereto. Neither party hereto shall be released from its obligations hereunder
without the written consent of the other party. The observance of any term of
this Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) by the party entitled to enforce such
term, but any such waiver shall be effective only if in a writing signed by the
party against which such waiver is to be asserted. Except as otherwise
specifically provided herein, no delay on the part of either party hereto in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of either party hereto of any right,
power or privilege hereunder operate as a waiver of any other right, power or
privilege hereunder nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.
8.3 Succession. This Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and other
legal representatives and, to the extent that any assignment hereof is permitted
hereunder, their assignees.
8.4 Counterparts. This Agreement may be executed in counterparts.
8.5 Further Assurances. Each party agrees to provide any additional
documents and take any such further action as may be reasonably requested by the
other party in order to carry out the purpose and intent of this Agreement.
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8.6 Entire Agreement. This Agreement contains the full and complete
undertaking and agreement between the parties hereto with respect to the sale of
Unit C Fumed Alumina and Substitute Fumed Alumina by Cabot to CMC, and
supersedes all other agreements between Cabot and CMC, whether written or oral,
except any confidentiality agreements between the parties, which shall, to the
extent such agreements do not contradict the terms of this Agreement, continue
in effect.
8.7 Headings. The headings of the sections and other subdivisions of
this Agreement are for convenient reference only. They shall not be used in any
way to govern, limit, modify, construe this Agreement or any part or provision
thereof nor otherwise be given any legal effect.
8.8 Assignees and Third Parties. This Agreement may not be assigned by
either party without the prior written consent of the other party and any
attempted assignment without such consent shall be null and void; provided,
however, that Cabot may assign this Agreement to a subsidiary or affiliated
company. A change of control of either Party will not be deemed to be an
assignment in violation of this Section 8.8. In addition, Cabot may make
arrangements for the production and sale of Unit C Fumed Alumina required
hereunder to be manufactured and sold by a subsidiary or an affiliate, including
but not limited to Cabot Carbon Ltd. Such arrangements may take the form of an
assignment of certain rights and obligations hereunder or a subcontract of
certain obligations hereunder. Similarly, CMC may make arrangements for the
purchase of Fumed Alumina hereunder to be made by a subsidiary or affiliate,
including but not limited to Cabot Microelectronics International Corporation.
Such arrangements may take the form of an assignment of certain rights and
obligations hereunder. However, all sales of Unit C Fumed Alumina or Substitute
Fumed Alumina pursuant to any such arrangement shall be governed by the terms of
this Agreement.
8.9 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of Delaware, without giving effect to
principles of conflicts or choice of laws of Delaware or of any other
jurisdiction.
8.10 Force Majeure. Each of the parties hereto shall be excused from
delays in performing or from failure to perform hereunder to the extent that
such delays or failures result from causes beyond the reasonable control of such
party, including, but not limited to, forces of nature, acts of God, strikes,
lockouts, wars, blockades, insurrections, riots, epidemics, restraints or
requirements of any government or government agency, civil disturbances,
explosions, breakage or accident to machinery or lines of pipe, unavailability
of raw material or supplies, strandings, perils of the sea, the binding order of
any court or governmental authority which has been resisted in good faith by all
reasonable means, and other cause, whether of the kind enumerated or otherwise,
not reasonably within the control of the party claiming suspension. Failure to
prevent or settle any strike shall not be considered to be a matter within the
control of the party claiming suspension. However, in order to be excused from
delay or failure to perform, such party must act diligently to remedy the cause
of such delay or failure.
8.11 CMC reserves the right, upon reasonable prior written notice to
Cabot, to be given Cabot production, cost and quality records for Tuscola Unit C
solely in order to verify Cabot's compliance with its obligations under this
Agreement. CMC shall also have the third party audit rights under Schedule 1,
Paragraph IV.
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8.12 Confidentiality. Each of Cabot and CMC agree to keep confidential
and not disclose, and shall cause their respective subsidiaries and affiliates
to keep confidential and not disclose, to any party or use for any purpose
(other than for the performance of this Agreement or the Master FMO Agreement),
any proprietary or other confidential information of the other party which is
received pursuant to this Agreement ("Confidential Information"). Confidential
Information shall be subject to the restrictions of this paragraph only if it is
marked as confidential or proprietary or, if not disclosed in tangible form, the
disclosing party notifies the recipient of its confidential or proprietary
nature prior to its disclosure. For purposes of this Agreement, Confidential
Information of a party does not include, and a party and a party's subsidiaries
and affiliates will have no obligations under this provision with respect to,
any information of the other party or any subsidiary or affiliate of the other
party (the other party and subsidiaries and affiliates of the other party being
referred to as the "receiving party") which:
(i) is already known to the receiving party from a source other than
the disclosing party as evidenced by competent proof thereof; or
(ii) is or becomes publicly known through no wrongful act of the
receiving party (in which event the receiving party's obligations under this
Agreement in respect thereto shall terminate on the date such information enters
the public domain); or
(iii) is rightfully received by the receiving party from a third party
without violation of any obligations of confidentiality owed by the third party
to the disclosing party; or
(iv) is disclosed by the disclosing party to a third party without
restrictions on the third party's right to use or disclose such information; or
(v) is independently developed by employees or consultants of the
receiving party without use of or reference to the disclosing party's
Confidential Information; or
(vi) is approved for release by written authorization of the disclosing
party
8.13 Independent Contractors. CMC and Cabot are each independent
contractors. Nothing herein contained shall be construed to place CMC and Cabot
in the relationship of principal and agent, master and servant, partners, or
joint ventures, and, except as otherwise set forth in this Agreement, neither
party shall have, expressly or by implication, the power to represent itself as
having any authority to make contracts in the name of or binding upon the other,
or to obligate or bind the other in any manner whatsoever.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives as of the date first set forth
above.
CABOT CORPORATION
By ______________________________________
Title:____________________________________
CABOT MICROELECTRONICS CORPORATION
By ______________________________________
Title:____________________________________
CABOT MICROELECTRONICS CORPORATION - CABOT CORPORATION CONFIDENTIAL
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SCHEDULE 1
[5 pages have been omitted pursuant to a request for confidential treatment
under Rule 24b-2, promulgated under the Securities Exchange Act of 1934, as
amended.]
CABOT MICROELECTRONICS CORPORATION - CABOT CORPORATION CONFIDENTIAL
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EXHIBIT A
[9 pages have been omitted pursuant to a request for confidential treatment
under Rule 24b-2, promulgated under the Securities Exchange Act of 1934, as
amended.]
CABOT MICROELECTRONICS CORPORATION - CABOT CORPORATION CONFIDENTIAL
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EXHIBIT B
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CABOT MICROELECTRONICS CORPORATION - CABOT CORPORATION CONFIDENTIAL
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EXHIBIT C
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CABOT MICROELECTRONICS CORPORATION - CABOT CORPORATION CONFIDENTIAL
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EXHIBIT D
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CABOT MICROELECTRONICS CORPORATION - CABOT CORPORATION CONFIDENTIAL
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EXHIBIT E
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CABOT MICROELECTRONICS CORPORATION - CABOT CORPORATION CONFIDENTIAL
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EXHIBIT F
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CABOT MICROELECTRONICS CORPORATION - CABOT CORPORATION CONFIDENTIAL
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