SUPPLY AGREEMENT
Exhibit 10.1
THIS SUPPLY AGREEMENT (this “Agreement”) is made and entered into as of June 1, 2009 (the
“Effective Date”), by and between Sun Chemical Corporation, a Delaware corporation, and its
affiliates (“Sun”), and Graphic Packaging International, Inc., a Delaware corporation
(“GPI”).
Background
Sun and GPI have entered into an Asset Purchase Agreement dated May 20, 2009 (the “Asset
Purchase Agreement”) pursuant to which Sun has agreed to buy certain of the assets of certain
of GPI’s subsidiaries engaged in the manufacture, marketing and supply of certain printing inks,
artists inks, coatings, varnishes and alkyds (the “Business”) to internal and third-party
customers (the “Asset Purchase”). In connection with the Asset Purchase, Sun desires to
sell and GPI desires to purchase certain ink and related products (as defined below) on the terms
and conditions set forth in this Agreement.
Agreement
In consideration of the mutual representations, warranties, covenants and agreements contained in
this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Product Supply.
A. Subject to the terms and conditions of this Agreement, GPI agrees to purchase, and Sun agrees to
supply the products set forth in Appendix A attached hereto (the “Products”) for any
combination of GPI’s facilities in North America, for the term of this Agreement. Notwithstanding
the foregoing, GPI shall not be obligated to purchase any particular Product until such product has
been qualified for supply to GPI, which qualification GPI shall determine in accordance with GPI’s
policies and practices (such qualified Product is referred to herein as “Qualified
Product”) provided that such failure to qualify is solely attributable to the fault of Sun. It
is agreed and understood by the parties that GPI shall use reasonable commercial efforts to
facilitate and effect timely and prompt qualification of the Products at each of its facilities
having requirements for such Products and to cooperate with Sun as reasonably required to achieve
such prompt qualification of Products.
B. GPI may also purchase, and Sun may sell, such other items (“Additional Products”) as may
be mutually agreed upon by the Parties pursuant to mutually satisfactory terms and conditions;
provided that any purchases by GPI of such Additional Products from Sun will be deemed to count
toward the Minimum Aggregate Purchase Amount, the Minimum Annual Purchase Amount, the purchase
thresholds necessary to achieve a specified rebate rate or percentage and the purchase volumes
eligible for rebates.
2. Term.
A. The term of this Agreement (“Term”) shall begin as of the Effective Date and shall
expire on June 30, 2017 unless earlier terminated automatically or by one of the parties as
provided by the terms of this Agreement. It is the desire of the Parties to make the Agreement
anniversary
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date fall on July 1 of each year of the Term so as to coincide with the start of the third calendar
quarter of each year; thus, the initial year of this Agreement will begin on the Effective Date and
will terminate on June 30, 2010 so that the successive terms thereafter will run from July 1 to
June 30 for the seven years after the initial year, with the period commencing on the Effective
Date and terminating on June 30, 2010, and each of the seven twelve-month periods commencing on
July 1 thereafter during the Term referred to herein as a “Contract Year”.
B. Notwithstanding the foregoing, if GPI has not purchased the Minimum Aggregate Purchase Amount
over the Term, unless terminated early pursuant to Section(s) 20 below, then the Term shall be
extended through and until such time as GPI’s purchases of Qualified Products and Additional
Products equals or exceeds the Minimum Aggregate Purchase Amount. The “Minimum Aggregate
Purchase Amount” means, initially, the aggregate amount paid to Sun by GPI for purchases of
Qualified Products and Additional Products hereunder equal to $[*], exclusive of rebates, taxes,
duties and other charges; provided, however, that the Minimum Aggregate Purchase Amount shall be
updated and adjusted during the Term, as follows: At the time of every price adjustment made
pursuant to Appendix B, the parties shall calculate the “Remaining Minimum Purchase Amount”
by subtracting from the Minimum Aggregate Purchase Amount then in effect the sum of (i) the total
amount of prior sales of Products and Additional Products plus (ii) the total amount of other
credits against the Minimum Aggregate Purchase Amount per Sections 3B and 8B all as of the date of
the price adjustment (all of the foregoing prior sales and credits collectively referred to herein
as “Prior Purchase Credits”). A “Revised Remaining Purchase Amount” shall be
calculated by multiplying the Remaining Minimum Purchase Amount by the sum of (i) the number one
(1) plus the Weighted Average Price Change (as calculated pursuant to Appendix B) at the time of
such price adjustment. For the avoidance of doubt, if the Weighted Average Price Change represents
an overall price decrease, the Weighted Average Price Change shall be deemed to be a negative
number. The new Minimum Aggregate Purchase Price shall be an amount equal to the Revised Remaining
Purchase Amount plus (ii) the Prior Purchase Credits. At the time of every price
adjustment, Sun shall inform GPI in writing of the new Minimum Aggregate Purchase Amount.
3. Pricing, Quantity, Rebates and Audit. The consideration for GPI’s execution of this
Agreement in conjunction with the Asset Purchase Agreement shall be [*] ($[*]) in cash (the
“Incentive Payment”). On the date hereof, Sun shall wire to GPI, in immediately available
funds to an account designated in writing by GPI, the Incentive Payment. The Incentive Payment
shall be fully refunded to Sun, without interest, within fifteen (15) business days after any valid
termination of the Asset Purchase Agreement. The Incentive Payment shall become nonrefundable at
the time that the Asset Purchase is completed.
A. Pricing for Products as well as the mechanism for making future price adjustments shall be as
set forth in Appendix B attached hereto and incorporated herein by reference.
| [*] | CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. |
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B. In each of the first seven years of the Term, GPI will purchase from Sun at least 95% of GPI’s
Annual Organic Requirements for Qualified Products and in the eighth year of the Term, GPI will
purchase from Sun at least 75% of GPI’s Annual Organic Requirements for Qualified Products.
Notwithstanding the foregoing, GPI shall purchase no less than the Minimum Aggregate Purchase
Amount during the Term. Sun and GPI agree that GPI may purchase less than 95% of its Annual Organic
Requirements for any Product that is not a Qualified Product as of the first day of the applicable
contract year, provided that failure to qualify such Product is solely attributable to the fault of
Sun; and further agree that, in such instance, the percentage of Annual Organic Requirements of
such Product(s) qualified after the first day of the Contract Year which GPI shall be required to
purchase hereunder shall be prorated based on the date on which qualification is achieved. If Sun
cannot supply Qualified Product after December 31, 2009, for reasons solely attributable to the
fault of Sun, and GPI makes purchases of such Product from a third party, such purchase will be
deemed to count toward the Minimum Aggregate Purchase Amount, the Minimum Annual Purchase Amount,
and the purchase thresholds necessary to achieve a specified rebate rate or percentage, but shall
not be counted toward calculated purchase volumes eligible for rebates. “Annual Organic
Requirements” means the annual requirements for Product that are generated by the businesses
owned by GPI as of the date hereof as the same expand or contract or otherwise may be modified
during the Term; provided, however, for the avoidance of doubt, Annual Organic Requirements shall
not include (i) New Applications for Product in accordance with Section 12 unless such New
Applications become Qualified Products; and (ii) the requirements of any business acquired by GPI
from a third party (an “Acquired Business”).
C. Upon Sun’s request, GPI shall provide an officer’s certificate to Sun within 60 days of the end
of each contract year certifying as to whether the percentage of Qualified Products purchased from
Sun satisfied the requirements of this provision, and Sun shall have the right, no more frequently
than once per contract year and during regular business hours in a manner not disruptive to GPI’s
ordinary course of business, to have a mutually agreeable independent third party audit GPI’s
purchases to determine satisfaction of the requirements of this provision. In the event that any
such audit concludes that GPI has satisfied such purchase requirements, the cost of such audit will
be at Sun’s expense; if not, such cost will be borne by GPI.
D. In the event of a dispute over whether the failure to qualify any Product(s) is solely
attributable to the fault of Sun, or instead attributable to the failure of GPI to use commercially
reasonable efforts to facilitate and effect timely and prompt qualification at any or all of its
facilities, the parties shall endeavor in good faith to resolve the dispute. In the event that
they are unable to do so within thirty (30) days after one party notifies the other in writing of
the existence of such dispute, the parties shall retain a mutually acceptable independent third
party technical advisor (“Technical Advisor”) with recognized experience and expertise in the inks
and printing industry to resolve the dispute. The parties shall afford Technical Advisor such
access as Technical Advisor may reasonably require during regular business hours, in a manner not
disruptive to the parties’ ordinary course of business and under provisions of confidentiality
mutually acceptable to the parties, to their facilities, personnel, processes, products, equipment
and information to the extent necessary to resolve the dispute. In the event that Technical
Advisor determines that a disputed failure to qualify is solely attributable to the fault of Sun,
fees
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and costs of Technical Advisor’s services shall be borne by Sun. In the event that the Technical
Advisor determines that the failure to qualify is solely attributable to the fault of GPI, fees and
costs shall be born by GPI. In the event that the Technical Advisor determines that the failure to
qualify is attributable to both parties, the fees and costs shall be born by the parties in the
proportion of their fault as determined by the Technical Advisor. The decision of the Technical
Advisor shall be final and shall be binding upon the parties.
E. GPI shall be entitled to retain a mutually agreeable independent party to audit Sun’s
determination of the Margin for 2008 under obligations of confidentiality satisfactory to Sun in
accordance with Appendix B. In addition, GPI shall have the right, no more frequently than once
per contract year and during regular business hours in a manner not disruptive to Sun’s ordinary
course of business, to have a mutually agreeable independent third party audit any price
adjustments made by Sun under obligations of confidentiality satisfactory to Sun in accordance with
this Agreement. In the event that any such audit concludes that the actual price increase should
have been an amount greater than [*] or that the actual price decrease should have been an amount
greater than [*] (in either case, a “Significant Overcharge”), the cost of such audit will
be at Sun’s expense; if not, such cost will be borne by GPI. Sun shall promptly, but in no event
more than ten (10) days after the determination of any overcharge, refund to GPI any amounts
overpaid by GPI with respect to any Qualified Product purchased since the date the applicable price
change was implemented by Sun.
F. Except as set forth below, on or before the thirtieth day following the end of each of the first
three quarters during each calendar year during the Term, Sun will pay to GPI a quarterly rebate
amount in cash or credit, at the election of GPI, based on purchase volumes for Qualified Products
and Additional Products during such quarter, calculated as set forth below (a “Quarterly Rebate
Amount”):
| Total Purchase Volumes for Quarter | Quarterly Rebate Rate | |
| [*] | [*] | |
| [*] | [*] | |
| [*] | [*] | |
| [*] | [*] | |
| [*] | [*] | |
| [*] | [*] | |
| [*] | [*] |
| [*] | CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. |
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No later than thirty (30) days following the expiration of each calendar year during the Term, with
the exception of year 2009, Sun will pay to GPI an Annual Rebate Amount in cash or credit, at the
election of GPI, based on purchase volumes for Qualified Products and Additional Products during
such preceding calendar year, in an amount, if any, equal to (A) the Annual Rebate Amount (as
defined below) less (B) the total of the Quarterly Rebate Amounts paid to GPI for the first three
quarters of such preceding calendar year, if a positive number. If the total of the rebates paid
to GPI for the first three quarters of such calendar year exceeds the Annual Rebate Amount owed to
GPI for such calendar year, then GPI shall pay to Sun, within such thirty (30) day period, the
amount by which the sum of the Quarterly Rebate Amounts for the first three quarters exceeds the
Annual Rebate Amount earned for such calendar year or, at Sun’s discretion, this amount will be
deducted from the following quarterly rebate payment(s) until it is fully depleted. The Annual
Rebate Amount shall be calculated as follows:
| Total Purchase Volumes for Calendar Year | Annual Rebate Amount | |
| [*] | [*] | |
| [*] | [*] | |
| [*] | [*] | |
| [*] | [*] | |
| [*] | [*] | |
| [*] | [*] | |
| [*] | [*] |
In calendar year 2017, the regular Quarterly Rebate Amounts shall be paid in the first and second
quarters. If this Agreement terminates as scheduled on June 30, 2017, no Annual Rebate Amount
shall be paid. If this Agreement is required to continue after June 30, 2017 in accordance with
Section 20, the regular quarterly rebates and annual rebates shall continue for the remainder of
the Agreement, and in any partial calendar year the Quarterly Rebate Amounts will be paid but no
Annual Rebate Amount shall be paid.
Notwithstanding anything to the contrary in the foregoing, Quarterly Rebate Amounts for the third
and fourth quarters of calendar year 2009 shall be calculated in accordance with the provisions of
Appendix C attached hereto and incorporated herein by reference.
The sum of any Quarterly Rebate Amounts payable in the third and fourth quarters of calendar years
2009 is referred to herein as the “Initial Rebate Amount.”
| [*] | CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. |
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On or before January 31, 2010, Sun and GPI shall agree to the total volume of Qualified Product and
Additional Products purchased by GPI during the calendar year 2009, whether or not such Qualified
Products or Additional Products were purchased pursuant to this Agreement, and Sun shall pay to GPI
an amount, if any, equal to (A) the 2009 Rebate Amount (as defined below) less (B) the Initial
Rebate Amount. The 2009 Rebate Amount shall be calculated as follows:
| Total Purchase Volumes for 2009 | 2009 Rebate Amount | |
| [*] | [*] | |
| [*] | [*] | |
| [*] | [*] | |
| [*] | [*] | |
| [*] | [*] | |
| [*] | [*] | |
| [*] | [*] |
G. Unless otherwise specified herein, rebates, payments for purchases hereunder and any other
payments owed by one party to another hereunder may be made by ACH transfer to an account
designated in writing by the party receiving such payment.
4. Payment Terms. Payment terms are net 60 days. Interest at the rate of 1% per month
will be charged on all past due amounts up to thirty (30) days past due, and at the rate of 2% per
month on all amounts past due longer than thirty (30) days. Sun agrees all payment terms are
dependent on accurately invoicing GPI. As such, payment terms begin upon receipt of an accurate
invoice by GPI from Sun. If an invoice is incomplete or inaccurate, GPI will pay all undisputed
amounts within terms according to the original invoice date, but will not be held in default for
non-payment of disputed items until the dispute has been resolved and any inaccurate or incomplete
invoices have been corrected by Sun. Products provided on a consignment basis shall be billed
monthly once the container is opened.
5. Shipment and Delivery. Subject to Section 16, Sun agrees to deliver Qualified Products
on or prior to the agreed-upon delivery dates and if any shipment or delivery is made which is not
in all material respects in accord with this Agreement (including time of shipment or delivery),
GPI reserves the right to reject such delivery without liability to Sun, and, in the absence of an
event
| [*] | CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. |
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of force majeure such rejected volumes shall be included in calculating GPI’s rebate percentages,
but not purchase volumes eligible for rebates. Sun will ship the Products in a manner consistent
with general industry practice so as to minimize any damage while in transit. GPI is not
responsible for any charge for packing, boxing, storage or cartage.
6. Passage of Title.
A. Unless otherwise specifically agreed to by the parties, all Qualified Product will be purchased
on consignment. With respect to Product sold by consignment, Sun agrees to deliver to GPI’s
facility or facilities and GPI agrees to accept Products. Sun will remain the owner of the
Products until said Products are purchased by GPI pursuant to the terms of this Agreement. Either
the actual use of the Product or its removal from the Storage Area (defined hereinafter), as
applicable, shall be deemed the time of purchase of such Product under this Agreement. GPI shall
receive and accept delivery of the Products, and safely store them as Sun’s property at Buyer’s
applicable place of business (the “Premises”), so as to reasonably protect the Products from loss,
damage or deterioration. All such Products shall prominently bear Sun’s name and shall be
conspicuously marked and identified as being the property of Sun. GPI shall designate a storage
area (“Storage Area”) on the Premises solely for storage of Sun’s Products. The Products in the
Storage Area located at the Premises shall be physically segregated from and not commingled either
with GPI’s inventory or other property or with the property of any other person, and GPI agrees to
execute such financing statements and other documents as Sun may reasonably require to perfect
Sun’s security interest in, and to give notice of and confirm it’s ownership of, the Products to
which Sun retains title.
B. With respect to any Qualified Product not sold by consignment, title to all items sold to GPI
hereunder shall pass to GPI upon delivery of same by Sun to GPI DDU designated GPI converting
facility (Incoterms 2000). All risk of loss or damage to said items prior to such delivery shall
fall upon Sun, and Sun shall defend and hold GPI harmless against any claims asserted against GPI
on account of any personal injury or property damages caused by any transported materials, or by
the transportation thereof, prior to the completion of unloading at GPI’s plant.
7. Material Specifications. All Qualified Products sold by Sun to GPI will comply with the
material specifications attached hereto as Appendix D and incorporated herein by reference
(“Specifications”).
8. Inspection; Non-Conforming Goods.
A. GPI shall have the right, but not the obligation, to inspect at any location and at any time all
Qualified Products, and to reject that which does not conform to Specifications, or if not so
specified, which do not conform to standard industry specifications (“Non-Conforming
Goods”). GPI may make returns of Non-Conforming Goods to Sun at Sun’s expense and may purchase
replacement goods from third parties in accordance with Section 8B. No such inspection by GPI
shall in any manner affect any of the warranties of Sun or constitute a waiver of any of GPI’s
rights hereunder or otherwise, and all items are subject to GPI’s inspection and right to reject
notwithstanding prior payment.
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B. Upon determining that any Qualified Product supplied hereunder constitutes Non-Conforming Goods,
GPI shall notify Sun and may contact third-party suppliers with respect to their ability to supply
replacement Products meeting the Specifications (“Replacement Products”). GPI may obtain
Replacement Products from Sun or a third-party supplier, whichever GPI in its sole discretion
determines is able to deliver such Replacement Products in the shortest amount of time.
Replacement Products supplied by Sun shall be supplied at Sun’s sole cost and expense. For
Replacement Products supplied by a third party, (i) GPI shall receive a credit in the amount paid
to Sun for such Non-Conforming Product, if applicable; and (ii) purchases of Replacement Products
from third parties shall be treated as if purchased from Sun for the purpose of calculating the
Minimum Aggregate Purchase Amount, Minimum Annual Purchase Amount, and Quarterly Rebate threshold.
GPI shall continue to count Replacement Product toward the calculations of the Minimum Aggregate
Purchase Amount, Minimum Annual Purchase Amount and Quarterly Rebate threshold (but not volumes
eligible for rebates) until Sun can produce Qualified Product once again.
C. Sun acknowledges that it will provide GPI with thirty (30) days notice before making changes in
raw materials or processes used by Sun in the manufacture of any Product or Additional Product to
the extent required by, and pursuant to the terms of, the Management of Change Process attached
hereto as Appendix E. Regardless of whether notice is required under the Management of Change
Process, Sun agrees to maintain a log of all raw material or process changes made by Sun in the
manufacture of any Product or Additional Product, which log may be consulted by GPI upon GPI’s
request.
9. Business and Technical Support/In-Plant Technicians/Testing. In partial consideration
of GPI’s commitment hereunder, Sun shall provide the following services at no additional cost to
GPI:
| (a) | The services of a dedicated business manager, as more specifically described in Appendix F, attached hereto. | ||
| (b) | The services of technical support, Black Belt and Color Manager personnel, as more specifically described in Appendix G, attached hereto. | ||
| (c) | Quarterly testing of inks as required by GPI. Original testing will be performed by Xxxxx Xxxxxxx and Associates. Future testing may be revised upon mutual consent of both parties. | ||
| (d) | Additional support services currently provided by the Handschy business as set forth in Appendix H. |
GPI shall provide, at no charge, a safe and appropriate area close to the pressroom, including
desk, file cabinets, work table, telephone and such other amenities as Sun may reasonably request
to enable it to provide its in-plant services. GPI will also provide, at no charge, heat, light,
power and other services for Sun’s in-plant services.
10. Equipment. In partial consideration of GPI’s commitment hereunder, Sun shall provide
and maintain all in-plant equipment necessary to perform its obligations hereunder, as set forth in
Appendix I. Ownership of such equipment will remain with Sun, and such equipment will be labeled
“property of Sun Chemical.” GPI agrees to execute such financing statements and other
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documents as Sun may reasonably require to perfect Sun’s security interest in, and to give notice
of and confirm it’s ownership of, the Equipment to which Sun retains title.
11. Profit Sharing Productivity Program. GPI and Sun agree that they shall use their
commercially reasonable efforts to implement a profit sharing productivity program and to allocate
the cost-savings realized from such program in the form and as set forth in detail on Appendix J,
attached hereto.
12. New Technology.
A. Sun will, to the extent that it is legally free to do so, provide GPI with prompt notice on any
new developmental breakthroughs developed by Sun and ready for commercial use concerning the
Products (“New Technology”), under such terms of confidentiality as may be required by Sun,
in its sole discretion. In addition, Sun will provide a technology innovation presentation twice a
year during the Term which outlines, on a confidential basis, its ink development programs
concerning the Products. For any New Technology that GPI wishes to pursue with Sun, Sun and GPI
will use reasonable commercial efforts to qualify products embodying New Technology as Qualified
Products to be supplied to GPI pursuant to the terms of this Agreement. In addition, where Sun is
legally free to do so, the parties agree to negotiate in good faith mutually satisfactory
agreements pursuant to which Sun would supply the New Technology exclusively to GPI, and not to any
other customer of Sun, for a period of time to be determined by the parties.
B. GPI will provide to Sun, on a confidential basis, the opportunity to supply all Product
developments for New Applications. A “New Application” means, with respect to any product: (i) an
ink or coating that allows for a new performance enhancement (e.g., gloss, metallic) or application
(e.g., coating that provides barrier) that is not commercial as of the signing of this Agreement;
or (ii) a new ink or coating that allows production of an existing capability with a new process
(e.g., HTL labels run flexo); provided, however, for the avoidance of doubt, New Applications for
Product shall not be considered part of GPI’s Annual Organic Requirements unless such New
Applications are, upon mutual agreement of the parties,, qualified for such New Applications
following which they will be deemed “Qualified Products” with respect to such New Applications. If
not so qualified, they will be deemed “Additional Products”, as defined above. GPI will use Sun as
the vendor of choice for New Applications of Product so long as the pricing and performance of the
Product in the New Application is competitive; if not competitive, GPI shall have the right to
source the Product for the New Application outside of this Agreement without penalty.
13. Indemnity.
A. Sun shall indemnify, defend, protect and hold harmless GPI, its employees, agents, servants,
successors and assigns from and against any and all losses, damages, injuries, claims, demands,
expenses, including legal fees and expenses, of whatever nature, arising out of the performance by
Sun of its obligations hereunder, or arising out of the performance of the services provided by or
on behalf of Sun for GPI hereunder resulting in injuries to or death of any person or persons or
damage to any property occasioned by acts or omissions of Sun, its officers, employees, agents
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or subcontractors, except to the extent due to the negligent or intentional acts of GPI or its
personnel.
B. GPI shall indemnify, defend, protect and hold harmless Sun, its employees, agents, servants,
successors and assigns from and against any and all losses, damages, injuries, claims, demands,
expenses, including legal fees and expenses, of whatever nature, resulting from injuries to or
death of any Sun in-plant personnel at GPI’s facilities or locations resulting from the negligence
or willful misconduct of GPI.
C. Sun shall indemnify, defend, protect and hold harmless GPI, its employees, agents, servants,
successors and assigns from all costs, expenses, including reasonable attorneys’ fees, damages or
claims arising out of infringement or claim of infringement of any patent rights, trademark,
tradename or copyright based on the sale, purchase or use of the items covered by this Agreement.
Sun further agrees that in the event of any such claim, and if required by GPI, Sun shall at its
expense and at no cost to GPI do one of the following:
| (i) | Procure for GPI the right of license to use and continue to use said items; or | ||
| (ii) | Replace said items with non-infringing items and/or services of like or superior kind, productivity, efficiency, quality and value; or | ||
| (iii) | Modify said items so as to become non-infringing. Should the items be modified, as provided herein, such modification shall not reduce the usefulness or productivity of same. |
14. Limited Warranty/Limitation on Liability.
A. Sun expressly warrants that title to all items sold to GPI under this Agreement will pass to
GPI free and clear of all liens, claims, security interests or encumbrances and that no materials,
equipment or supplies incorporated into any items sold to GPI hereunder will have been acquired by
Sun subject to an agreement under which any interest therein or any encumbrance thereon is retained
by Sun which will survive delivery to GPI.
B. Sun expressly warrants that the Products sold hereunder shall conform to the Specifications
and shall be free from defects in materials or workmanship. Equipment supplied pursuant to Section
10 of this Agreement is provided subject to the manufacturer’s standard warranty. SUN HEREBY
DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE OR PURPOSE. IN THE EVENT OF FAILURE OF ANY
PRODUCT TO CONFORM TO THE WARRANTY PROVIDED HEREIN, SUN’S SOLE OBLIGATION, AND GPI’S RIGHT, SHALL
BE FOR SUN TO REPLACE SUCH NON-CONFORMING PRODUCT OR REFUND THE PURCHASE PRICE. IN ADDITION, SUN
WILL INDEMNIFY AND HOLD HARMLESS GPI FOR DAMAGES DIRECTLY SUSTAINED OR INCURRED BY GPI RESULTING
FROM A BREACH OF THE WARRANTY PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION COSTS OF RE-WORK,
DISPOSAL, RAW MATERIALS AND LABOR. IN NO EVENT SHALL SUN BE LIABLE TO GPI FOR ANY OTHER CLAIMS
(EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 13, ABOVE), REGARDLESS OF THE FORM OF ACTION, OR
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FOR ANY OTHER DAMAGES WHETHER INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL, INCLUDING BUT NOT
LIMITED TO LOST PROFITS, WHETHER FORESEEABLE OR NOT, EVEN IF SUN HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
15. Independent Contractor. Sun agrees that in the performance of this Agreement, Sun
shall act as an independent Contractor and all of its agents, and employees, and agents and
employees of its subcontractors, shall be subject solely to the control, supervision and authority
of Sun.
16. Force Majeure. Neither party shall be liable for delay in its performance of its
obligations and responsibilities under this Agreement due to causes beyond its control such as, but
not limited to, war, embargo, national emergency, insurrection or riots, acts of the public enemy,
fire, flood or other natural disaster, (a “Period of Disability”) provided that said party
has taken reasonable measures to notify the other, in writing, of the delay or anticipated delay.
Failure of subcontractors and inability to obtain materials shall not be considered a Period of
Disability for purposes of this clause. If, due to a Period of Disability, Sun should be unable to
meet all of its delivery commitments for items ordered hereunder as they become due, Sun shall not
discriminate against GPI or in favor of any other customer in making deliveries of such items. If
GPI believes that the Period of Disability or anticipated Period of Disability as notified in
writing by Sun may impair its ability to meet its production schedules or may otherwise interfere
with its operation, GPI may at its option and without liability to Sun, cancel outstanding
deliveries or future orders hereunder wholly or in part during the Period of Disability; any
purchases made by GPI from alternative providers during any Period of Disability of Sun shall
nevertheless be credited towards GPI’s annual volume purchasing with Sun for the sole purpose of
determining rebate rate (but not sales volume eligible for rebate), with appropriate documentation
of the purchases from GPI. If Sun’s Period of Disability lasts beyond 60 days, or if Sun notifies
GPI that it anticipates the Period of Disability to last beyond 60 days, GPI may, at its option,
cancel all or a portion of this Agreement in writing without liability to Sun.
17. Compliance with Law. A. GPI hereby notifies Sun that, if covered, Sun has an
obligation to develop and maintain an affirmative action program in compliance with EO 1246, as
amended, the Rehabilitation Act of 1973, as amended, the Vietnam Era Readjustment Act of 1974. Sun
represents to GPI that, if covered, it is in compliance with EO 11246, as amended, the
Rehabilitation Act of 1973, as amended, and the Vietnam Era Readjustment Act of 1974. The
mandatory clauses required under those laws, being set forth in 41 CFR 60-1.4(a), 41 CFR
60-250.4(a). 41 CFR 60-741.4(a) are incorporated herein by reference.
B. Sun (1) is required to meet the filing requirements of 41 CFR 60-1.7(a) and 41 CFR 61-250.11,
if applicable, (2) hereby certifies that it currently observes and will hereafter observe all
requirements pertaining to non-segregated facilities set out in 41 CFR 60-1.8(b), (3) will list, to
the extent legally required, all suitable employment openings with the appropriate state employment
service pursuant to 41 CFR 60-250.5(d), and (4) will make and/or retain all records required by
state and federal laws.
C. Sun currently observes and will continue to observe the requirements of the Drug-Free Workplace
Act of 1988.
12
D. Sun will comply with all provisions of the OSHA Hazard Communication Standard (20) CFR
1910.1200, et seq.) including Sun’s obligation to furnish any applicable material safety data
sheets, together with appropriate labels and employee training and instruction materials.
E. Sun will comply with requirements of the Fair Labor Standards Act of 1938, as amended, and all
applicable United States Department of Labor Regulations promulgated thereunder or otherwise
dealing with wages and hours of work, and shall certify at time of delivery said compliance.
F. Sun shall not, under any circumstances, in connection with the work to be performed hereunder,
cause or permit the discharge, emission, release, storage, disposal or transportation of any
pollutant, hazardous contaminant, toxic or other substance in violation of any applicable laws,
rules or regulations which are now or hereafter promulgated by Federal, state, or local
authorities.
G. Sun further agrees to comply with any and all applicable federal, state and local laws, orders
and regulations not specifically referenced herein.
18. Sales and/or Use Taxes. Except as otherwise specifically provided herein, GPI shall
bear the cost of any taxes, levies, or fees of any kind, nature or description whatsoever
applicable to the sale of any Products sold by Sun to GPI, and GPI shall forthwith pay to Sun all
such sums upon demand, unless GPI shall provide Sun, at the time of the submission of its orders to
Sun, with tax exemption certificates or permits acceptable to the appropriate taxing authorities.
Sun, as a contractor, will pay and be solely responsible for any and all sales and/or use taxes on
all materials, supplies and equipment used in the performance of Sun’s obligations under this
Agreement, all in accordance with applicable law.
19. Insurance. If any of Sun’s employees, subcontractors, or agents will be present on
GPI’s premises at any time in order to perform under this Agreement, Sun shall ensure that it, its
subcontractors and/or agents have procured and maintain insurance as required by GPI. GPI’s
insurance requirements are attached hereto as Appendix K. In exchange for the waiver of
subrogation given by Sun to GPI in Appendix K regarding workers compensation claims, GPI will grant
to Sun an equivalent waiver of subrogation on such claims.
20. Termination.
A. Either party may terminate this Agreement immediately upon giving written notice in the event
the other party ceases or threatens to cease to carry on its business.
B. In addition, either party may terminate this Agreement by giving written notice of a material
default or breach by the other party in the prompt performance of any obligation undertaken by it
hereunder which is capable of being cured and is not cured within fifteen (15) days of the receipt
of notice thereof; provided that neither the contesting in good faith the quality or the
effectiveness of the Product nor the withholding of amounts claimed to be owed hereunder in
connection with a good faith dispute concerning such Product as provided in Section 4, above, shall
be considered a material default or breach for this purpose.
13
C. Graphic may terminate this Agreement at any time by giving written notice to Sun accompanied by
a termination fee in the amount of [*]. No termination fee will be payable upon a termination by
Graphic after the end of the later of the seventh contract year or the purchase by GPI of the
Minimum Aggregate Purchase Amount.
D. Sun may terminate this Agreement at any time prior to thirty (30) days following the end of any
contract year (other than the initial contract year) in which Graphic does not purchase (on a gross
basis prior to any rebates) at least $[*] under this Agreement (the “Minimum Annual Purchase
Amount”). Upon such termination by Sun, Graphic will be required to pay to Sun within sixty
(60) days of receipt of such notice by Graphic a termination fee in the amount corresponding to the
period in which the termination notice is received and the termination fee payable in Section 20C
above.
E. If the Asset Purchase Agreement is terminated by either party or the Asset Purchase does not
close within three (3) months of the date hereof, this Agreement shall automatically terminate and
be of no further force.
F. For avoidance of doubt, no termination fees will be payable if this Agreement is terminated by
GPI pursuant to Sections 20A, 20B or 20E above.
G. Any right of termination hereunder accruing to either party under this Section 20 shall be in
addition to and not in lieu of and without prejudice to any other rights and remedies which such
party may have, including the right to seek damages.
H. Notwithstanding anything to the contrary in the foregoing, at GPI’s request, Sun will continue
to supply GPI with specified Qualified Products in accordance with the terms and conditions of this
Agreement for a period of ninety (90) days following delivery of a notice of termination by Sun
under Sections 20A, or 20D above.
21. Notices. All notices, requests, demands, and other communications hereunder shall be
in writing (which shall include communications by telex and telephonic facsimile) and shall be
delivered (a) in person or by courier or overnight service, (b) mailed by first class registered or
certified mail, postage prepaid, return receipt requested, or (c) by facsimile transmission or pdf,
as follows:
If to Sun:
|
Sun Chemical Corporation North American Inks Attn: Xxxxx Xxxx 00 Xxxxxxxxx Xxxx. Xxxxxxxxxx, XX 00000-0000 Telephone: x0 (000) 000-0000 Facsimile: x0 (000) 000-0000 Email: xxxxx.xxxx@xxxxxxxxxxx.xxx |
| [*] | CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. CONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS. |
14
| with a copy (which shall not constitute notice) to: | ||
| Sun Chemical Corporation 00 Xxxxxxxxx Xxxx. Xxxxxxxxxx, XX 00000-0000 Attn: Legal Department Telephone: x0 (000) 000-0000 Facsimile: +1 (973) 404)-6492 Email: xxxx.xxxxxxxxx@xxxxxxxxxxx.xxx |
||
If to GPI:
|
Graphic Packaging International, Inc. Attn: General Counsel 000 Xxxxxxxxxx Xxxxx Xxxxxxxx, XX 00000 Telephone: 000-000-0000 Facsimile: 000-000-0000 |
|
| with a copy (which shall not constitute notice) to: | ||
| Xxxxxx & Bird LLP 0000 Xxxx Xxxxxxxxx Xxxxxx Xxxxxxx, Xxxxxxx 00000 Attention: Xxxxxxxxxxx Xxxxxxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Email: xxxxx.xxxxxxxx@xxxxxx.xxx |
or to such other address as the parties hereto may designate in writing to the other in accordance
with this Section 21. Any party may change the address to which notices are to be sent by giving
written notice of such change of address to the other parties in the manner above provided for
giving notice. If delivered personally or by courier, the date on which the notice, request,
instruction or document is delivered shall be the date on which such delivery is made and if
delivered by facsimile transmission or mail as aforesaid, the date on which such notice, request,
instruction or document is received shall be the date of delivery.
22. Severability. In the event that any one or more of the provisions contained in this
Agreement shall for any reason be held to be unenforceable, illegal or otherwise invalid in any
respect with regard to this Agreement, such unenforceability, illegality or invalidity shall not
affect any other provision of this Agreement, and this Agreement shall then be construed as if such
unenforceable, illegal or invalid provisions had never been contained herein.
23. Survivability. The provisions of this Agreement, which by their nature are intended to
survive the termination, cancellation, completion or expiration of the Agreement, including but not
limited to any expressed limitations of or releases from liability, shall continue as valid and
enforceable obligations of the parties notwithstanding any such termination, cancellation,
completion or expiration.
15
24. Assignment. Neither GPI nor Sun shall have the right to assign or transfer its
interest or obligations hereunder without the prior written consent of the other party, which
consent shall not be unreasonably withheld or delayed.
25. Waiver. Neither this Agreement, nor any provision hereof, may be amended, changed,
waived, discharged, supplemented, or terminated orally, but only by an agreement in writing signed
by the party against which the enforcement of such amendment, change, waiver, discharge or
termination is sought. The failure or delay of any party at any time or times to require
performance of any provision of this Agreement shall in no manner affect its right to enforce that
provision. No single or partial waiver by any party of any condition of this Agreement, or the
breach of any term of this Agreement or the inaccuracy or warranty of this Agreement, whether by
conduct or otherwise, in any one or more instances shall be construed or deemed to be a further or
continuing waiver of any such condition, breach or inaccuracy or a waiver of any other condition,
breach or inaccuracy.
26. Complete Agreement. This Agreement, including the general terms and conditions hereof,
represents the entire agreement between Sun and GPI with respect to the items sold to GPI. All
prior agreements, representations, statements, negotiations, and undertakings, whether oral or
written, are superseded hereby.
27. Governing Law. Regardless of any conflict of law or choice of law principles that
might otherwise apply, the parties agree that this Agreement shall be governed by and construed in
all respects in accordance with the laws of the State of Delaware. As to any dispute, claim, or
litigation arising out of or relating in any way to this Agreement or the transaction at issue in
this Agreement, the parties hereby agree and consent to be subject to the jurisdiction of the state
or federal courts located in the State of Delaware. Each party hereby irrevocably waives, to the
fullest extent permitted by law, (a) any objection that it may now or hereafter have to laying
venue of any suit, action or proceeding brought in such court, (b) any claim that any suit, action
or proceeding brought in such court has been brought in an inconvenient forum, and (c) any defense
that it may now or hereafter have based on lack of personal jurisdiction in such forum.
28. Fees and Expenses. Regardless of whether the transactions contemplated by this
Agreement are consummated, Sun and GPI each shall pay their respective fees and expenses in
connection with the transactions contemplated by this Agreement.
29. No Third Party Beneficiaries. The terms of this Agreement are for the sole benefit of
the parties hereto and their respective heirs, executors, administrators, legal representatives,
successors and assigns, and they shall not be construed as conferring any third-party beneficiary
or any other rights on any other persons.
30. United Nations Convention Not Applicable. It is specifically agreed that this
Agreement will not be covered by nor construed in accordance with the terms of the United Nations
Convention on Contracts for the International Sales of Goods.
31. Confidential Agreement. Each of the parties agrees that the terms and conditions of
this Agreement and the information related to each party exchanged in connection with the
performance of this Agreement (collectively, the “Confidential Information”) shall be
treated as
16
confidential and proprietary to each party, respectively. Accordingly, neither party shall
disclose any Confidential Information to any person without the express written consent of the
other party, except that each party shall be permitted to disclose Confidential Information to
those of its legal counsel, advisors, representatives and employees that need to be familiar with
such information in connection with such party’s performance of the Agreement and who are informed
of such information’s confidential nature. Notwithstanding the foregoing, a party may disclose
Confidential Information, if (i) in the reasonable opinion of its legal counsel the party is
compelled to do so by any applicable legal requirement, including without limitation the Securities
Act of 1934, as amended, and the rules and regulations promulgated thereunder; provided that such
party will have afforded the other party reasonable opportunity to obtain an appropriate protective
order or other satisfactory assurance of confidential treatment at such other party’s expense and
(ii) such party may not disclose any Confidential Information other that which it is legally
compelled to disclose.
[Signatures appear on following page.]
17
IN WITNESS WHEREOF, the parties have caused this Agreement to be effective as of the date
above first written.
Graphic Packaging International, Inc.
/s/ Xxxxx X. Xxxxxxxx
|
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Xxxxx X. Xxxxxxxx
|
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President and Chief Executive Officer
|
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June 1, 2009
|
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Sun Chemical Corporation |
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/s/ Xxxxx Xxxx
|
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Xxxxx Xxxx
|
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President, North American Inks
|
||
June 1, 2009
|
[Signature
page — Supply Agreement]
