This Market Alliance Agreement ("Agreement") is hereby entered into as of February 27, 2009, (hereinafter the “Effective Date”) by and between
Exhibit 10.1
This
Market Alliance Agreement ("Agreement") is hereby entered into as of February
27, 2009,
(hereinafter
the “Effective Date”) by and between
E. I. du
Pont de Nemours and Company,
through
its Packaging & Industrial Polymers business,
Barley
Mill Plaza Building 26
4417
Lancaster Pike
Wilmington,
Delaware 1988)
(hereinafter
known as “DuPont” or “Seller”)
and PGT
Industries, Inc. (hereinafter known as “PGT” or “Buyer")
of 0000
Xxxxxxxxxx Xxxxx, Xxxxxxx, XX 00000
DuPont
and Buyer are hereinafter collectively referred to as the “Parties” and
individually as a “Party.” Intending to be legally bound, Buyer
agrees to purchase from DuPont and DuPont agrees to sell to Buyer pursuant to
the following conditions:
1. DEFINITIONS. The Parties agree
that following terms shall have the meanings ascribed below:
“Product” – means SentryGlas®
Plus, ionoplast structural interlayer produced by DuPont and sold pursuant to
this Agreement.
“Total Interlayer” – means
rolls or sheets of polyvinyl butyral produced by any entity (including DuPont)
and ionoplast structural interlayer produced by DuPont.
“Material Obligations” mean
Buyer’s obligations specifically described on Attachment F.
2. SCOPE. The
Parties agree and acknowledge that the sale of Product to Buyer pursuant to this
Agreement is strictly for usage and production at its glass laminating
facilities within the United States. The Parties also agree to review
the Material Obligations on a quarterly basis.
DuPont
CONFIDENTIAL
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3.
PRODUCTS/QUANTITY. DuPont shall sell and Buyer shall purchase
the following minimum amounts of Product in accordance with the terms and
conditions of this Agreement. Buyer intends to buy its Product from
DuPont in accordance with the volumes stated in the tables below:
|
Quarter
|
Product
Purchases as % of Buyer’s Total Interlayer Purchase
(90
mil square foot equivalent)
|
|
1Q09
|
13%
|
|
2Q09
|
13%
|
|
3Q09
|
18%
|
|
4Q09
|
22%
|
|
Year
1
|
17%
|
|
Year
|
Product
Purchases as % Buyer’s of Total Interlayer Purchase
(90
mil square foot equivalent)
|
|
2009
|
17%
|
|
2010
|
25%
|
|
2011
|
35%
|
At
DuPont’s sole discretion, Buyer’s purchase requirement obligations may be
audited by DuPont or a mutually agreeable third party. If Buyer fails
to purchase the minimum annual amounts set forth above for any year during the
Term of this Agreement, Buyer shall pay DuPont a shortfall payment calculated as
follows (hereinafter, “Shortfall Payment”):
{[(Minimum % of Total Interlayer
Purchase for the corresponding year) minus (actual% of Total Interlayer
Purchase) divided by 100] multiplied by Total Interlayer in square feet purchased by Buyer for the
corresponding year)} = Shortfall
Jan
1-June 30, 2009:
Shortfall
multiplied by $0.15 = Shortfall Payment
($3.00/ft2 x 5% discount =
$0.15/ft2)
June
30-December 31, 2009, 2010 & 2011 Shortfall multiplied by $.45 = Shortfall
Payment
($3.00/ft2 x 15% discount =
$0.45/ft2)
[e.g., If
Buyer purchased 23% of total interlayer purchases instead of 25% in 2010 and the
total interlayer purchase was 1,000,000 square feet, the Shortfall would be
20,000 square feet and the Shortfall Payment to DuPont would be
$9000]
The
Shortfall Payment shall be due and payable each year for the preceding year no
later than January 30.
DuPont
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4. TERM OF
CONTRACT.
(a) This Agreement shall be
effective three years from the date first above written (hereinafter “the
Term”). At the end of the Term, this Agreement may continue month to
month until either party provides the other thirty (30) days written
notice.
(b) In
the event either party defaults because of failure to meet a material obligation
hereunder, the non-defaulting party will provide the other party thirty (30)
days written notice and an opportunity to cure such default; if the default is
not cured within sixty (60) days, the Parties shall refer the dispute to an
upper management representative from both Parties for good faith
resolution. Should ninety (90) days elapse after the initial default
notice date and the default still has not been cured, the non-defaulting party
may terminate this Agreement,
5. PRICE. Buyer
shall pay DuPont the prices listed in Attachment B for the Products it purchases
from DuPont.
6. EXTENDED
WARRANTY. DuPont agrees for the product purchased during the
term to provide Buyer the extended warranty package described in Attachment C
provided however, Buyer meets the following criteria and requirements: (i) Buyer
will fulfill DuPont Warranty Qualification requirements detailed in Attachment
E, (ii) Buyer shall provide full pass through warranty benefits to Buyer’s
customers and (iii) Buyer shall comply with DuPont Branding and Trademark
License detailed in Attachment D.
7. BRANDING AND TRADEMARK
LICENSE. In further consideration for entering into this
Agreement, the Parties agree to enter into a Branding and Trademark License
Agreement substantially in the form attached hereto as Attachment
D. Buyer shall permanently xxxx each glazing unit with SentryGlas®
Plus and attach a removable label supplied by DuPont as described in the
Trademark License Agreement.
8. TERMS OF
PAYMENT. Buyer shall pay DuPont for Products within thirty
(30) days of the date of DuPont’s invoice.
9. DELIVERY TERMS.
(a.) Delivery
will be made within the 48 contiguous United States
FOB. Transportation will be by method, route and carrier selected by
DuPont; Buyer to bear the excess cost of any alternate method, route, or carrier
selected by Buyer.
10. MARKETING
PROGRAM. DuPont will provide financial contribution toward
product testing up to a maximum of 5% of SentryGlas® Plus net sales to Buyer and
Buyer will match or exceed this contribution for year 1 and year 2 of the
contract.
|
11.
|
SUPPLY
CHAIN /OPERATIONAL
EXCELLENCE/TECHNOLOGY.
|
(a) DuPont and Buyer agree to cooperate
and work together in order to establish an efficient and cost-effective supply
chain. Each Party agrees to identify resources to optimize supply
chain and inventory efficiency and cost effectiveness within one (1) month after
the Effective Date of this Agreement.
(b) DuPont agrees to provide training
to BUYER for the Warranty Qualification. Such training will include one
professional at no charge per plant site within the first ninety days of this
Agreement. Both Parties agree to mutually develop a priority list of operational
cost reduction and quality improvement projects (e.g. cutting yield
improvements, lamination yields, lamination safety). DuPont and Buyer
agree to review progress on a semi-annual basis. The overall
objective of this process will be to reduce overall cost of manufacturing for
laminated glass with DuPont SentryGlas® Plus. Each party agrees to
indentify resources and assign personnel to develop guidance for lower
manufacturing cost at Buyer’s facility within one (1) month after the Effective
Date of this Agreement.
DuPont
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(c) Both parties agree to engage in
discussions about new applications and processes needed in support of growth and
to facilitate annual business strategy.
12. USER
PROTECTION. Buyer acknowledges that it has received and is
familiar with DuPont’s labeling and literature concerning the Products and will
communicate such information to its employees who handle, use, or process such
Products.
13. ENTIRE
AGREEMENT. This Agreement along with DuPont’s terms and
conditions for sale of products constitute the entire contract between the
Parties regarding the subject matter described herein. The terms and
conditions for sale are attached hereto and marked as Attachment
A. There are no other agreements, warranties, terms or conditions,
expressed or implied, between the Parties.
14. ASSIGNMENT/AMENDMENT/WAIVER/
TRANSFER OF ASSETS.
(a)The
rights and obligations covered herein are personal to each Party hereto, and for
this reason neither party may assign this Agreement in whole or in part; nor
shall either party subcontract any of its obligations hereunder without the
prior written consent the other. This Agreement may not be
amended except by in writing signed by both Parties. No waiver of any
provision of this Agreement by either Party shall be enforceable against that
Party unless it is in writing and signed by both Parties.
(b) PGT shall notify DuPont in writing,
as soon as is legally permissible, if, during the term of this Agreement, either
party reasonably expects to consolidate with or merge with another corporation
or to sell, assign, or otherwise dispose of substantially all of its assets used
to perform under this Agreement; over twenty percent (20%) of
its ownership or controlling interest (whether in the form of stock or
otherwise); If such occurrence or proposed occurrence is unacceptable to DuPont
because the third party merging or purchasing PGT is an adverse party to
DuPont’s Glass Interlayer Business , DuPont may terminate
this Agreement upon written notice to the other party.]
15. BANKRUPTCY/
REORGANIZATION. In the event either
Party is found to be insolvent, has a petition in bankruptcy filed against it,
files a petition in bankruptcy or petitions for reorganization, this Agreement
will automatically terminate as to future obligations. The party who
is insolvent or who is under bankruptcy will still be obligated to perform all
material obligations under this Agreement.
16. NOTICES. All
notices required hereunder shall be sent by United States Postal or a recognized
carrier to the Party to be notified at the addresses specified
above.
17. HARDSHIP. The
Parties agree that it is not their intention that the effect or consequences of
entering into this Agreement should be to cause hardship but, despite the
Parties’ best intent and as a result of changes in economic or market
conditions, such hardship may be caused to either Party in complying with the
terms of this Agreement at the negotiated prices. Among other items
that may qualify, the Parties agree that hardship for DuPont will include
Ethylene prices, measured by CMAI Contract Net Prices, increases more than thirty percent (30
%) above January 22, 2009 level for sustained period of greater
than six (6 ) weeks. If such hardship arises, either Party
may give notice in writing that it wishes to review the provisions of this
Agreement in light of such changed economic or market conditions. The
Parties agree that within thirty (30) days of the giving of such notice by
either Party, the Parties shall negotiate in good faith modifications to this
Agreement to relieve such hardship in a manner equitable to both
Parties. If, within forty-five (45) days after giving of such notice,
the Parties are unable to agree upon modification to this Agreement, either
Party may refer the dispute to an upper management representative from both
Parties. If thirty (30) days after the referral date, the Parties are
still unable to resolve the dispute, the dispute shall be referred to
arbitration and settled by binding arbitration in accordance with the rules of
the American Arbitration Association.
DuPont
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18. GOVERNING
LAW. This Agreement shall be governed by the laws of the State
of Delaware.
19.
CONFIDENTIALITY. Any knowledge or information disclosed
between Buyer and DuPont which
relates
in any way to the Products and services of this Agreement, the prices contained
within the Agreement, or the fact of this Agreement, unless otherwise agreed to
in writing, shall be deemed proprietary and confidential and shall not be
disclosed by either Party to any third party and such shall remain the property
of DuPont. Both Parties shall keep confidential any technical,
process, or economic information derived from the other in connection with this
Agreement and shall not divulge such information, directly or indirectly, for
the benefit of any Party unless previously agreed to in writing by the other
Party.
PGT’S
ACCEPTANCE: E.
I. DU PONT DE NEMOURS AND COMPANY
PGT
INDUSTRIES PACKAGING
& INDUSTRIAL POLYMERS
By: /s/ Xxxx Xxxx By:
/s/
Xxxxxxx X. Xxxxx
Title: Director of Strategic
Purchasing Title: VP/GM –
P&IP
Printed
Name: Xxxx
Xxxx Printed
Name: Xxxxxxx X.
Xxxxx
Date:
February 27,
2009 Date:
February 27,
0000
XxXxxx
XXXXXXXXXXXX
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