CERTAIN INFORMATION HAS BEEN DELETED FROM THIS EXHIBIT AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL
TREATMENT UNDER RULE 24B-2.
EXHIBIT 10.63
-------------
PARTS AND ASSEMBLIES
PURCHASING CONTRACT
This is a Parts and Assemblies Purchasing Contract ("Contract") dated and
effective the 26th day of September, 2003 (the "Effective Date"), by and between
[***], a [***] corporation, acting through its [***], with offices at [***]
hereinafter referred to either individually or sometimes collectively as
"Buyers") and PentaPure Incorporated, with offices at Xxxxx Xxxx, Xxxxxxxxx,
00000, ("PentaPure").
The following are the terms and conditions under which PentaPure shall sell
certain parts and/or assemblies (further defined below) and Buyers shall
purchase these parts and/or assemblies for incorporation into refrigeration
products.
1. PRODUCTS
During the Contract Term (defined in section 2, below), and subject to the
provisions of this Contract, Buyers shall purchase from PentaPure [***] certain
water filtration parts and systems, consisting of [***] for use in [***]
manufactured by Buyers, defined by the part numbers set out in attached Exhibit
A and incorporated herein by reference (the "Products").
2. TERM
This Contract shall commence on September 26, 2003 (the "Effective Date"), and
shall end on September 25, 2008, unless sooner terminated in accordance with the
provisions hereof (the "Contract Term"). This Contract may not be amended or
extended except by written agreement of the parties hereto.
3. PRICE
The pricing set out in attached Exhibit A shall be firm, fixed for the Contract
Term, except for such adjustments to pricing as are allowed by the provisions of
this Contract. PentaPure shall provide Exhibit A pricing to Buyers, business
components of [***], and any purchaser which uses Products for incorporation
into appliances or assemblies manufactured for Buyers.
4. VOLUME [***]
During the Contract Term, Buyers shall purchase from PentaPure 100% of the
Buyers' requirements for Products in Exhibit A, manufactured in accordance with
the specifications of Buyers in all respects, and further subject to PentaPure's
compliance with the following provisions. [***] shall not be in violation of
this requirements provision by purchasing minimal quantities for the reason of
qualifying an alternate supplier in anticipation of expiration of the Contract
Term.
[***]
[***]
(C) (i) New [***] - During the Contract Term, a Buyer or Buyers may wish to
introduce [***], which is substantially different from existing Products and
does not contain assemblies or components listed in Exhibit A ("New Product").
If at any time during the Contract Term a Buyer or Buyers decide to introduce a
New Product, the Buyer or Buyers agree to introduce the New Product with
PentaPure, provided that:
[***]
(ii) If, within [***] of receipt of a written request by Buyers to supply the
New Products, Pentapure fails or refuses to notify Buyers, that it will meet
these requirements, Buyer or Buyers shall be free to purchase such New Product
from any other supplier. The Contract shall remain in effect with respect to
existing Products for the remainder of the Contract Term.
(iii) Any New Products agreed upon by the parties shall be added to Exhibit A by
amendment, whereupon all [***] shall apply to New Products, unless otherwise
agreed upon in writing by the parties.
5. PAYMENT TERMS
All payments for Products by [***] shall be made by Electronic Funds Transfer
within [***] from date of receipt of Products. Payments for Products by [***]
shall be by wire transfer within [***] days from date of receipt of Products.
These are the current standard payment terms by Buyers to suppliers for
purchases. During the Contract Term, payment terms hereunder shall change with
any changes to [***] standard payment terms, without discounts.
6. HEADINGS
The section, paragraph and subject headings in this Contract are for convenience
of reference only and shall not be considered in any question of interpretation
of this Contract and shall not be deemed to alter or affect any provision of
this Contract.
2
7. NOTICES
Any notice or communication required or permitted to be given hereunder shall be
sufficient if in writing and (i) delivered in person or by a reputable overnight
courier service to the other party's address below, (ii) sent by confirmed
facsimile transmission during normal business hours to the fax numbers listed
below, or (iii) sent by registered or certified first class mail to the other
party's address below, postage prepaid and return receipt requested. Each notice
shall be deemed given on the date delivered when so delivered personally, on the
transmission date when sent by confirmed facsimile transmission, on the date
delivery is guaranteed by a representative of such service when sent by
overnight courier service, and if mailed, four days after date of deposit in the
mail. The parties' respective addresses for notices are as follows:
To [***] :
[***]
AND
[***]
To PentaPure:
Xxxxx Xxxxx
Vice President
PentaPure Incorporated
0000 Xxxxxx Xxxx
Xxxxx, XX 00000
8. [***]
9. CONDITIONS OF PURCHASE AND COMPLETE AGREEMENT
This Contract, together with the Exhibits attached hereto, and the JDA sets
forth the entire agreement between the parties regarding the subject matter
hereof and supersedes any other prior or contemporaneous agreements, written or
oral, between the parties. The Conditions of Purchase in attached Exhibit B
shall apply to all transactions hereunder to the extent they do not conflict
with the foregoing terms of this Contract. In the event of a conflict, the
foregoing terms of this Contract shall be controlling. This Contract may not be
amended or extended except by written agreement signed by all of the parties
hereto and may not be amended by subsequent invoices, purchase orders or printed
terms contained therein. Any terms and conditions contained in an acknowledgment
of
3
a Purchase Order issued hereunder, or with delivery of Products, which are
different from or in addition to this Contract, shall not be binding upon
Buyers.
10. ASSIGNMENT
Assignment by PentaPure of this Contract or any interest therein, including any
payment to become due hereunder, without the prior written consent of Buyers,
shall be prohibited and any attempt by PentaPure to assign any of its rights or
obligations hereunder or derived herefrom without the prior written consent of
Buyers shall be null and void and of no force or effect; provided, however, that
this Contract may be assigned or transferred in connection with a sale of
substantially all of the assets or business of PentaPure to a non-competitor of
Buyers upon prior written notice. Buyers may assign this Contract at any time.
This Contract shall be binding upon and inure to the benefit of the successors
or permitted assigns of each of the parties and specifically requires any
successor of a majority of the assets or stock or other assignee of PentaPure's
business to expressly assume and agree to perform this Contract in the same
manner and to the same extent that PentaPure would be required to perform if no
succession or assignment had taken place, unless such permitted assignment is a
competitor of Buyers in the appliances market. In that event, PentaPure must
obtain Buyers' written consent of the assignment of the Contract.
WHEREFORE, the parties have executed this Contract to be effective September 26,
2003, but actually signed on the dates below.
[***] PENTAPURE INCORPORATED
By: /s/ Xxxxx Xxxxxxxxx
-------------------------------------
Xxxxx Xxxxxxxxx
President/C.E.O.
Date: 10-31-03
-----------------------------------
4
EXHIBIT A
PRODUCTS AND PRICING
PART NUMBER DESCRIPTION PRICE
[***] [***] [***]
[***] and PentaPure agree to use their best efforts to identify and implement
cost saving productivity projects for the part numbers listed in the [***]
headings, above. [***]. All new Products which may result from this process
shall be added to Exhibit A. [***]
[***] shall not apply to [***] unless otherwise agreed upon by the parties in
writing.
[***]
5
