EXHIBIT 10.4
PURCHASE AGREEMENT
THIS AGREEMENT, is made and entered into as of the 15th day of September,
1994, to be effective on the 1st day of October, 1994 ("Effective Date"), by and
between MISSISSIPPI CHEMICAL CORPORATION, a Mississippi corporation, with its
principal place of business at Xxxx Xxxxxx Administration Building, Highway 49E,
Yazoo City, Mississippi 39194-0388 ("MCC"), and AIR PRODUCTS AND CHEMICALS,
INC., a Delaware corporation, with its principal place of business at 0000
Xxxxxxxx Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxxxxxx 00000-0000 (collectively with its
affiliates referred to as "Air Products").
WHEREAS, Air Products produces ammonium nitrate prills which it sells to
agricultural users; and
WHEREAS, Air Products has made a unilateral decision to continue operating
its production facility but to exit the business of marketing its ammonium
nitrate prills; and
WHEREAS, MCC desires to purchase Air Products' ammonium nitrate prills;
NOW, THEREFORE, in consideration of the mutual benefits to be derived, the
parties agree as hereafter set forth.
1. DEFINITIONS
1.1 "Contract Year" shall mean initially a period beginning on
October 1, 1994, and running through June 30, 1995, and shall thereafter mean a
twelve (12) month period beginning July 1 of each calendar year.
1.2 "Agricultural Product" shall mean ammonium nitrate prills
produced by Air Products at its Pace, Florida, facility. This Agreement
envisions that the volume of Agricultural Product produced at Air Products'
Pace, Florida, facility will remain the same throughout the term of this
Agreement, excepting nominal and incremental production increases resulting from
increases in operating efficiencies.
1.3 "Variable Netback" with respect to ammonium nitrate prills shall
mean the excess of (i) subparagraph 1.3.1 over (ii) the sum of subparagraphs
1.3.2 and 1.3.3, as each of these are described below.
1.3.1 "Ammonium Nitrate Prills Revenue" shall mean the
revenues realized for ammonium nitrate prills sold by MCC.
1.3.2 "Direct Costs" shall mean the weighted average per-ton
costs incurred in connection with the sale of ammonium nitrate prills for such
items as, including but not being limited to, discounts; freight allowances;
customer truck fees; freight into storage; storage costs; bag costs; bagging
charges; delivery expenses; handling charges; rail delivery allowances; weighing
fees; pneumatic truck charges; direct transfer fees; special equipment fees;
wharfage; railcar lease costs and other such expenses of delivery directly
relating to the sale of ammonium nitrate prills by MCC as they may arise.
1.3.3 "Adjustments to Netback" shall mean any actual,
projected or accrued costs incurred in the normal course of business and
attributable to that month which are not Direct Costs, including but not being
limited to, shrinkage projection; interest cost resulting from extended terms or
slow-paying accounts; losses resulting from nonperforming accounts on all
ammonium nitrate prills; emergency storage costs; losses for which there is no
apparent responsible third party (examples of this include, but are not limited
to, losses occurring during transit not attributable to product quality problems
or any apparent problem with carrier's equipment and losses occurring during
storage not attributable to product quality problems or any apparent problem in
handling or storage facility); interest on ammonium nitrate xxxxx inventory; and
taxes paid by MCC which are assessed on the sale and/or distribution of ammonium
nitrate prills.
1.3.3.1 It is agreed that storage costs and Adjustments
to Netback when calculated on a per-ton basis may be volume sensitive over a
period of time exceeding one (1) month. MCC will make every effort to
accurately project such volume-sensitive costs on a monthly basis and will use
this projection in the Variable Netback calculation. MCC will endeavor to
estimate and adjust these costs monthly. However, at the end of each Contract
Year, a final adjustment will be made based on actual costs.
1.3.3.2 Any interest costs assessed under the provisions
of this paragraph shall be at Chase Manhattan's Banker's Prime Lending Rate for
the relevant period.
1.3.4 In order to determine Variable Netback, the following
costs shall not be subtracted as an adjustment for calculating Variable Netback:
any costs which are incurred by MCC or Air Products associated with the general
administration or operation of their respective facilities, including but not
being limited to, costs incurred for such items as production; in-plant storage;
switching charges; in-plant maintenance; general and administrative expenses;
administrative staff or plant labor overhead; or taxes levied on the manufacture
of ammonium nitrate prills. A sample calculation of Variable Netback is set
forth in Exhibit A incorporated herein.
1.4 "Cash Cost" shall mean Air Products' projected cash cost of
producing Agricultural Product (raw material and conversion) provided by Air
Products to MCC for each calendar quarter, not to exceed current Price.
1.5 "Discount" shall mean the (confidential treatment has been
requsted) per-ton ($confidential treatment has been requested/Ton) reduction on
MCC's purchase price of Air Products' Agricultural Product plus escalation on
the first (confidential treatment has been requested) per-ton ($ confidential
treatment has been requested/Ton) after the end of the third Contract Year in
accordance with the annual change in the United States Consumer Price Index for
all urban consumers, using the period July 1, 1996, to June 30, 1997, as the
base year. In no event shall the Discount fall below (confidential treatment
has been requested) per-ton ($ confidential treatment has been requested/Ton).
1.6 "Price" shall mean Variable Netback calculated on a per-ton
basis minus Discount.
1.7 For the purposes of this Agreement, reference to ammonium
nitrate prills shall mean, in all cases, fertilizer grade prilled ammonium
nitrate intended for agricultural use.
1.8 "Agreement" shall mean this Purchase Agreement and all of its
Exhibits.
2. TERM
2.1 The term of this Agreement shall be a period of fifteen (15)
years beginning on the Effective Date and automatically extending thereafter for
additional five (5) year periods, unless terminated by notification from either
party to the other party not less than one (1) year before the expiration of the
initial term or one (1) year before the expiration of any five (5) year period,
unless terminated sooner by either party as provided by another provision of
this Agreement.
3. SALE AND PURCHASE OF AGRICULTURAL PRODUCT
3.1 Subject to the provisions of paragraph 3.4, during the term of
this Agreement, Air Products shall sell to MCC, and MCC shall purchase from
Air Products, all of the Agricultural Product produced by Air Products at its
Pace, Florida, facility.
3.2 Upon execution of this Agreement, Air Products agrees to
provide MCC with a forecast of Agricultural Product production for each month
through June 30, 1995. At the end of each month thereafter, Air Products will
provide a three (3) month rolling forecast. Air Products will use its
reasonable efforts to produce the quantity of Agricultural Product provided in
the month-end forecast for the following month.
3.3 On or before June 30 of each year, Air Products shall provide
MCC with a good-faith forecast of its anticipated production of Agricultural
Product in the twelve (12) month period beginning July 1. At MCC's request,
Air Products will also provide an outlook as to the direction its Agricultural
Product production is likely to take over the course of the next two (2) years.
3.4 On or before the first day of each calendar quarter, the
parties will discuss purchases hereunder and Air Products' production estimates
for the immediately following calendar quarter. In the event that MCC
determines, in its sole discretion, that it will be unable to make arrangements
for the marketing, in a commercially reasonable manner, of the entire production
of Agricultural Product for such calendar quarter, then it shall advise Air
Products of the quantity of Agricultural Product that it can efficiently market
and that it will purchase from Air Products during such calendar quarter. To
the extent that the production of Agricultural Product during a calendar quarter
exceeds MCC's commitment to purchase Agricultural Product during such calendar
quarter, MCC shall release Air Products from its obligation to sell the excess
Agricultural Product during the quarter to MCC, and Air Products shall have the
right to sell the excess Agricultural Product to parties other than MCC.
4. SHIPMENTS
4.1 Air Products will provide rail siding space for handling full
and empty railcars at no cost to MCC. MCC acknowledges that Air Products' rail
siding space is limited and is not designed for long-term storage, and will make
reasonable efforts to minimize the on-site number of railcars, in no event to
exceed forty (40) railcars without Air Products' specific approval.
4.2 Air Products will be responsible for the loading of
Agricultural Product at the Pace, Florida, facility. MCC will be responsible
for the loading of Agricultural Product at all other locations.
4.3 MCC will provide scheduling of all railcars and bulk trucks
and bills of lading for all shipments, rail and truck. Air Products agrees to
accommodate MCC's terminal and printer at the Pace, Florida, facility for this
purpose. MCC shall also provide communication with carriers and shipment
tracking. Air Products shall electronically report to MCC weights and vehicle
numbers for any shipments leaving the Pace, Florida, facility not later than the
next business day following the shipment.
4.4 The party responsible for loading under paragraph 4.2 shall be
responsible for inspection and acceptance or rejection of any railcar or truck
prior to loading. The party responsible for loading shall also be responsible
for complying with all applicable laws and regulations with respect to the
loading for shipment and shipment of the product.
5. DELIVERY
5.1 Title and risk of loss to Agricultural Product shall pass to
MCC upon Air Products' delivery of Agricultural Product into railcar or truck of
MCC or its customer at the Pace, Florida, facility.
6. PRICING AND PAYMENT
6.1 Payment to Air Products from MCC with respect to sales in any
calendar month is calculated by (i) multiplying (confidential treatment has been
requested) times the number of tons of Agricultural Product shipped from Pace,
Florida, directly to MCC's customers and shipped from MCC's inventory to MCC's
customers during the month, (ii) plus (confidential treatment has been
requested) times the number of tons of Agricultural Product shipped into MCC's
inventory during the month, and (iii) minus credit for the weighted average
(confidential treatment has been requested) previously paid on the tons of
Agricultural Product shipped from MCC's inventory to MCC's customers during the
month. An example of the payment calculation is included herein as Exhibit A
and Exhibit A-1.
6.2 Each month MCC shall pay for the previous month's purchases
by MCC of Agricultural Product based on shipments weighed out through truck or
rail from Pace, Florida. In no event shall there be more than twenty (20)
railcars loaded and on Air Products' property which have not been invoiced by
Air Products. MCC will provide to Air Products the data necessary for Air
Products to invoice MCC as soon as practical following month-end, but not later
than the twelfth (12th) day of the month. The sales to MCC for any given month
will be paid to Air Products by the fifteenth (15th) day of the month following
such sales. MCC will pay each invoice by electronic transfer of funds to Air
Products' account in accordance with Exhibit B, which is incorporated herein.
6.3 Air Products shall provide MCC with a copy of the current
calibration certificate for the truck scales on a quarterly basis, and shall
provide a photocopy of the rail scale calibration certificate twice per year.
6.4 MCC shall have the obligation once every twelve (12) months
during the term of this Agreement, and for twenty-four (24) months following
termination, to cause its independent public accountants to audit MCC's books
and records insofar as they relate to the calculation of the Variable Netback
and to express an opinion of its auditors that the Variable Netback has been
calculated in accordance with this Agreement. An adjustment shall be made as
necessary to reflect any corrections during the previous twelve (12) months, or
during the last twelve (12) months of this Agreement if terminated, as
determined by the audit.
7. TAXES
7.1 Each party shall bear and pay all federal, state and local
taxes based upon or measured by its net income or net worth, and all taxes, fees
or other charges based upon its corporate existence or its general right to
transact business.
8. TECHNOLOGY TRANSFER
8.1 MCC will provide to Air Products technical information related
to the manufacture of Agricultural Product as set forth in Exhibit E hereto and
to the extent necessary to allow Air Products to manufacture Agricultural
Product meeting the specifications set forth in Exhibit F to this Agreement. In
the event of a conflict between any provision of this Agreement and any
provision of Exhibit E, "Technology Transfer," the provisions of Exhibit E will
control with respect to the technology transferred from MCC to Air Products.
8.2 Air Products will undertake to adopt the technology
transferred by MCC pursuant to Exhibit E, "Technology Transfer," for the purpose
of achieving market compatibility between Agricultural Product and AMTRATE(R)
produced by MCC.
8.3 The implementation of the technology described in Exhibit E,
"Technology Transfer," is not anticipated to cost more than Five Hundred
Thousand and 00/100 Dollars ($500,000.00). In the event that the cost of
implementation exceeds this amount, then Air Products may choose to either
expend such amounts as are necessary to install the technology or terminate this
Agreement, at its sole and exclusive option. In the event that Air Products
chooses to terminate the Agreement, then it shall terminate effective
ninety (90) days from the date of Air Products' original notice to MCC under
this paragraph 8.3.
8.4 In the event that Air Products is unable to meet the
specifications set forth in Exhibit F following installation of the technology
described in Exhibit E, Air Products shall have the right to install additional
equipment or make such other modifications as are necessary to meet such
specifications by March 30, 1995. In the event that Air Products elects not to
make such installations or modifications as are necessary to meet the
specifications, then MCC at its sole and exclusive option may modify the
specifications or terminate this Agreement effective June 30, 1995.
8.5 During the course of this Agreement it may become necessary to
make revisions in the specifications set forth as Exhibit F. In such event, MCC
will notice Air Products of the proposed revisions and, for a period of ninety
(90) days, will discuss with Air Products the changes necessary to effectuate
such revisions. Air Products will in no event be required to install additional
equipment or make modifications to meet such revised specifications; however,
upon Air Products' decision not to adopt the revised specifications, MCC may, at
its option, terminate this Agreement and the associated Technology Transfer
effective one (1) year from the date of the original notice to Air Products of
the proposed revisions under this paragraph 8.5.
9. WARRANTY
9.1 Air Products warrants it has title to Agricultural Product
delivered hereunder and may properly sell the same and that such Agricultural
Product shall conform to the specifications set forth in Exhibit C, which is
incorporated herein until such time that MCC's proprietary coating technology is
implemented. Upon the implementation of the coating technology, the
specification attached as Exhibit F will be the specification for Agricultural
Product and is intended to be the same specification as MCC's current production
specification for AMTRATE(R). Air Products shall maintain data on any quality
testing of any Agricultural Product and shall provide certificates as to quality
to MCC upon reasonable request. Air Products shall retain daily production
samples for ninety (90) days. MCC, at its expense, shall have the right to test
the Agricultural Product for the purpose of determining compliance with the
specifications.
10. STORAGE
10.1 Air Products shall make available in-plant storage for the
Agricultural Product (consisting of not less than two thousand five
hundred (2,500) tons of bulk ammonium nitrate storage and twenty
thousand (20,000) tons of ammonium nitrate solutions storage as 100% ammonium
nitrate) at no cost to MCC, and the in-plant storage costs will not be a factor
in calculating Variable Netback. Likewise, MCC shall make available in-plant
storage for its ammonium nitrate prills at Yazoo City, Mississippi, with no
related cost factor attributable to the Variable Netback.
11. ASSIGNMENT OF CONTRACTS
11.1 In consideration for MCC's agreement to purchase Air Products'
production of Agricultural Product during the term of this Agreement,
Air Products agrees to use all reasonable efforts to assign to MCC, and MCC will
accept assignment of, each of its contracts with its customers, (confidential
treatment has been requested). In the event that any customer withholds consent
to an assignment of its contract with Air Products, Air Products will withhold
such tons under this Agreement as are necessary to supply Air Products'
obligation to such customer under its contract with such customer and shall
immediately notify the customer of Air Products' intent to terminate its
contract at the earliest allowable date.
12. FORCE MAJEURE
12.1 Neither party shall be liable for any failure or delay in
performance hereunder (except for the payment for Agricultural Product
previously delivered hereunder) which may be due to Force Majeure.
12.1.1 For the purposes hereof, the term Force Majeure means
a condition or event occurring beyond the control of the party suffering the
event which prevents performance under this Agreement. Force Majeure includes,
without limitation, any war (whether declared or undeclared), fire, flood,
lightning, earthquake, storm, or act of God; mechanical breakdown or partial or
total destruction of the manufacturing facility; any strike, lockout or other
labor difficulty, civil disturbance, riot, sabotage, accident or explosion; any
official order, directive or industry-wide request by any governmental authority
which, in the reasonable judgment of either party makes it necessary to cease or
reduce production or other performance under this Agreement; any inability to
secure necessary fuel, power, equipment, transportation or raw materials,
including the inability to secure any such item by reason of allocations
promulgated by any governmental authority; or Air Products' operating costs for
producing Agricultural Product exceeds the revenues that it receives therefor.
12.2 Performance under this Agreement may be suspended during the
period of any such Force Majeure.
12.2.1 The party affected by an event described herein shall,
promptly upon learning of such event and ascertaining that it has or will affect
its performance hereunder, give notice to the other party, stating the nature of
the event, its anticipated duration and any action being taken to avoid or
minimize its effect. Any Force Majeure event shall, so far as reasonably
possible, be remedied with all reasonable dispatch, provided that the settlement
of strikes, lockouts, industrial disputes, or disturbances shall be entirely
within the discretion of the affected party.
12.2.2 Performance under this Agreement shall resume to the
extent made possible by the end of the Force Majeure event.
13. EVENTS OF TERMINATION
13.1 Air Products may suspend this Agreement at any time during the
initial term, or during any extension thereof, on six (6) months' notice to MCC
in accordance with section 18 that it will cease production of Agricultural
Product, in which case the suspension will be effective when actual production
ceases. MCC may choose to terminate this Agreement, at its option, should Air
Products' production of Agricultural Product not resume after a period of six
(6) months. Neither party is required to submit to the provisions of section 16
regarding arbitration to exercise its options under this paragraph.
13.2 In the event that MCC is unable to earn a quarterly profit
from the sale of Agricultural Product and the condition is expected to continue,
MCC and Air Products shall negotiate in good faith to alleviate the hardship.
In the event that the parties are unable to agree within a period of ninety (90)
days on alternative arrangements which alleviate the hardship condition, the
Agreement may be terminated one (1) year following the date of the original
notice to Air Products of hardship under this subparagraph 13.2. Neither party
is required to submit to the provisions of section 16 regarding arbitration to
exercise its options under this paragraph.
13.3 Following receipt of a notice of suspension or termination
under any subparagraph of this section 13, from either Air Products or MCC, MCC
will make no commitment for sales of additional tons of Agricultural Product
beyond the anticipated suspension or termination date of this Agreement; and
Air Products hereby agrees to satisfy any Agricultural Product commitments made
by MCC prior to MCC's receipt of notice of termination, up to commitments made
for the current fertilizer year, but in no event less than a period of three (3)
months.
14. LIABILITY
14.1 Air Products' sole liability, and MCC's sole and exclusive
remedy, for Air Products' failure to deliver Agricultural Product shall be the
difference between the price of such quantity of Agricultural Product under this
Agreement and the higher price MCC necessarily pays to a third party to obtain
product required in replacement.
14.2 Air Products' sole liability, and MCC's sole and exclusive
remedy, for Air Products' failure to deliver Agricultural Product which conform
to the specifications in effect under Exhibit C or Exhibit F shall be
replacement by Air Products of a like quantity of conforming Agricultural
Product at no additional cost to MCC and reimbursement of any commercially
reasonable costs necessarily incurred by MCC in connection with the receipt,
storage, handling, reshipment, or disposal of the nonconforming Agricultural
Product. Any claim must be received by Air Products in writing within thirty
(30) days of the receipt by MCC or MCC's customer.
14.3 From and after January 1, 1995, for claims brought by
customers of MCC against Air Products where language disclaiming warranty and
limiting liability as described in Exhibit D was not provided by MCC to the
customer either by sales contract or by invoice subsequent to the sale, then MCC
agrees to defend and indemnify Air Products with respect to such claim. The
language set forth in Exhibit D is not currently in use by MCC and for purposes
of transition, this paragraph 14.3 will become effective for the language to be
included in all sales invoices from and after January 1, 1995, and for
contracts, shall be included in each new or renewed contract between MCC and
customers upon execution of any new contracts or renewal of an existing contract
as they arise from and after January 1, 1995.
15. CONFIDENTIALITY
15.1 MCC acknowledges and agrees that the provisions of the
1994 Confidential Disclosure Agreement between MCC and Air Products shall govern
the transfer of any confidential or proprietary business information by
Air Products to MCC in connection with this Agreement or the performance of any
rights or obligations contemplated hereunder.
15.2 Air Products and MCC each acknowledge and agree that the
provisions of the 1994 Secrecy Agreement between MCC and Air Products shall be
superseded by Exhibit E, "Technology Transfer," and that the provisions of
Exhibit E shall exclusively govern the transfer of any confidential or
proprietary technical information by MCC to Air Products in connection with this
Agreement or the performance of any rights or obligations contemplated
hereunder. Air Products and MCC each acknowledge and agree that the provisions
of Exhibit H, "Secrecy Agreement," govern the transfer of any confidential or
proprietary technical information by Air Products to MCC in connection with this
Agreement or the performance of any rights or obligations contemplated
hereunder.
16. DISPUTES
16.1 All disputes, controversies or differences between the
parties arising out of, in relation to or in connection with this Agreement, or
the breach thereof, which cannot be resolved through negotiations to the
satisfaction of either of the parties within sixty (60) days after the date one
party has notified the other party in writing of such dispute, controversy or
difference, shall be resolved by binding arbitration. Both parties shall submit
their respective positions with regard to the disputed matter in writing to an
arbitration panel consisting of three arbitrators, one of whom shall be
appointed by Air Products, one by MCC, and the third by the first two
arbitrators. If the first two arbitrators cannot agree on the appointment of a
third arbitrator, then such third arbitrator shall be a partner in one of the
"Big Six" accounting firms not employed by Air Products or MCC or any of their
respective affiliated companies (if the disputed matter is financial in nature);
an engineer or similar professional familiar with operations similar to those of
the Pace, Florida, facility (if the disputed matter is operational in nature);
or, an attorney familiar with contracts of this kind (if the disputed matter
involves an issue of contractual interpretation) appointed by the American
Arbitration Association. The arbitration shall be conducted pursuant to the
Commercial Arbitration Rules of the American Arbitration Association and shall
be held in Jackson, Mississippi. The determination of the arbitration panel
shall be final and binding on the parties hereto. Judgment upon the arbitration
panel's award may be entered in any court having jurisdiction thereof. The fees
and expenses of all arbitrators shall be paid equally by Air Products and MCC.
17. PUBLIC ANNOUNCEMENTS
17.1 Neither Air Products nor MCC or any of their respective
affiliates shall issue or make any press release, public announcement,
confirmation or other disclosure or information relating to this Agreement or
the transactions contemplated hereby, except with the prior approval of the
other party.
18. NOTICE
18.1 Any notice to be given under this Agreement shall be in
writing and shall be delivered personally or by certified mail (postage prepaid
and return receipt requested), courier or overnight delivery service (delivery
charge prepaid), or by telecopy. Any notice shall be effective only if and when
it is received by the addressee. For the purposes hereof, the addresses and
telephone and telecopier numbers of Air Products and MCC are as follows:
Air Products: Air Products and Chemicals, Inc.
Attention: Corporate Secretary
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000-0000
Telephone: 610/000-0000
Telecopier: 610/481-5765
MCC: Mississippi Chemical Corporation
Attention: Corporate Secretary
P. O. Xxx 000
Xxxxx Xxxx, XX 00000-0000
Telephone: 601/000-0000
Telecopier: 601/746-9158
19. GOVERNING LAW
19.1 This Agreement shall be governed by, construed under, and
enforced in accordance with the laws of the state of Mississippi.
20. ENTIRE AGREEMENT
20.1 This Agreement and its Exhibits constitute the entire
understanding between the parties and supersedes all prior discussions,
statements, and representations, oral or written, relating to the subject matter
of this Agreement. No amendment or modification shall be valid unless in
writing specifically referencing this Agreement and signed by a duly authorized
representative of each party. All purchase orders or purchase acknowledgments
which may be used to order or acknowledge orders for delivery of Agricultural
Product shall be deemed intended for record purposes only, and any terms or
conditions contained therein shall not serve to add to or modify the terms and
conditions of this Agreement.
21. GENERAL PROVISIONS
21.1 MCC agrees to adhere to all existing and future site safety,
hygiene and environmental regulations and policies while at the Pace, Florida,
facility.
21.2 No waiver or failure to enforce any term of this Agreement
shall effect or limit a party's right thereafter to enforce or compel strict
compliance with every term of this Agreement.
21.3 If any provision of this Agreement is held invalid by any
court of law or administrative or regulatory body, all other provisions hereof
shall continue in full force and effect.
21.4 This Agreement may not be assigned by either party without the
prior written consent of the other party. This Agreement shall inure to the
benefit of and be binding upon the successors and, if properly assigned, the
assigns of both parties.
21.5 No person not a party to this Agreement shall have any
interest in or right under this Agreement as a third-party beneficiary or
otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first set forth above.
MISSISSIPPI CHEMICAL CORPORATION AIR PRODUCTS AND CHEMICALS, INC.
By: /s/ Xxxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxxxx
President Group Vice President - Chemicals
Date: September 15, 1994 Date: September 19, 1994
EXHIBIT A
EXAMPLE BILLING
Year To Date
Ammonium Nitrate Prills Revenue $16,093,509.00
(Confidential treatment has been (Confidential
requested) treatment has
been requested)
(Confidential treatment has been (Confidential
requested) treatment has
been requested)
Variable Net-Back 12,968,645.37
Total Ammonium Nitrate Xxxxx Tons 98,509
Sold
(Confidential treatment has been (Confidential
requested) treatment has
been requested)
Confidential treatment has been (Confidential
requested) treatment has
been requested)
PRICE $122.65
Agricultural Product:
YTD Tons Sold - Direct 18,000
YTD Tons Sold from Inventory 3,337
Total Tons Sold YTD 21,337
YTD Payment Due for Agricultural $2,616,983.05
Product Sold
Credit for Previous Payments ($1,231,980.00)
Current Month Payment 1,385,003.05
Shrinkage Monthly (3,173.85) A. Exhibit A - 1
Interest Monthly (1,312.37) B. Exhibit A - 1
Payment for Tons Sold $1,380,516.83
Payment for tons Shipped to $317,385.00 C. Exhibit A - 1
Inventory
Credit for Tons Sold from Inventory ($157,239.25) D. Exhibit A - 1
Payment Due for Agricultural Product $1,540,662.58
EXHIBIT A - 1
EXAMPLE INVENTORY CALCULATION
TONS
Albany Xxxxxxxxxx Total
BEGINNING INVENTORY:
MCC Product 3,619 1,664 5,283
Agricultural Product 381 665 1,046
4,000 2,329 6,329
SHIPMENTS TO INVENTORY:
MCC product 3,000 1,500 4,500
Agricultural Product 1,900 800 2,700
4,900 2,300 7,200
TOTAL TONS AVAILABLE
MCC product 6,619 74.37% 3,164 68.35% 9,783
Agricultural Product 2,281 25.63% 1,465 31.65% 3,746
8,900 4,629 13,529
SALES FROM INVENTORY
MCC product 1,885 74.37% 1,487 68.35% 3,372
Agricultural Product 649 25.63% 688 31.65% 1,337
2,534 2,175 4,709
ENDING INVENTORY
MCC product 4,734 74.37% 1,677 68.35% 6,411
Agricultural Product 1,632 25.63% 777 31.65% 2,409
6,366 2,454 8,820
DOLLAR VALUE; AGRICULTURAL PRODUCT Total
BEGINNING $ VALUE: $44,828.46 $78,303.75 $123,132.21
SHIPMENTS TO INVENTORY $223,345.00 $94,040.00 C. $317,385.00
VALUE AVAILABLE FOR SALE $268,173.46 $172,343.75 $440,517.21
SALES FROM INVENTORY $76,302.93 $80,936.32 D. $157,239.25
ENDING INVENTORY VALUE $191,874.24 $91,406.28(1) $283,280.52
PER TON AGRICULTURAL PRODUCT INVENTORY Total
BEGINNING INVENTORY VALUE $117.66 $117.75 $117.72
SHIPMENTS TO INVENTORY
Cash Cost $117.55 $117.55
Price 122.65 122.65
Lesser of Cash Cost and $117.55 $117.55 $117.55
Price
VALUE AVAILABLE FOR SALE 117.57 117.64 $117.60
VALUE SHIPPED FROM 117.57 117.64 $117.60
INVENTORY
ENDING INVENTORY VALUE $117.57 $117.64 $117.60
SHRINKAGE CALCULATION Total
Shipments to Inventory $223,345.00 $94,040.00 $317,385.00
Shrinkage Factor 1.00% 1.00%
Shrinkage $2,233.45 $940.40 A. $3,173.85
INTEREST CALCULATION Total
Chase Manhattan Prime 7.75%
Beginning Inventory $44,828.46 $78,303.75
Ending Inventory 191,874.24 91,406.28
Total 236,702.70 169,710.03
Average $118,351.35 $84,855.02
Total Interest $764.35 $548.02 B. $1,312.37
(1) Figures may not total as ending inventory value
represents Per Ton Value Times Rounded Ton Figure
EXHIBIT B
ELECTRONIC TRADE PAYMENTS
1. Company Name and Address Air Products and Chemicals, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxxxxxx, XX 00000-0000
2. Company I.D. Number (IRS) 000000000
(IRS Taxpayer Number and (DUNS) 00-000-0000
Company DUNS Number)
3. Depository Bank Name and Address Mellon Bank, X.X.
Xxxxxx Xxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
4. Depository Bank Transit 000000000
Routing Number
5. Depository Bank Operations Xxxxxx X. Xxxxxxxxx
Contact Name and Telephone Number 412/234-2489
6. Account Name Air Products and Chemicals, Inc.
7. Account Number 115-1265
8. Type of Transaction We Want Deposited CTP [x] CT X [ ]
to Your Account
9. Company Contact Name and Xxxxx X. Xxxxxx, Treasury
Telephone Number 610/481-7659
EXHIBIT C
PRODUCT SPECIFICATION FOR AMMONIUM NITRATE PRILLS
PRODUCED AT PACE, FLORIDA
The properties listed below are for material sampled at the Finished Product
Belt
COMPOSITION
PROPERTY UNITS MINIMUM MAXIMUM ANALYTICAL METHOD
Total Nitrogen % 34.0 --- SD-131
Ammonium Nitrate % 97.2 --- SD-131
Magnesium % 1.6 2.0 501.13
Nitrate
Total Moisture % --- 0.45 501.12
pH SU 6.0 7.0 501.14
Amines-Oil ppm 300.0 400.0 501.09
Coating
PHYSICAL CHARACTERISTICS
Mesh
Particle Size (U.S. Standard Mesh) Range, %
Distribution +6 0-1
+8 10-25
+10 25-35
+12 35-50
+14 5-10
-14 0-2
Unpacked Bulk Density 60-63 lb/cu.ft.
Angle of Repose 25-28 degrees
Appearance near-white prills
EXHIBIT D
LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTY
A. SELLER AND MANUFACTURER MAKE NO WARRANTY, EXPRESS OR IMPLIED, EXCEPT
THAT THE PRODUCT IS OF THE QUALITY SET FORTH IN MCC'S APPLICABLE PUBLISHED
SPECIFICATIONS (IF ANY). THE AFORESAID WARRANTY RUNS ONLY TO THE BUYER.
SELLER AND MANUFACTURER WARRANT NEITHER THE RESULTS TO BE OBTAINED FROM USE OF
THE PRODUCT, ITS MERCHANTABILITY, NOR ITS FITNESS FOR ANY PARTICULAR PURPOSE.
B. The quantity of Product is deemed to be the quantity determined at the
time of shipment by shipper's scale weights or marine survey, whichever is
applicable.
C. Seller and Manufacturer disclaim all risk and liability directly or
indirectly related to unloading, discharge, storage, handling, use (whether
alone, in combination with other substances or in the operation of any process),
and/or sale of the Product, and directly or indirectly arising out of compliance
or noncompliance with the laws, ordinances, and regulations of any governmental
entity or agency. Without limiting the generality of the foregoing, Seller and
Manufacturer expressly disclaim liability for the failure of discharge or
unloading implements or material used by the Buyer (whether or not supplied by
Seller or Manufacturer) and for the infringement of patent or other proprietary
rights.
D. Any technical advice or assistance furnished Buyer, whether before or
after delivery of the Product, for use in connection with unloading, discharge,
handling, storage, shipment, processing or use of product, or in connection with
the design or operation of any machinery or equipment related thereto, will be
without charge and without warranty; Buyer shall accept such technical advice or
assistance at Buyer's sole risk.
E. In no event shall Seller or Manufacturer be liable to Buyer for loss
of profits or for consequential, special or indirect damages resulting from
delay in or failure of performance hereunder or in any way related hereto. In
no event shall Seller or Manufacturer be liable to Buyer or any other party in
connection with any claim related to or arising out of this sale, including for
negligence, in an amount exceeding so much of the purchase price as is
applicable to that portion of the Product with respect to which such claim
relates. Failure to give notice of a claim with respect to the Product within
ten (10) days after the occurrence upon which such claim is founded shall
constitute a waiver by Buyer of such claim.
F. No consent to, waiver of or excuse from a breach hereunder, whether
express or implied, shall constitute a consent to, waiver of, or excuse from any
prior, concurrent or subsequent breach of the same or any other term or
provision.
EXHIBIT E
TECHNOLOGY TRANSFER
The parties to the Agreement to which this Exhibit E is annexed agree that MCC
will provide to Air Products sufficient information to allow Air Products to
manufacture prilled ammonium nitrate in accordance with the Agreement and with
MCC specifications for the product known by the trade name AMTRATE(R), the
specifications for which are found at Exhibit F to the Agreement.
SECTION 1. DEFINITIONS.
For purposes of this Exhibit E:
(a) "Product" means fertilizer grade prilled ammonium nitrate to be
manufactured by Air Products to MCC's specifications for AMTRATE(R).
(b) "MCC Coating Technology" means the know-how, process and apparatus for
production and application of a coating agent for Product using MCC
Information and Supplemental MCC Information.
(c) "Territory" means Air Products' Pace, Florida, facility.
(d) "Effective Date" is the effective date of the Agreement to which this
Exhibit E is annexed.
(e) "MCC Information" means designs, technical experience, data and know-how
for the design and operation of ammonium nitrate plants and other valuable
information conveyed to Air Products during the Term of the Agreement
relating to (i) processes for producing particulate ammonium nitrate,
including all steps undertaken from the preparation of the feedstock
through the treatment of the end product; (ii) product specifications and
additives designed to improve the physical properties of the particulate
product; and (iii) processes for the production and use of a coating agent
which is described in U.S. Patent 4,521,239.
(f) "Supplemental MCC Information" means the inventions, specifications,
production data, specialized know-how, skill and other secret and
confidential technical information relating to the manufacture of ammonium
nitrate which is owned or controlled by MCC or under which MCC has the
royalty-free right to license others and which MCC acquires and conveys to
Air Products during the Term of the Agreement.
(g) "Term of the Agreement" means the period during which the Agreement to
which this Exhibit E is annexed is in effect.
SECTION 2. THE GRANT.
(a) For the Term of the Agreement and upon the conditions hereinafter more
specifically set forth, MCC hereby grants to Air Products, under said
MCC Information and Supplemental MCC Information, the nonexclusive right to
manufacture the Product in the Territory.
(b) Except as MCC and Air Products may hereafter agree in writing, Air Products
shall have no right (i) to permit or subcontract others to use the MCC
Information or Supplemental MCC Information, or (ii) to disclose to or
permit or sublicense others to use the MCC Information or Supplemental MCC
Information, or (iii) to use the MCC Information or Supplemental MCC
Information in connection with the manufacture, use or sale of ammonium
nitrate prills other than under the terms of the Agreement.
SECTION 3. DUTIES OF MCC.
Any translation of MCC Information or Supplemental MCC Information or conversion
of any MCC Information or Supplemental MCC Information from one numeric system
to another shall be performed by Air Products at its own expense. Nothing
contained herein shall be construed as requiring MCC to perform any act in
conflict with the laws of the Untied States of America pertaining to the export
of technical information or data.
(a) MCC shall provide basic engineering information in sufficient detail and
scope to allow Air Products to design, procure and construct additions and
modifications to the Air Products facilities as needed to allow Air
Products to manufacture Product.
(b) MCC shall review and comment on engineering drawings and design documents
prepared by Air Products in response to (a) above.
(c) MCC shall provide operating instructions, laboratory procedures for
required quality control testing, and specifications and vendor data for
procurement of raw materials for use of the MCC Coating Technology.
(d) MCC shall assist Air Products in a hazards review of the MCC Coating
Technology prior to implementation by Air Products.
(e) MCC shall, at Air Products' request, perform periodic inspections of
construction in progress at the Air Products facility.
(f) MCC shall, at Air Products' request, provide on-site consultation at Air
Products' facility during commissioning and start-up for the purpose of
assisting Air Products in the proper manufacture of the Product. MCC shall
advise Air Products of any additional modifications, additions or
adjustments necessary to facilitate manufacture of the Product.
(g) MCC shall provide quality testing in MCC's laboratories and test facilities
as MCC may deem appropriate in assessing whether Product manufactured by
Air Products meets MCC's standards for AMTRATE(R), using samples provided
by Air Products at the request of MCC.
SECTION 4. DUTIES OF AIR PRODUCTS.
(a) Promptly after receipt of the basic engineering information from MCC, Air
Products shall proceed with all reasonable diligence to design, procure and
install additions and modifications as needed to allow Air Products to
begin manufacture of the Product provided, however, that at no time shall
Air Products be compelled to install any additions or modifications or
otherwise engage in any action which is in conflict with Air Products'
safety, health or environmental standards or policies.
(b) Air Products shall provide MCC a schedule for performance of the
Air Products' duties and report progress against the same.
(c) Air Products shall provide engineering design documents and drawings for
MCC review and comment and shall make a good-faith effort to revise the
design as recommended by MCC.
(d) Air Products shall train Air Products personnel in accordance with
operating instructions and quality control procedures provided by MCC and
shall ensure that said instructions and procedures are followed.
(e) Air Products shall provide samples for testing as reasonably requested by
MCC.
(f) Air Products shall proceed with all due diligence to achieve successful
manufacture of the Product at the earliest reasonable time.
(g) Air Products will buy raw materials for preparation of the coating agent
only from MCC-approved vendors.
(h) Air Products will cooperate with MCC on the specifications and sourcing of
raw materials other than those defined in paragraph (g) above as necessary
to assure compatibility of Product with MCC's AMTRATE(R).
SECTION 5. PROTECTION AND OWNERSHIP OF MCC INFORMATION AND SUPPLEMENTAL MCC
INFORMATION.
(a) All MCC Information and Supplemental MCC Information furnished to
Air Products hereunder remains the property of MCC.
(b) Air Products agrees to keep confidential all MCC Information and
Supplemental MCC Information provided to Air Products in tangible form and
labeled "Confidential MCC." Air Products may not, without written consent
from MCC, communicate or allow to be communicated any MCC Information or
Supplemental MCC Information to anyone except to its officers, employees,
and agents, and only to such extent as may be necessary for the proper
manufacture and sale of the Product in accordance with the Agreement and
this Exhibit E.
(i) Air Products will cause said agents and employees to sign
confidentiality agreements in conformance with Air Products'
current policy and procedure, attached as Exhibit G.
(ii) Air Products shall assist in prosecution of any civil or criminal
action brought against any former Air Products agent or employee in
the event of breach of such secrecy obligations.
(c) If necessary to share information with any third party in order to practice
MCC Information or Supplemental MCC Information, Air Products must bind the
third party with a secrecy agreement no less stringent than this Exhibit E.
Air Products shall assist in the prosecution of any civil or criminal
action brought against any third party in the event of a breach of such
secrecy obligations.
(d) Except as needed to practice MCC Information or Supplemental MCC
Information for manufacture of Product, Air Products will not, without the
prior written consent of MCC, use, reproduce or copy, or permit the use,
reproduction or copying of any of said drawings, prints, data and other
documents. Air Products agrees that any reproduction, notes, summaries or
similar documents relating to the MCC Information or Supplemental MCC
Information supplied hereunder immediately upon their creation will be
marked "Confidential MCC," will be covered by the terms of this Exhibit E
and will be returned to MCC pursuant to paragraph 10(c).
(e) The obligations and restrictions imposed by Section 5(b) above shall not
apply with respect to MCC Information and Supplemental MCC Information:
(i) which at the time of disclosure is in the public domain;
(ii) which after disclosure is published or otherwise becomes part of
the public domain through no fault of Air Products;
(iii) which Air Products can show was in its possession at the time of
disclosure and is not under an ongoing obligation of
confidentiality to MCC or its affiliates or to a third party; or
(iv) which Air Products can show was received by it after the time of
disclosure hereunder from a third party who did not require
Air Products to hold it in confidence and who did not acquire it,
directly or indirectly, from MCC or its affiliates under an
obligation of confidence.
(f) It is further agreed and understood that even if relieved of the obligation
of confidentiality by the exceptions recited above in Section 5(e), or
exceptions as may otherwise be permitted by this Exhibit E, Air Products
shall not disclose or cause or permit to be disclosed, to any party any
correlation or identity which may exist between any part of the MCC
Information or Supplemental MCC Information and any other information
available or made available to Air Products from any other source.
(g) For the purposes of the foregoing paragraphs, disclosures made to Air
Products under or in connection with this Agreement which are specific,
e.g., as to engineering and design practices and techniques, equipment,
products, operating conditions, etc., shall not be deemed to be within the
exceptions stated in Section 5(e) merely because individual features are
known to the public or in the possession of Air Products. In addition, any
combination of features shall not be deemed to be within the foregoing
exceptions merely because individual features are known to the public or in
Air Products' possession, but only if the combination itself and its
principal of operation are generally known to the public or in the
possession of Air Products.
SECTION 6. PROTECTION OF INDUSTRIAL PROPERTY.
(a) Air Products expressly acknowledges and agrees that, except in the
Territory and to the extent of the grant set forth in Section 2(a) hereof,
it does not acquire under the Agreement or this Exhibit E any rights in or
to the use of the MCC Information and Supplemental MCC Information anywhere
in the world.
(b) Air Products further undertakes that it may not at any time contest
anywhere in the world ownership of any of the MCC Information and
Supplemental MCC Information rights of MCC.
SECTION 7. COSTS AND EXPENSES.
(a) MCC shall bear all costs and expenses incurred in discharging its duties
pursuant to Section 3 of this Exhibit E.
(b) Air Products shall bear all costs and expenses incurred in discharging its
duties pursuant to Section 4 of this Exhibit E plus all costs and expenses
incurred in the manufacture of the Product.
SECTION 8. INDEMNIFICATION AND RELEASE.
(a) MCC shall indemnify Air Products and hold it harmless against and from any
liability, claims or damages and expenses whatsoever in any way arising out
of a claim for misappropriation of trade secrets or infringement of a
patent owned or exclusively licensed by a third party by virtue of
Air Products' manufacture of Product.
(b) Nothing contained in the Agreement or this Exhibit E shall be construed as:
(i) requiring the filing by MCC of any patent application, the securing
of any patent or any patent in force after the maintaining of any
patent in force after the Effective Date;
(ii) conferring by implication, estoppel or otherwise upon Air Products
any license or other right under any patent except rights expressly
granted hereunder to Air Products.
(c) Air Products shall indemnify MCC for (i) third-party claims for injury or
property damage occurring at Air Product's Pace, Florida, facility which
arise in connection with Air Products' procurement, construction, and
operations relating to manufacture of Product; provided, however, that this
indemnification obligation shall not apply where such claim arises as a
consequence of the practice of MCC Information or Supplemental MCC
Information; and (ii) vendor demands for payment in connection with
Air Products' implementation of MCC Information or Supplemental MCC
Information; provided, however, that this Indemnification obligation shall
not apply where such demand arises as a consequence of MCC's unauthorized
commitments to such vendor.
SECTION 9. IMPROVEMENT.
(a) Air Products may not conduct any research into MCC Coating Technology
except that Air Products may conduct necessary safety studies relating to
MCC Coating Technology.
(b) Air Products may not patent or otherwise disclose any inventions or
improvements made or acquired by Air Products applicable to MCC Information
or Supplemental MCC Information, and the same shall be fully disclosed by
Air Products to MCC and shall be the property of MCC without obligation of
any type or kind to Air Products.
SECTION 10. EFFECT OF TERMINATION.
Upon termination or expiration of the Agreement, Air Products promises:
(a) to cease all manufacture and sale of Product;
(b) to cease the use of all MCC Information and Supplemental MCC Information;
(c) to return to MCC all documents free of charge which have been retained by
Air Products (including but not limited to any reproductions, notes or
summaries) relating to the MCC Information and Supplemental MCC Information
provided by MCC; and
(d) to disable to the extent necessary to render it unusable, all equipment
installed to facilitate the application of MCC Information and Supplemental
MCC Information.
Air Products' obligations of confidentiality shall survive the termination of
the Agreement and this Exhibit E and shall expire the later of the year 2014 or
fifteen (15) years after termination of the Agreement.
SECTION 11. NONASSIGNABILITY.
This Exhibit E and each and every covenant, term and condition herein is binding
upon and inures to the benefit of the parties hereto and their respective
successors, but neither this Exhibit E nor any rights hereunder may be assigned
or sublicensed, directly or indirectly, voluntarily or by operation of law, by
Air Products without first receiving the prior written consent of MCC.
SECTION 12. UNENFORCEABLE TERMS.
In the event any term or provision of this Exhibit E shall for any reason be
declared invalid by order of any court or administrative or regulatory body,
MCC, in its sole discretion, shall have the right to either terminate the
Agreement by giving at least one (1) year's prior notice to Air Products or
declare by notice to Air Products that such invalidity, illegality or
unenforceability shall not affect any other term or provision hereof. In the
latter event, this Exhibit E shall be interpreted and construed as if such term
or provision had never been contained herein to the extent the same shall have
been held invalid.
[MCC CONFIDENTIAL -- THIS EXHIBIT IS NOT TO BE COPIED OR
DISTRIBUTED TO OR VIEWED BY ANYONE WHO IS NOT A PARTY TO A SECRECY AGREEMENT
WITH MCC OR AIR PRODUCTS]
EXHIBIT F
Product Specifications for Agricultural Product
Following Installation of MCC Technology set forth in Exhibit E
(Confidential treatment has been requested)
EXHIBIT G
1. Employee Patent, Copyright and Confidential Information Agreement
2. Security Statement For Termination of Employment
3. Certificate of Air Products' Policy and Procedures Regarding the Maintenance
of Confidential Information and Trade Secrets
EMPLOYEE PATENT, COPYRIGHT AND CONFIDENTIAL INFORMATION AGREEMENT
In consideration of my employment by Air Products and Chemicals, Inc., its
divisions, affiliates and subsidiaries (all, collectively, referred to
hereinafter as the Company), I agree that I will:
A. Communicate to the Company promptly and fully in writing, in such format as
the Company may deem appropriate, all inventions made or conceived by me
whether alone or jointly with others from my time of entering the Company's
employee until I leave, and as requested, to assign to the Company those of
such inventions which (1) relate to a field of business, research or
investigation in which the Company has an interest, or (2) result from, or
are suggested by, any work which I may do for or on behalf of the Company;
B. Make and maintain adequate permanent records of all such inventions, in the
form of memoranda, notebook entries, drawings, print-outs, or reports
relating thereto, in keeping with then current Company procedures. I agree
that these records, as well as the inventions themselves, shall be and
remain the property of the Company at all times;
C. Cooperate with and assist the Company and its nominees, at their sole
expense, during my employment and thereafter, in securing and protecting
patent rights in which I am a named inventor or other similar rights in the
United States and foreign countries. In this connection I specifically
agree to execute all papers which the Company deems necessary to protect
its interests including the execution of assignments of invention and to
give evidence and testimony, as may be necessary, to secure and enforce the
Company's rights;
D. Except as the Company may otherwise authorize in writing, not use or
disclose to others, reproduce or copy at any time, except as my Company
duties may require, either during or subsequent to my employment, any
private information of the Company or of others as to whom the Company has
an obligation of confidentiality which may come to my attention or be
developed by me during the course of my employment other than information
which is or becomes public knowledge in a lawful manner;
E. Upon termination of my employment with the Company, deliver to it all
records, data and memoranda of any nature which are in my possession or
control and which relate to my employment or the activities of the Company,
including, for example, notebooks, diaries, reports, photographs, films,
manuals and computer software media.
F. Following termination of my employment, honor and abide by my continuing
obligation of confidentiality. I agree that, in any situation which arises
and involves a question of my freedom to disclose particular information to
a subsequent employer or anyone else, I will contact the Company in writing
and elicit its opinion on my freedom to make such a disclosure.
It is also agreed that:
G. All creative works which I produce during my employment and which relate to
the Company's business or technology shall be considered to have been
prepared for the Company as a part of and in the course of my employment.
Any such work shall be owned by the Company regardless of whether it would
otherwise be considered a work made for hire. Such works shall include,
among other things, computer programs and documentation, non-dramatic
library works (e.g., professional papers and journal articles), visual arts
(e.g., pictorial, graphic and three-dimensional), sound recordings, motion
pictures and other audiovisual works.
H. Nothing in this agreement shall bind me or the Company to any specific
period of service or employment, nor shall the termination of such
employment in any way affect the obligations assumed by me herein.
Further, this agreement replaces any and all prior agreements or
understandings between me and the Company concerning these subjects;
I. This agreement shall bind my heirs, executors, and administrators, and
shall inure to the benefit of the successors and assigns of the Company.
J. I will not disclose to any other employee of the Company any information as
to which I owe a continuing obligation of confidentiality to a previous
employer or client. Any inventions, patented or unpatented, which were
made or conceived by me prior to my employment are excluded from the
operation of this agreement, and I warrant that there are no such
inventions, other than those listed by me in the space provided on the back
of this document.
(L.S.)
----------------------------------------
Signature of the Employee
WITNESS:
DATED:
(List invention information on the back of this agreement.)
Form 4000 (REV. 3/94)
SECURITY STATEMENT
FOR
TERMINATION OF EMPLOYMENT
I, , make the
-----------------------------------------------------------------
following statement to Air Products and Chemicals, Inc., its divisions,
affiliates and subsidiaries (hereinafter referred to as Air Products) with the
understanding and intent that my statement will be used by Air Products in
carrying out its duty to protect the security of Classified Information
respecting the national defense of the United States.
As to such Classified Information:
1. I {a. [ ] have (complete items 2, 3, 4)b. [ ] have not (skip items 2, 3,
4)}
knowingly had access to such Classified Information during my employment
by Air Products.
2. I {a. [ ] do b. [ ] do not}
now have in my possession or custody or control any document or other
thing containing or incorporating Classified Information, or other matter
classified ``CONFIDENTIAL''or higher to which I obtained access during my
employment. All such material that I may have had in my possession has
been returned by me.
3. I {a. [ ] am b. [ ] am not}
retaining or taking away with me from my place of employment any document
or thing containing or incorporating Classified Information, or other
matter classified ``CONFIDENTIAL''or higher to which I obtained access
during my employment, in any manner whatsoever.
4. I {a. [ ] shall b. [ ] shall not}
hereafter in any manner reveal or divulge to any person any Classified
Information of which I have gained knowledge during my employment, except
as may be hereafter authorized by the Department of Defense.
If any of statements 2, 3, or 4 is completed with selection `a,'' attach a full
explanation of the circumstances, including the names of any persons authorizing
the particular handling of the Classified Information. If the employee refuses
to sign the statement, a full explanation of the circumstances of the refusal
shall be attached hereto. In either event, the matter shall be brought
immediately to the attention of the Security Officer, prior to the departure of
the employee if possible.
With respect to any of statements 1, 2, 3, or 4 above answered affirmatively,
the employee is advised that the penal provisions of the Espionage Laws, (Title
18, U.S. Code, Section 793, 794, 795, 796, 797, 798), provide that one who
unlawfully retains or discloses Classified Information is subject to severe
criminal penalties and that the making of a false statement pertaining to
Classified Information in this document may be punished as a felony under
Title 18, U.S. Code.
Further, with respect to other information which is covered by my Employee
Patent, Copyright, and Confidential Information Agreement with Air Products, I
recognize the property right which Air Products has in its private Company
Information, whether or not classified with a security marking and in whatever
form recorded.
In terminating my employment with Air Products, except as authorized under
circumstances explained in the statement attached, I have returned and accounted
for all material and copies, of whatever kind, containing Company Information,
received or prepared by me in connection with my employment, except for
information which is available to the public generally, and I have retained no
copies, reproductions or excerpts of such material whether written, printed,
photographed or otherwise encoded or stored.
Each of the above statements is true to the best of my knowledge and belief.
Witness: Signed:
Title: Date:
NOTE: This form when completely filled out will be filed in the employee's
personnel folder.
CERTIFICATE OF AIR PRODUCTS' POLICY AND PROCEDURES REGARDING THE MAINTENANCE OF
CONFIDENTIAL INFORMATION AND TRADE SECRETS
I, Plant Manager of Air Products and Chemicals, Inc., do hereby certify that the
following is a true and accurate summary of Air Products and Chemicals, Inc.'s,
policy and procedure regarding the maintenance of confidential information and
trade secrets:
The Air Products - Escambia Quality Management System is based on
written procedures and specifications which define the steps required
to process customer orders from receipt, through delivery of product
and services.
In the event proprietary information is to be disclosed to vendors,
executed confidentiality agreements are required in advance of
requests for quotations.
Quality Management documentation is strictly controlled to ensure that
only the appropriate, current and approved version of all
documentation is available at the point of use. Additional copies can
by made available when required only when they are identified as
noncontrolled.
Policies, procedures, specifications and work instructions affecting
the Air Products - Escambia Quality Management System are reviewed and
approved by identified and authorized persons prior to issue.
Any revisions to the documentation are controlled by the same review
and approval process, and the obsolete versions are removed from
service. Changes to the documentation are recorded so the holders of
the documents may be made aware of the nature of the revision.
IN WITNESS WHEREOF, I have hereunto set my hand this 14th day of September,
1994.
/s/ Xxxxx X. Xxxxxx
Plant Manager
EXHIBIT H
SECRECY AGREEMENT
The parties to the Agreement to which this Exhibit H is annexed agree as
follows: Air Products possesses technical Information, technical experience,
data and know-how for the operation of an ammonium nitrate plant at its Pace,
Florida, facility and possesses other valuable AP Information relating to the
production of coated particulate ammonium nitrate (all of the foregoing
hereinafter referred to as "AP Information"). Air Products considers the AP
Information to be proprietary to Air Products and of significant commercial
value. Air Products is willing to disclose such AP Information to MCC via
documents, discussions and visits to its Pace, Florida, facility for the sole
purpose of implementing the MCC Coating Technology, the MCC Information and
Supplemental MCC Information (as those terms are defined in Exhibit E to the
Purchase Agreement) and as necessary to facilitate the modifications to the
Pace, Florida, facility required to enable the use of the MCC Coating
Technology, MCC Information and Supplemental MCC Information.
MCC neither anticipates the need for nor expects to receive any AP
Information; however, in the event that it becomes necessary for MCC to receive
such AP Information and if the disclosure of the AP Information satisfies the
provisions of paragraph 5 of this Secrecy Agreement with respect to advance
notice and acceptance, then MCC will be bound by the terms of this Secrecy
Agreement.
IN CONSIDERATION THEREOF, it is agreed as follows:
1. MCC will not, without Air Products' consent, use or disclose to any
other person, firm or corporation any of the AP Information disclosed, and MCC
further agrees to require its employees and any others who, of necessity, shall
be given access to, or receive disclosure of, any of said AP Information to
maintain the same in confidence.
2. AP Information as used herein does not include technical AP
Information, data, designs, drawings or other material which:
(a) MCC can show was in its possession at the time of
disclosure and was not acquired, directly or indirectly,
from Air Products; or
(b) is acquired by MCC from others who have no confidential commitment
to Air Products with respect to same; or
(c) becomes, through no fault of MCC, a part of the public domain by
publication or otherwise.
3. Disclosures of AP Information by Air Products made to MCC under or in
connection with this Secrecy Agreement which are specific, e.g., as to
engineering and design practices and techniques, equipment, products, operating
conditions, compositions, formulations, etc., shall not be deemed to be within
the exceptions stated in paragraph 2 hereof merely because individual features
are known to the public or in the possession of MCC. In addition, any
combination of features shall not be deemed to be within the exceptions stated
in paragraph 2 hereof merely because individual features are known to the public
or are in MCC's possession, but only if the combination itself and its principle
of operation are generally known to the public or is in the possession of MCC.
4. Except as may otherwise by permitted by this Secrecy Agreement, MCC
shall not disclose, or cause or permit to be disclosed, to any party not subject
to this Secrecy Agreement any correlation or identity which may exist between
any part of AP Information acquired by MCC pursuant to or in connection with
this Secrecy Agreement and any other AP Information available or made available
to MCC from any other source.
5. Any disclosure of AP Information which is considered confidential
howsoever communicated whether orally, visually, in writing or by other means
shall be covered by this Secrecy Agreement, provided Air Products identified
such disclosures as confidential in advance of the communication and, if such
disclosure is communicated orally or visually, to summarize and confirm the
confidential nature of such communication in writing within ninety (90) days of
communication.
6. All drawings, prints, data and other documents disclosing such AP
Information to MCC shall remain the property of Air Products and shall be deemed
loaned to MCC only for the limited purposes specified above, and MCC will not,
without the prior written consent of Air Products, use, reproduce or copy, or
permit the use, reproduction or copying of any of said drawings, prints, data
and other documents. MCC shall return AP Information to Air Products upon
request, and MCC may not retain any copies of any documents containing such AP
Information except that one copy may be retained in MCC's Legal Department files
for archival purposes.
7. Nothing contained in this Secrecy Agreement or in any disclosure
hereunder made by Air Products shall be construed to grant to MCC any license or
other rights in or to the AP Information so disclosed or under any patent or
patent application relating thereto.
8. This Secrecy Agreement shall not be modified other than in writing and
shall be construed under the laws of the state of Mississippi.
9. This Secrecy Agreement expires in 2014.
