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EXHIBIT 10.10
Certain portions of this exhibit have been deleted and confidentially
filed with the Securities and Exchange Commission pursuant to a confidential
treatment request under Rule 406 under the Securities Act of 1933, as amended.
The confidential portions of the exhibit that have been deleted are indicted by
"[*****]" inserted in place of such confidential information.
SUPPLY AGREEMENT
1. CONTRACT DURATION: This Agreement shall be effective January 1, 1997
and continue for a period of three years through December 31, 1999 and
year to year thereafter unless canceled by either party upon 180 days
written notice prior to the expiry of the initial term or any renewal
thereof.
2. Simcala, Inc. agrees to sell and Alcan agrees to buy effective January
1, 1997 [********************************************] of silicon metal
per year. This tonnage [**********************************************]
for Alcan Xxxxxx. Shipments will be in approximately equal monthly
increments. One month prior to the start of each quarter, the Alcan and
Simcala representatives [**********************************************
***********************************************************************
**********************************************************************]
one month prior to the start of each quarter.
3. Shipping terms: [*********************]
4. Pricing:
The first quarter 1997 price will be [****]/pound of [*******] silicon
metal. [**************************************************************
********************************************]. Simcala and Alcan will
exchange non-confidential market information to facilitate the pricing
process.
5. Quality: [****************************************************]
Specification:
[**
** ****
** ****
** ****
** ****
** ****
** ****]
[**********************************************************************
*********************************************]
[*********************************************************]
Shipments in bulk truckload quantities.
[*] Confidential treatment requested
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Reference the attached Alcan General Purchasing Specification for
silicon metal - GP-S-3 Rev. #2, effective 4/30/96.
6. Terms: [***************************************************]
7. Above pricing will cover shipments [**********************************
**************************************************************].
8. Asset Disposal: Should Alcan dispose of any of their plants with their
demands for silicon covered by this Supply Agreement both Alcan and
Simcala agrees to meet to discuss the affected volume. Once an
agreement is reached on the volume, an amendment to the Supply
Agreement will be issued in writing. If no agreement is reached within
90 days of such asset disposal, an automatic adjustment of the volume
equivalent to the average of the last 9 month releases to the Company,
the assets of which have been disposed of by Alcan, will be applied to
the monthly releases under this Agreement, for the remaining term of
it.
9. All and any silicon metal purchased through this contract will be for
Alcan's consumption within the United States or any other Alcan
location outside the United States, this latter case however only after
mutual agreement confirmed in writing by Simcala.
10. Any resale of silicon metal out of this contract is not permitted.
11. Warranties and Claims: Seller warrants that (a) the Product sold
hereunder will conform to the description herein set forth, within the
tolerances of Buyer's specification as described herein; (b) such
Product will not be defective in material or workmanship; (c) the title
to such Product which Seller will convey to Buyer will be good and
marketable; (d) the transfer of such Product by Seller to Buyer will be
rightful and (e) such Product will be delivered free from any security
interest or other lien or encumbrance created by, or otherwise arising
out of acts or omissions of Seller. In the event of a breach of any
warranty by Seller given hereby as to the Product herein. Seller will
be notified thereof by Buyer promptly after discovery thereof and in
any event within 90 days after receipt of such Product by Buyer or in
case of any breach which cannot reasonably be detected by Buyer within
10 days after such detection, and in any event within one year after
receipt of such Product by Buyer. If such breach has occurred, and such
timely notice has been given, Seller will, at Buyer's option, repair or
replace such Product or refund or appropriately adjust the purchase
price thereof, or, in the case of a
[*] Confidential treatment requested
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breach in warranties (c), (d), or (e) above, take other appropriate
action to remedy such breach; disposition of such Product to be
repaired or replaced or as to which a refund is to be made shall be
pursuant to Buyer's directions and at Seller's expense, Seller will be
given a reasonable opportunity to investigate all claims and Buyer will
cooperate in any such investigation.
12. Fairness Clause: If for any reason beyond the control of the parties,
economic circumstances, including the introduction of any future sales
and/or added value taxes in the United States, change in such a way the
execution of this Agreement or any part thereof would cause undue
hardship to either one or both of the parties, or unduly favor one to
the detriment of the other, the parties shall consult with each other
to find a mutually acceptable and equitable solution with respect
thereto.
In the event within ninety days of a claim of hardship of either party,
no solution will be agreed to, this agreement can be canceled within a
term of further 180 days.
13. Severability of Terms: This Agreement and every provision hereof shall
be deemed to be severable, and in the event that any Article,
Paragraph, or Provision hereby is invalid or illegal, or in the event
any Article, Paragraph or Provision hereof shall be construed as
preventing the formation of a valid binding contract between the
parties to this Agreement, any such Article, Paragraph or Provision
shall be deemed to be stricken from this Agreement, and the remainder
of this Agreement shall continue to be in full force and effect as
though such Article, Paragraph or Provision was not contained in this
Agreement.
14. Assignment: This Agreement shall not be assignable, as to assignment of
rights and/or delegation of duties, in whole or in part by either party
or by operation of law in any matter whatsoever (including but not
limited to voluntary or involuntary bankruptcy, receivership,
dissolution, liquidation or death) without the other party's prior
written consent which shall not be unreasonably withheld, but otherwise
shall be binding upon and shall inure to the benefit of the parties,
their representatives, successors and assigns.
15. Force Xxxxxx: Neither Alcan nor Simcala shall be liable for any delay
or failure in fulfilling their obligations under this Agreement in case
such delay or failure is caused by strike or other labor dispute, acts
or laws of federal, state, or local governments, war, civil
insurrection, Acts of God, or any other reason not subject to Alcan's
or Simcala's reasonable control which cannot be prevented or overcome
by the reasonable diligence or action of Alcan or Simcala.
16. Additional Terms: This Agreement together with Alcan's "Conditions of
Order", a copy of which is on the reverse side of Alcan's Purchase
Order, constitute the entire agreement between the parties for the
Product.
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All and any of the conditions of this Agreement supersede Alcan's
"Conditions of Order" where conflicts exist.
No other terms shall be valid unless in writing and signed by the
parties hereto.
17. Applicable Law: This Agreement shall be governed as to all matters
affecting its validity, construction or performance by the laws of
Ohio.
Executed as of August 3, 1997.
SIMCALA, INC. BY: /s/
---------------------------------
ALCAN ALUMINUM LTD. BY: /s/
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