*** TEXT OMITTED AND FILED SEPARATELY
CONFIDENTIAL TREATMENT REQUESTED
EXHIBIT 10.1
ENZYME SUPPLY AGREEMENT
-----------------------
This Agreement is made this 5th day of February, 2002 (the "Effective
Date"), by and between CORN PRODUCTS INTERNATIONAL, INC., a corporation
organized under the laws of Delaware, with its principal office at 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxx Xxxx, Xxxxxxxx 00000-0000 ("Buyer") and GENENCOR
INTERNATIONAL, INC., a corporation organized under the laws of Delaware, with a
principal office at 000 Xxxxxxxx Xxxxxx Xxxx., Xxxxxxxxx, Xxx Xxxx 00000
("Supplier") (each a "Party", and collectively, the "Parties").
WHEREAS, as of the Effective Date above, Supplier acquired all of the
capital stock of Buyer's former subsidiary, Enzyme Bio-Systems Ltd. ("EB"), and
for purposes of this Agreement, Supplier shall be deemed to include EB;
WHEREAS, Supplier, through its own operations and the operations of EB,
is the manufacturer and distributor of the enzyme products identified on
Exhibits A and B hereto ("Products");
WHEREAS, Supplier wishes to sell Products to Buyer, and Buyer wishes to
purchase Products from Supplier, subject to the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements herein contained, and for other good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the Parties hereby agree
as follows:
1. THE PRODUCTS.
A. Beginning on the Effective Date, Supplier shall sell to Buyer the
Products identified in Exhibit A hereto, which is incorporated herein by
reference. Buyer shall additionally have the right, in its sole discretion, to
purchase from Supplier those products set forth in Exhibit B. Exhibits A and B
may be modified from time to time upon mutual agreement,
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in writing, between the Parties. Exhibits A and B may include products
manufactured by Supplier through operations other than EB. Subject to the
provisions of Section 3, Supplier shall assist Buyer in [...***...] if Buyer
deems such [...***...] beneficial.
B. Supplier shall provide a continuous supply of Products hereunder to
the following Buyer's facilities (the "Facilities" and each, a "Facility") in
the United States, Canada or Mexico (the "Territory"):
[...***...]
During the Term hereof, Buyer shall purchase from Supplier Products in an amount
equivalent to at least [...***...] percent ([...***...]%) (the "Volume") of
Buyer's actual annual requirements of enzymes at the Facilities, including any
expansions or additions to the Facilities, irrespective of source ("Actual
Annual Requirements"), as measured in [...***...] as of the date of purchase.
Purchases or transfers of Products from Supplier and through distributors shall
be included in the Volume. Purchases of Products by Buyer from EB in the
calendar year 2002 prior to the Effective Date hereof shall be included in
determining whether Buyer has met Buyer's Volume for the first year of this
Agreement. The Volume shall be calculated [...***...].
Supplier will comply with all EB agreements with distributors that are
applicable to the supply of Products to Buyer in existence on the Effective
Date, which by their terms extend after the Effective Date, notwithstanding a
change of control. Nothing in this Agreement is intended to or shall be deemed
an intent of EB, Supplier, or Buyer to cause or encourage a breach of any third
party agreement.
[...***...] Buyer and Supplier shall mutually evaluate whether any such facility
shall be added to the list of Facilities.
In each contract year, the Volume may vary by +/- [...***...] percent
([...***...]%) of the Actual Annual Requirements, provided that to the extent
the variance results in a volume less than [...***...] percent ([...***...]%) of
Buyer's Actual Annual Requirements in any given
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year, as measured in U.S. dollars (a "Negative Variance"), Buyer must purchase,
in addition to the Volume [...***...] percent, an amount equal to the Negative
Variance within the next year of this Agreement. The above notwithstanding, in
no event shall the Negative Variance result in an annual volume lower than
[...***...] percent ([...***...]%) of the Actual Annual Requirements. If a
Negative Variance exists upon conclusion of the final year of this Agreement,
Buyer shall have [...***...] within which to purchase an amount equal to that
Negative Variance, subject to the pricing and other terms set forth herein.
[...***...]
The Volume may be satisfied by purchases of Product from all or any combination
of Buyer's Facilities in the Territory, or by the purchase by Buyer's Facilities
in the Territory of other enzyme products from Supplier, including but not
limited to those set forth on Exhibit B.
Each Facility wishing to purchase Product under this Agreement will issue its
own purchase order, documentation or other arrangement for purchase, invoicing
and payment; provided, however, all such purchases and sales shall be governed
solely by the terms of this Agreement. Any pre-printed terms and conditions, or
terms or conditions contrary to or different from the provisions set forth
herein, shall be of no effect, unless otherwise agreed between the parties in
writing.
C. In the event any Facility is sold to an unrelated third party as a
distinct asset and, not (i) in connection with a sale of an ongoing business
with enzyme requirements, or (ii) as one of the assets included within a stock
or equity transaction, such Facility shall be removed from the list of
Facilities. In any other instance where ownership of a Facility is transferred,
including without limitation, by operation of law, and the successor owner
entity has enzyme requirements at the Facility, Buyer shall, at Supplier's
request, cooperate in good faith in Supplier's reasonable efforts to maintain
the enzyme requirements and purchase obligations of the Facility under this
Agreement; however, nothing herein shall obligate Buyer or the successor owner
entity, to continue enzyme purchases for the Facility after ownership transfer.
Upon removal of a Facility from the List of Facilities, the Actual Annual
Requirements shall be reduced accordingly, and the Volume shall be calculated
based on the reduced Actual Annual Requirements.
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D. Section 5 below notwithstanding, to the extent: (i) Supplier is
prevented from manufacturing, selling or importing any Product, or having such
Product manufactured, sold or imported; or (ii) Buyer is prevented from using
any Product, as a result of any claim alleging infringement of a third party's
foreign or domestic patent, trade secret, proprietary information or other
intellectual property ("Intellectual Property"); Buyer shall be obligated to
purchase from Supplier an alternative non-infringing product (or product for
which no such claim has been alleged) providing comparable functionality. In
such instance, the fact that such product [...***...] shall not relieve Buyer of
its obligation hereunder, and the Parties shall cooperate [...***...]. The above
notwithstanding, Buyer shall be under no obligation to purchase a replacement
product if doing so would [...***...], in which case Buyer shall be allowed to
purchase a replacement product from a third party with a corresponding reduction
in the Volume.
E. If Buyer wishes to purchase Product in excess of the [...***...]%
variance above, it shall notify Supplier, in which case Supplier shall use
reasonable efforts to make the additional volume available subject to the terms
and conditions herein.
F. Supplier shall continue to supply the Products produced by EB prior
to the Effective Date ("EB Products") throughout the [...***...] of this
Agreement, except where (i) Buyer has not purchased at least [...***...] for a
period of [...***...], or (ii) the Parties otherwise agree in writing, in which
case Supplier may discontinue production of such Product. The above
notwithstanding, upon written agreement of the Parties, Exhibit A will be
amended to reflect any substitution of EB Products with other products.
G. Any affiliates, related companies, licensees, or joint ventures of
Buyer to the extent owned or controlled at least [...***...] percent
([...***...]%) by Buyer ("Buyer's Affiliates") outside the Territory shall have
the option to purchase Products subject to the terms of this Agreement. To the
extent any such Buyer Affiliate elects to be added to the Facilities under this
Agreement, its enzyme requirements and purchases shall be included in
calculating whether Buyer has met the Volume and in determining Actual Annual
Requirements. Nothing herein shall require Buyer's Affiliates outside the
Territory to purchase Products from Supplier
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or prevent those entities from purchasing products from Supplier pursuant to a
separate agreement. [...***...]
H. All Products purchased under this Agreement shall be for the use of
Buyer and will not be resold to any other company, except that the Products may
be transferred or resold by Buyer to Buyer's Affiliates. In the event of such
transfer or resale by Buyer to Buyer's Affiliates outside the Territory, the
volume transferred or resold shall not be reflected in the Volume or the Actual
Annual Requirements for that year.
I. In order to confirm to Supplier: (i) Buyer's Actual Annual
Requirements; and (ii) determination of the existence of any Negative Variance
or Positive Variance, Buyer shall provide at Supplier's request such information
reasonably necessary regarding [...***...]. Such information may be in the form
of spreadsheets, reports, third party financial audit or other materials or
methods agreed to between the Parties, recognizing that the primary purpose of
same is to establish reasonably detailed proof to support compliance with this
Agreement, without breaching the confidentiality obligations of either Party to
any third parties. Within thirty (30) calendar days after the Effective Date,
representatives of Buyer and Supplier shall meet, in person or by tele- or
video-conference, to mutually agree on the format, content, and timing for
information under this paragraph 1(I). In the event the Parties mutually
determine that a third party financial audit is the method by which they desire
to fulfill this provision, the auditor shall be mutually selected by the
Parties, and the cost of such audit shall be equally borne by Supplier and
Buyer.
J. Unless otherwise set forth in a writing signed by both Parties,
title to Products and risk of loss shall transfer to Buyer upon delivery at
Buyer's designated facility.
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2. PRICING.
A. Pricing for the Products is as set forth on Exhibits A and B.
Subject to the provisions of 2(B) or (C) below, the pricing set forth in
Exhibits A and B shall be [...***...] for the Term of this Agreement.
B. In the event that any time after the first year of this Agreement,
Buyer is presented with:
[...***...]
which allows Buyer to enjoy, [...***...] Production Cost (as hereafter defined)
for the production of [...***...] when compared to prices paid to Supplier,
Buyer may notify Supplier in writing [...***...]. "Production Cost" shall
include [...***...]. [...***...] Upon receipt of Buyer's notification, Supplier
may submit a new written offer [...***...], which, if satisfactory to Buyer,
will become the new prices upon acceptance, recognizing that the intent of this
Agreement is that [...***...] in its industry. If Buyer accepts Supplier's
written offer [...***...], then Buyer cannot seek another [...***...] under this
Section 2(B) for a period of [...***...] following the effective date of the
[...***...]. Alternatively if Supplier does not wish to submit a written offer
for [...***...], Supplier may agree that Buyer may purchase such product from
the third party, with a corresponding reduction in the Volume. If the new offer
by Supplier is not satisfactory in Buyer's reasonable discretion, Buyer will
provide Supplier [...***...] for such Product and Supplier shall have
[...***...] to negotiate in good faith a mutually acceptable [...***...], which,
if agreed, will go into effect, or if not agreed, Buyer may purchase from the
third party, with a corresponding reduction in the Volume.
C. Supplier guarantees to Buyer that the prices it is receiving
hereunder are at least as good as [...***...].
In the event that Supplier [...***...], Supplier shall [...***...] Buyer's
prices hereunder [...***...]. It is incumbent upon Supplier to reasonably
monitor [...***...] and notify Buyer of
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significant changes [...***...] or any Supplier initiated [...***...] which
triggers Supplier's [...***...] in this paragraph.
3. TECHNICAL SERVICE.
A. Upon the written request of Buyer, Supplier shall provide up to
[...***...] per year of technical assistance to Buyer at times and specific
Buyer locations to be mutually determined. Technical assistance shall include
the services of technical personnel duly skilled, experienced, and trained in
the use, application, and process optimization of the Products, [...***...]. The
term [...***...] means services to be provided [...***...]. The technical
assistance provided under this section: (i) neither limits nor enhances any
warranties set out in Section 5; and (ii) is expressly subject to the
indemnifications of each Party under such Section 5. Buyer's ability to
implement recommendations made by Supplier during the provision of technical
assistance may be limited by availability of appropriate equipment, laboratory
and personnel resources of the Buyer and Buyer's Facilities.
B. Supplier shall inform Buyer of any new development to existing
Products or new enzymes [...***...]. [...***...] If Buyer elects to purchase
those modified or new enzymes, Exhibit A shall be modified accordingly.
C. At all times while at Buyer's Facilities, Supplier will comply with
Buyer's reasonable safety rules and regulations of which it has been advised,
including but not limited to its Outside Contractors' Safety Requirements,
CP-S1, a copy of which will be furnished to Supplier in writing prior to a
facility visit, and which is incorporated herein by reference.
D. All technical services shall be performed by personnel qualified, by
education, experience, license or skill, to perform their assigned tasks in a
professional, proficient and competent manner.
4. TERM.
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A. This Agreement shall have a term beginning on the Effective Date and
continuing for seven (7) years and six (6) months from the Effective Date (the
"Term") unless earlier terminated pursuant to this Section 4.
B. This Agreement may be renewed for such a term as agreed upon in
writing by the Parties. Supplier shall submit to Buyer a written proposal for
renewal no later than [...***...] prior to expiration of the Term. In the event
that negotiations with respect to a renewal are in progress after the
termination date of this Agreement, the term of this Agreement shall continue
until such time as a new agreement is entered into or negotiations are
terminated. If either party does not wish to renew this Agreement at the
expiration of the Term or any renewal term, and negotiations with respect to a
renewal are not ongoing, it shall give the other notice thereof no later than
[...***...] prior to expiration of the Term or any renewal term.
C. If either party materially breaches any of the terms and conditions
of this Agreement, and fails to cure that breach within thirty (30) days after
receipt of written notice from the other party, or if either party makes an
assignment for the benefit of creditors, files any petition or action under any
bankruptcy reorganization proceeding or becomes insolvent or financially
insecure (as determined by credible evidence), then the other party may suspend
and/or terminate, in whole or in part, this Agreement upon ten (10) calendar
days written notice.
D. In the event that [...***...] percent ([...***...]%) or more of the
assets or business of a Party (the "Acquired Party") are acquired by a third
party (whether by sale, transfer, merger or otherwise) which is a direct
competitor of the other Party, the Acquired Party shall give the other Party
prompt written notice of said acquisition, and the other Party may in its
discretion terminate this Agreement without penalty, by delivering written
notice within [...***...] of receipt of the Acquired Party's notice.
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5. WARRANTIES AND INDEMNIFICATION.
A. Supplier warrants to Buyer that the Products meet Supplier's written
specifications for those Products, copies of which are attached hereto and
incorporated herein by reference as Exhibit C [...***...]. In the event that
new, additional, or replacement Products are added to Exhibit A, mutually agreed
specifications for those Products will be added to Exhibit C.
B. [...***...] the Products, sold by Supplier for their intended use as
indicated on the Exhibits hereto, do not infringe any issued foreign or domestic
patent or represent a wrongful misappropriation of any trade secret, as that
term is defined by applicable law, of a third party. Supplier agrees to defend,
protect, indemnify, and hold Buyer, its agents and its employees harmless
against any and all losses, damages, judgments, costs and expenses, including
but not limited to attorneys' fees and costs incurred by Buyer, its agents and
its employees, by reason of any such claim or suit arising from a claim of
infringement with respect to Products. [...***...] In case the use of any
Product, including any EB Product, is enjoined, Supplier may, at its option and
expense (a) obtain for Buyer the right to continue using the Product, or (b)
replace the same with non-infringing product with substantially similar
capability, or (c) modify the Product so that it is non-infringing and performs
with substantially the same capability. [...***...]
C. Supplier warrants the Products, as of the date of shipping to Buyer
to be, (i) not adulterated or misbranded within the meaning of the Federal Food,
Drug and Cosmetic Acts as amended, and not an article which may not under the
provisions of Section 402, 403 and 409 of the Act, be introduced into interstate
commerce and not adulterated or misbranded within the meaning of the food laws
of any state to which it is shipped or in which it is delivered by Supplier; and
(ii) exempt or recognized as safe, for the conditions and quantities of intended
use, within the meaning of the Food Additives Amendment of the Federal Food,
Drug and Cosmetic Act.
D. Supplier shall hold harmless and indemnify and defend Buyer from and
against any and all claims, losses, damages, suits, costs (including reasonable
attorneys' fees) and liabilities based upon or arising out of any bodily injury
or death of any person (including any
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Supplier employee), damage to or destruction of any property, including adverse
effects on the environment, or any violation of law, regulation or order to the
extent that such damage was caused by [...***...], or Supplier's material breach
of any warranty, representation or obligation under this Agreement. Nothing
herein shall require Supplier to indemnify Buyer for Buyer's own negligence,
willful misconduct or Buyer's material breach of any warranty, representation or
obligation under this Agreement.
E. [...***...]
F. [...***...] Further, nothing in this Section 5 shall be interpreted
as waiving or negating the limitations of liability imposed under applicable
workmen's compensation laws for work related injuries to the indemnifying
party's own employee.
6. CONFIDENTIALITY.
Confidential Information may be disclosed by the Parties to each other
under this Agreement. This Confidential Information is described as Supplier's
information relating to the manufacture and performance of the Products and
research and development activities, and Buyer's information relating to its
operations, manufacturing processes, production costs, research and development
activities, equipment, operating parameters and conditions, costs and finances,
and operating goals and strategies, and technical information regarding Buyer's
products. Any information visually observed by either party at the facility of
the other, as well as product samples, are expressly deemed Confidential
Information hereunder. The Confidential Information includes information
exchanged verbally, visually, and in writing between Supplier and either Buyer
or any affiliate, related company, subsidiary, licensee, or joint venturer of
Buyer. To the extent Confidential Information is not in tangible form, the
Parties will endeavor to generally describe same in writing; however, neither
Party shall be required to provide such a writing as to information visually
observed by either party at the facility of the other, or product samples unless
the Parties mutually agree in writing to provide such a confirming writing. The
Parties agree to hold and treat received Confidential Information as secret and
confidential and protect same as each Party would its own information of like
kind, but using not less than a
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reasonable standard of care. The Parties shall not use same except as necessary
for the purposes of this Agreement. The obligations contained in this paragraph
shall not apply to information which:
a) was in recipient's possession before receipt from discloser,
and was not subject to an obligation of confidentiality; or
b) is or becomes a matter of general public knowledge through no
fault of recipient; or
c) is rightfully received by recipient from a third party without
an obligation of confidence; or
d) is independently developed by recipient using none of the
Confidential Information; or
e) which the receiving Party is legally required to furnish by
subpoena or otherwise by operation of law, provided that prior
to furnishing Confidential Information, the receiving Party
shall notify the disclosing Party and give it the opportunity
to object to the disclosure or seek a protective order.
The occurrence of any of the above exceptions shall not be construed as an
express or implied grant of any rights under any of the disclosing Party's
patents or other Intellectual Property rights. An individual feature of the
Confidential Information shall not be considered within the above exceptions
merely because the feature is embraced by more general information within the
exceptions. A combination of features of the Confidential Information shall not
be considered within the above exceptions unless the combination itself and its
principle of operation are within the exceptions.
Neither party shall disclose the details of this Agreement or the supply
relationship to third parties, without first receiving the written consent of
the other party.
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Recipient's obligations under this paragraph shall expire [...***...] from the
termination or cancellation of this Agreement, including any renewals.
7. FORCE MAJEURE.
If performance by either Party of any of its duties or obligations
under this Agreement is prevented, hindered, delayed [...***...] which cannot be
overcome by reasonable diligence and without unusual expense, such Party shall
be excused from such performance to the extent that it is so prevented, hindered
or delayed thereby during the continuance of any such happening or event and for
so long as such event shall continue to prevent, hinder or delay such
performance; provided, however, that such party diligently works to cure such
non-performance in the shortest reasonable time period. The party asserting
force majeure shall, in each instance, give the other party written notice
within a reasonable time after knowledge thereof. Such notice shall include a
brief description of the events or circumstances of force majeure and an
estimate of the anticipated duration. Within a reasonable time after knowledge
of the cessation of any such continuing events or circumstances constituting
force majeure, the party that asserted the same shall give the other party
written notice of the date of such cessation. If the period of force majeure
continues for more than [...***...], the party not experiencing the force
majeure may terminate this Agreement upon [...***...] written notice. Buyer's
Volume shall be reduced proportionately during any force majeure period.
Further, if Buyer is required to purchase a volume from a third party in excess
of the volume required during the force majeure period in order to obtain a
supply of products, Buyer's Volume shall be reduced by that additional amount.
8. COMPLIANCE WITH LAWS.
Each Party shall comply with all laws, regulations, executive orders, and
codes, applicable to it in connection with its performance hereunder.
9. ASSIGNMENT.
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Neither party shall assign or transfer any interest in this Agreement
without the prior express written consent of the other, except that either Party
may assign this Agreement and any interest therein, in whole or in part, to a
successor to all or substantially all of the business or assets of any of its
facilities set forth above without such consent by the other Party.
10. LICENSE.
For so long as Buyer, any of Buyer's Affiliates, or Buyer's licensees
continue to purchase products from Supplier under this Agreement, Buyer, Buyer's
Affiliates, and Buyer's licensees shall be granted a [...***...] license to
[...***...], to the extent Supplier acquired same in its acquisition of EB from
Buyer, and Supplier is legally able to grant same.
11. MISCELLANEOUS.
A. Neither Party shall use the other's name as a reference or publish
any information or promulgate any news release concerning the subject matter of
this Agreement without the other's prior written approval.
B. This Agreement shall be governed and construed in accordance with
the laws of the State of Illinois without giving effect to the principles of
conflict of laws thereof.
C. This Agreement constitutes the entire understanding and agreement
between the Parties hereto with respect to the subject matter hereof, and
cancels and supersedes any prior negotiations, and merges all understandings,
and agreements, whether verbal or written, with respect thereto. Any change,
modification or alteration of this Agreement shall be made in writing and signed
by the parties.
D. Failure of either party to enforce any provision of this Agreement
shall not be deemed a waiver of such provision or of subsequent failures to
comply with any such provision.
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E. This Agreement shall be deemed separable and if any portion hereof
shall be held invalid for any reason, the remainder shall not thereby be
invalidated but shall remain in full force and effect.
F. The individuals executing this Agreement represent and warrant that
they have the authority to enter into this Agreement and to bind their
respective corporations and that all necessary corporate action has been taken
to enable the Parties to enter into this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
SUPPLIER: BUYER:
GENENCOR INTERNATIONAL, INC. CORN PRODUCTS INTERNATIONAL, INC.
By: /s/ Xxxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxx
------------------------------- -------------------------------
Title: Senior VP, Global Supply Title: VP and Treasurer
------------------------------ -----------------------------
Date: February 5, 2002 Date: February 5, 2002
------------------------------- ------------------------------
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SCHEDULE A
PRODUCTS PRODUCED BY EB:
[...***...]
PRODUCTS PRODUCED BY GENENCOR:
[...***...]
Notes:
[...***...]
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SCHEDULE B
PRODUCTS PRODUCED BY EB:
[...***...]
PRODUCTS PRODUCED BY GENENCOR:
[...***...]
Notes:
[...***...]
* CONFIDENTIAL TREATMENT REQUESTED
SCHEDULE C
[...***...] 28 Pages
