EXHIBIT 10.6
AGREEMENT
This Agreement is entered into this 5th day of December, 1995, by and
between Mid-State Plastics, Inc., a North Carolina corporation having its
principal place of business at Xxxxxxx 000 Xxxxx, Xxxxxxxx, Xxxxx Xxxxxxxx 00000
("MSP") and Xxxxxx Laboratories, an Illinois corporation having its principal
place of business at Xxx Xxxxxx Xxxx Xxxx, Xxxxxx Xxxx, Xxxxxxxx 00000-0000
("Abbott").
MSP has the know-how and manufacturing experience required to
manufacture injection molded plastic products for Abbott. The parties have
agreed that MSP will establish a manufacturing facility in Round Rock, Texas to
produce injection molded plastic parts for Abbott and Abbott will purchase the
manufacturing capacity of the facility to meet a portion of Xxxxxx'x plastic
product requirements.
In consideration of the premises and the mutual covenants and
agreements herein contained, the parties, intended to be legally bound, agree as
follows:
1. Injection Molding Facility
1.1 Upon the execution of this Agreement, MSP agrees to
construct a "Class 100,000" clean molding facility (as defined in Exhibit A,
attached hereto) to produce for Abbott injection modes plastic parts for medical
use. MSP shall be responsible for the design, construction, financing (including
insurance), staffing and operation of the plant. Unless otherwise agreed to by
Abbott in writing, the plant shall be used exclusively for the manufacture of
injection molded plastic parts for Abbott.
1.2 MSP shall lease for the term of this Agreement real
property and buildings in Round Rock, Texas and shall install such tenant
improvements, including machinery,
[*] Indicates information has been omitted and separately filed with the
Securities and Exchange Commission pursuant to an application for an order
declaring confidential treatment thereof.
equipment and other physical improvements, including machinery, equipment and
other physical assets, as are necessary to fulfill MSP's obligations under
Paragraph 1.1 above. Such real property, buildings, machinery, equipment and
other physical assets, as are necessary to fulfill MSP's obligations under
Paragraph 1.1 above. Such real property, buildings, machinery, equipment and
other assets are hereinafter referred to as the "premises," MSP's lease for the
real property and buildings shall include an option for MSP to purchase the real
estate and buildings at the expiration or termination of this Agreement. Said
lease and option, attached hereto as Exhibit B, shall be reviewed and approved
by Abbott prior to the execution of this Agreement.[*]
MSP shall be responsible for maintenance and repair of the molds. If
any mold is damaged or destroyed as a result of MSP's misuse or negligence, MSP
shall repair or replace such mold at its [*].
1.6 Prior to plant start-up, the plant shall be inspected by the Xxxxxx
Hospital Products Division Quality Assurance Department ("HPDQA"). In addition,
new molding machines shall be inspected and approved by HPDQA prior to the
manufacture by such machines of product for delivery to Abbott. A new molding
machine shall not be deemed to be installed until it receives approval from
HPDQA.
2. Term of Agreement
This Agreement shall be effective as of the date first above
written, and the term of the Agreement shall be a period of ten (10) years
beginning on the first day of the month after the conclusion of the start-up
period. The start-up period shall be that period commencing on the date of
shipment of first product to Abbott by MSP and concluding on the earlier of the
ninetieth day after such commencement of installation of the sixth molding
machine at the MSP plant.
Abbott may, at its option, renew this Agreement for additional one (1) year
terms by providing MSP with written notice ninety (90) days prior to the
commencement of such additional one (1) year terms.
3. Abbott Purchase Orders
All product manufactured for Abbott under this Agreement shall
be purchased by Abbott pursuant to Xxxxxx'x standard purchase order form, the
terms and conditions contained therein, and the provisions of this Agreement. If
the terms and conditions of the Abbott purchase order conflict with the
provisions of this Agreement, the provisions of this Agreement shall control.
4. Products and Prices
[*]
During the term of this Agreement, prices and manufacturing
standards shall be renegotiated annually on a calendar year basis (January 1
through December 31). Prices shall be negotiated by the parties in good faith
and in accordance with the provision of Paragraph 10 below.
4.3 Abbott shall provide to MSP written specifications for
each product. Product specifications may be changed only in writing by an
authorized representative of Abbott.
4.4 Product delivered hereunder shall conform with the product
specifications and shall be manufactured in accordance with current regulations
regarding Good Manufacturing Practices promulgated by the U.S. Food and Drug
Administration (the "FDA").
4.5 Additional products may be added to the Agreement by
mutual agreement by the parties at prices to be negotiated by the parties in
good faith.
4.6 MSP shall be responsible for purchasing raw materials
necessary to manufacture products hereunder; provided, however, if Abbott can
purchase raw materials at a lower price than MSP, Abbott shall purchase any such
raw materials for delivery to the MSP plant and appropriate price adjustments
shall be made to the MSP plant and appropriate price adjustments shall be made
to recognize raw materials purchased by Abbott. In either event, MSP shall be
responsible for the quality of raw materials.
[*]
4.7 Nothing contained in this Agreement shall preclude or
restrict Abbott from manufacturing injunction molded plastic products at Abbott
facilities or from purchasing such products from other suppliers.
4.8 The parties shall cooperate to develop process
improvements. The cost savings of any such process improvements, whether
developed by MSP or Abbott, shall be fully passed on to Abbott as lower product
prices [*] unless otherwise agreed to by the parties.
5. Product Transfer
MSP shall transfer inventory to Abbott F.O.B. MSP's plant as
soon as practical after manufacture and shall issue an invoice to Abbott upon
such transfer. Risk of loss shall pass to Abbott upon delivery to Abbott at the
MSP plant. Abbott shall pay such invoices net cash thirty (30) days after the
invoice date.
6. Defective Products
If Abbott receives defective products, it may deduct the price
of such, defective products from any payments due MSP. If Abbott does not elect
to make such deductions, it shall
so notify MSP, and MSP shall, within thirty (30) days after such notice, remit
the price of the defective products to Abbott.
7. Product Scheduling
Before the commencement of each month during the term of this
Agreement, Abbott shall provide MSP with a monthly production schedule (which
Abbott reserves the right to adjust form time to time during the month)
outlining the number of machine press hours to be used by MSP in manufacturing
product for Abbott up to the limits set forth in Paragraph 8 below and the types
of products to be manufactured during those hours. MSP shall manufacture product
for Abbott according to the monthly production schedules, which shall be
adjusted to reflect the number of injection molding machines installed by MSP
and the number of molds provided by Abbott.
8. Machine Availability
For each month during the term of this Agreement after the
start-up period, Abbott shall, pursuant to Paragraph 9.1 below, guarantee
machine press hours to MSP; such hours to be determined in the following manner:
Guaranteed Press Hours = (work days available in month x 24 hours/day) x number
of molding machines installed and operating x 80%.
9. Capacity Utilization
9.1 In the event of a capacity shortfall in which MSP realizes
Earned Production Hours (as defined below) less than Guaranteed Press Hours and
provided that the capacity shortfall was a direct result of 1) Xxxxxx'x
inability to provide sufficient unit volume (e.g., product orders), [*]
The term "Earned Production Hours" shall mean actual units of
product produced times standard machine hours per unit.
The term "Overhead Rate" shall mean the machine hour rate (as
determined in accordance with the provisions of paragraph 10 below) less
manufacturing variable cost (as determined in accordance with MSP's standard
cost accounting procedures).
9.2 In the event of excess capacity utilization in which MSP
realizes Earned Production Hours greater than Guaranteed Press hours, MSP shall
pay to Abbott an amount [*]
9.3 Amounts payable to Abbott shall at Xxxxxx'x option be credited
against invoices payable by Abbott to MSP or paid in cash to Abbott within
thirty (30) days after the month such amounts accrue. Amounts payable to MSP
shall be invoiced to Abbott and paid by Abbott net cash thirty (30) days after
the invoice date. The monthly calculations necessary to determine capacity
utilization shall be documented by the parties and retained for at least two
(2) years after the period to which such documentation applies.
10. Sole Payment for Product
With the exception of payments provided for in Paragraph 9
above, the sole payment due MSP from Abbott under this Agreement shall be an
amount per unit of product transferred to Abbott inventory as calculated using
the price list [*] and adjusted annually thereafter starting January 1, 1991,
and each succeeding January 1 during the term of this Agreement. [*]
Machine hour rates shall be reviewed prior to December 31,
1990 and annually thereafter. Any adjustment to machine hour rates shall be by
mutual agreement and shall be implemented at the commencement of a calendar
year. Each party shall conduct negotiations on adjustments in good faith, taking
into consideration the economic impact on the other party. In
the event that an adjustment cannot be mutually agreed upon prior to December
31, 1990 or the end of any succeeding calendar year, the machine hour rates in
effect during the period immediately preceding shall continue until the rates
are determined pursuant to Paragraph 20 below. Machine hour rates shall be
retroactive for the annual periods to which they apply.
11. Audit
MSP shall keep and maintain books and accounting records
necessary to determine capacity utilization, overhead rates and machine hour
rates and to negotiate and verify prices charged to Abbott. Such books and
accounting records shall be kept in accordance with generally accepted
accounting principles consistently applied. Upon notice to MSP, such books and
records shall be open to inspection and audit by Abbott within a period of two
(2) years after the period to which such records relate. Such audit may, at
Xxxxxx'x option, be performed by Abbott accountants or by independent certified
public accountants retained by Abbott. The accountants shall have the right to
examine the books and records kept pursuant to this Agreement and report the
findings of any such examination to Abbott. A copy of any auditing report
provided to Abbott shall be provided concurrently to MSP.
12. Termination may terminate this Agreement, upon thirty (30)
days' written notice to MSP with out payment by Abbott of any damages,
penalties or charges whatsoever, if:
a. Product produced by MSP consistently fails to meet product
specifications for three (3) consecutive months and MSP is
unable to correct deficiencies during that same period unless
such failure shall be due to mold defects not caused in whole
or in part by MSP, or the quality of plastic raw materials
supplied by Xxxxxx'x designated supplier.
b. MSP fails during three (3) consecutive months to meet 90% of
the expected production level for any given month, based on
the monthly production schedules provided by Abbott for that
month, unless such failure shall be due to mold defects not
caused in whole or in part by MSP, the quality of plastic raw
materials supplied by Xxxxxx'x designated supplier, or by
force majeure events beyond the control of MSP as described in
Paragraph 21 below.
c. MSP attempts to assign this Agreement or any rights hereunder,
without Xxxxxx'x prior written consent; or there is a
fundamental change in the control of MSP which is unacceptable
to Abbott, which approval shall not be unreasonably withheld;
or MSP ceases to function as a going concern; or MSP ceases to
conduct its operation in the normal course of business; or a
receiver for MSP is appointed; or MSP otherwise takes
advantage of any bankruptcy or insolvency law.
13. Termination by MSP or Abbott
Either party may terminate this Agreement upon thirty (30)
days written notice to the other if the other party shall breach a material
provision of this Agreement and shall not cure such breach within a period of
thirty (30) days following written notice of such breach.
14. [*]
14.4 MSP warrants and represents that as of the date of this
Agreement and during the term of this Agreement its lease for the Premises
contains and shall contain an option for MSP to purchase the Premises from the
lessor/owner.
14.5 MSP warrants and represents that it shall faithfully perform
its obligations under the lease for the Premises, including the payment of rent
and other charges, and shall
comply with all terms and conditions of the lease required of MSP.
[*]
14.6 Prior to conveyance of the Premises to Abbott, MSP shall
obtain from L&D Properties, the lessor and owner of the Premises,
representations and warranties to MSP and Abbott identical to the
representations and warranties of Paragraph 7 of the Real Estate Purchase
Agreement.
14.7 Promptly after MSP conveys title to the Premises to
Abbott, MSP shall provide to Abbott manufacturing know-how and technical
assistance required to manufacture products at the Premises. Such assistance
shall include consultation with Xxxxxx personnel. Such assistance shall include
consultation with Xxxxxx personnel. Abbott shall reimburse MSP for all
reasonable out-of-pocket expenses incurred in rendering such assistance. MSP
hereby grants to Abbott a royalty-free right and license ot practice MSP
know-how in the manufacture of products at the Premises, including the right to
use MSP patents, patent rights, proprietary data, manufacturing processes, trade
secrets, software and other MSP technical and scientific information.
15. MSP shall furnish to Abbott the following detailed
reports:
a. Monthly management reports regarding production
efficiencies detailing by items: units produced,
cycle times, down times (with explanations), scrap
rates (with explanations); and
b. quarterly financial statements, including: income
statement, balance sheet and sources and uses of
funds statement.
16. Inspection by Abbott and the FDA
16.1 Abbott may at any time and upon prior notice to MSP,
either oral or written, inspect during MSP's regular production hours the MSP
plant includes raw materials, work-in-process, finished goods, and batch
records. In addition, Abbott may perform such other quality assurance
inspections as are deemed necessary by Abbott to insure that product
manufactured by MSP will meet Xxxxxx'x requirement.
16.2 MSP will cooperate with the FDA with any plant inspection
requested by the FDA or any other governmental authority.
17. Product Liability Claims
Abbott hereby agrees to hold harmless MSP from any product
liability claims based on the product produced under the terms of this
Agreement, except where liability was due to negligent acts or omissions or
intentionally wrongful acts of MSP, and to reimburse MSP for any reasonable
legal fees or other expenses involved in defending MSP against such claims.
18. Confidential Information
It is recognized that during the course of performance of this
Agreement, the parties may from time to time disclose Confidential Information
to the other. Each party agrees to take all reasonable steps to prevent the
disclosure of Confidential Information received from the other party; provided,
however, no provision of this Agreement shall be construed to preclude
disclosure of Confidential Information as may be inherent in or reasonable
necessary to perform this Agreement. In addition, if Abbott purchases the
Premises [*], Abbott may use Confidential Information received from MSP in
Xxxxxx'x operation of the injection molding facility. As used herein, the term
"Confidential Information" shall mean all information disclosed hereunder in
writing and identified as confidential, or if disclosed orally is
reduced to writing as to its general content within thirty (30) days of oral
disclosure and identified it as being confidential, except any portion thereof
which: 1.) is known to the recipient as evidenced by its written records before
receipt thereof under this Agreement; 2.) is disclosed in good faith to the
recipient after acceptance of this Agreement by a third person lawfully in
possession of such information and not under an obligation of nondisclosure; 3.)
becomes part of the public domain through no fault of the recipient; or 4.) is
developed independently by the recipient without reference to information
disclosed hereunder. The obligations of the parties relating to Confidential
Information shall expire two (2) years after termination of this Agreement.
19. Independent Contractor
MSP is an independent contractor for Abbott. This Agreement
does not constitute MSP as an agent or a legal representative of Abbott for any
purpose whatsoever. MSP is not granted any right or authority to assume or
create any obligation or responsibility, express or implied, on behalf of or in
the name of Abbott or to bind Abbott in any manner or thing whatsoever. Nothing
in this Agreement shall be construed as creating a partnership or joint-venture
between the parties.
20. Alternative Disputes Resolution
20.1 The parties recognize that bona fide disputes as to
certain matters may from time to time arise during the term of this Agreement
which relate to either party's rights or obligations hereunder. In addition,
despite the good faith efforts of the parties disputes may arise during the
negotiation of product prices and machine hour rates. In the event of the
occurrence of such a dispute, either party may, by notice to the other, have
such dispute referred to their respective employees designated below or their
successors; for attempted resolution by good
faith negotiations within twenty (20) days after such notice is received. Said
designated employees are as follows:
For MSP - President, or his designee
For Abbott - Divisional Vice President, Hospital Products
Manufacturing/Engineering, or his designee
If the designated employees are not able to resolve such
dispute within such twenty (20) day period, either party may invoke the
provisions of Paragraph 20.2 below.
20.2 Any dispute which arises in connection with this Agreement or
any of its provisions shall be resolved by binding alternative dispute
resolution ("ADR") in the manner described in Exhibit G, attached hereto. The
decision of the neutral in any such ADR shall be final and not appealable and
shall be enforceable in any court of competent jurisdiction. No punitive damages
shall be recoverable by either party in any such proceeding.
21. Force Majeure
Any delay in the performance of any of the duties or
obligations of either party hereto shall not be considered a breach of this
Agreement and the time required for performance shall be extended for a period
equal to the period of such delay; provided that such delay has been caused by
or is the result of any acts of God, acts of the public enemy, insurrections,
riots, embargoes, strikes, fires, explosions, floods, or other unforeseeable
causes beyond the control and without the fault or negligence of the party so
affected. The party so affected shall give prompt notice to the other party of
such cause, and shall take whatever reasonable steps are necessary to relieve
the effect of such cause as rapidly as possible. During the time period in which
a force majeure event is in effect, Abbott shall not be required to make the
payments called for under Paragraph 9.1 above. Notwithstanding the foregoing, if
said delay in
performance shall continue for a period of ninety (90) days or more, then the
party not affected may terminate this Agreement by written to the other and both
parties shall be relieved fro all duties and obligations under this Agreement,
except for those duties or obligations accruing prior to such termination,
including but not limited to, Xxxxxx'x option to purchase the Premises.
22. Entire Agreement
This Agreement constitutes the entire Agreement between the
parties concerning the subject matter hereof and supersedes any written or oral
prior agreements with respect thereto. No variation or modification of the terms
of this Agreement nor any waiver of any of the terms or provisions hereof shall
be valid unless in writing and signed by an authorized representative of each
party. Failure by either party to enforce any rights in this Agreement shall not
be construed as a waiver of such rights nor shall a waiver of either party in
one or more instances be construed as constituting a continuing waiver or as a
waiver in other instances.
23. Applicable Law
This Agreement shall be construed, interpreted and governed by
the laws of the State of Texas, exclusive of choice of law rules.
24. Assignment
Neither party shall assign this Agreement nor any part thereof
without the prior written consent of the other party; provided, however, either
party without such consent may assign or sell the same in connection with a
transfer or sale of substantially its entire business to which this Agreement
pertains or in the event of a merger or consolidation with another company. Any
permitted assignee shall assume all obligations of its assignor under this
Agreement. No assignment shall relieve a party of responsibility for the
performance for any accrued obligation which such party then has hereunder.
25. Notices.
All notices hereunder shall be delivered personally or by
registered or certified mail, postage prepaid, to the following addresses of the
respective parties:
Xxxxxx Laboratories
Xxx Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
Attention: President, Hospital Products Division
With a copy to: General Counsel
Mid-State Plastics, Inc.
Xxxxxxx 000 Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
Attention: President
Notices shall be effective upon receipt if personally delivered or on
the third business day following the date of mailing. A party may change its
address listed above by notice to the other party.
26. Severability
If any part of this Agreement shall be judged invalid, it
shall be considered severable and the remainder of the Agreement shall continue
in full force and effect to the extent practicable.
27. Exhibits
All Exhibits referred to herein shall be deemed to be made a
part hereof and incorporated herein in all respects.
The parties intending to be bound by the terms and conditions
hereof have caused this Agreement to be signed by their duly authorized
representatives on the date first above written.
Xxxxxx Laboratories Mid-State Plastics, Inc.
By:_______________________________ By:________________________________
Title_____________________________ Title:_____________________________
Date:_____________________________ Date:______________________________
Exhibit A
"Class 100,00" Clean Molding Facility
A Class 100,000 clean molding facility shall mean a manufacturing facility
suitable for producing plastic parts for medical use which meets and maintains
the following air quality standard: Particles in the air must not exceed 100,00
particles, greater than 0.5 micron, per cubic foot of air.
Exhibit B
Lease and Option to Purchase Round Rock, Texas Real Estate
Exhibit C
[*]
Exhibit D
[*]
Exhibit E
[*]
EXHIBIT F
[*]
1. Premises. Seller agrees to sell and Purchaser agrees to
purchase certain real property located in the city of Round Rock, Texas,
together with all improvements, easements, rights and privileges appurtenant
thereto (the "Premises") (a copy of the legal description of the Premises is
attached hereto as Exhibit [*]. At the time this Purchase Agreement becomes
effective, Purchaser shall deposit in an interest bearing account with a
reputable title company acceptable to Purchaser, ten percent (10%) of the
purchase price as determined by the parties in accordance with Paragraph 14 of
the Agreement. The xxxxxxx money, together with all accrued interest thereon,
shall be held for the mutual benefit of the parties according to the terms of
this Purchase Agreement, and shall be applied toward the payment of the purchase
price at closing. The balance of the purchase price, plus or minus customary
prorations as set forth in Paragraph 5 hereof, shall be paid to Seller at
closing by wire transfer of funds.
2. Closing. Provided title to the Premises is shown to be good
and marketable and is accepted by Purchaser, closing shall take place at the
offices of the title company issuing the title policy on the premises forty-five
(45) days after Purchaser exercises its option to purchase and gives notice to
Seller of Purchaser's decision to purchase the Premises, as set forth in
Paragraph 14 of the Agreement, or as soon as practicable thereafter ("Closing").
3. Title. Seller shall deliver to Purchaser, at Seller's
expense, as soon as possible after Seller's exercise of its option to purchase,
but in no event later than twenty-one (21) days prior to Closing, a commitment
for title insurance from a reputable title insurance company acceptable to
Purchaser showing good and marketable title to the Premises and all
appurtenances thereto, free and clear of any liens, encumbrances, title defects,
leases or other adverse interests of any nature whatsoever, except those
recorded covenants, conditions, restrictions, easements, rights of way and roads
of record, which in the reasonable judgment of Purchaser do not impair the use
of the Premises as an industrial site. The title commitment shall contain an
agreement to furnish at Closing an ALTA title insurance policy in the full
amount of the purchase price of the Premises.
Purchaser shall be allowed fifteen (15) days after receipt of
the title commitment to make any objections thereto. If any objections are made,
Purchaser shall do so by sending a written statement to Seller containing such
objections. Seller shall have thirty (30) days from receipt of Purchaser's
objections to cure, remove or insure over any such title defects. If title
cannot be made good and marketable, Purchaser may elect to rescind the Purchase
Agreement or take title as is deliverable without abatement in the purchase
price (except for the payment of fixed or ascertainable liens or encumbrances).
In the event Purchaser elects to rescind this Purchase Agreement shall become
null and void and without any further action of the parties, and the xxxxxxx
money, together with any accrued interest thereon, shall be promptly refunded to
Purchaser. Purchaser must make its election within ten (10) days after Seller
has provided Purchaser with written notification of a title defect not
susceptible of being cured, removed or insured over.
4. Survey. At least fifteen (15) days prior to Closing,
Seller, at its expense, shall deliver to Purchaser a current certified survey of
the Premises prepared by a licensed surveyor showing all recorded conditions,
easements, and rights of way and roads (both public and private).
5. Prorations. Seller shall pay all general real estate taxes
which are or shall become due as of the Closing. General real estate taxes for
the year in which the Closing occurs shall be prorated to the Closing based on
110% of the most recently issued final tax xxxx on the Premises. All prorations
shall be final, and there shall be no proration agreement. However, Seller shall
pay or credit Purchaser for all special assessments and special taxes pertaining
to the Premises, whether such special assessments or special taxes are due
before or after the Closing.
6. Right to Inspect. During the term of this Purchase
Agreement and until Closing, Purchaser shall have the right to enter upon the
Premises during regular business hours and upon twenty-four prior notice to
Seller for the purpose of conducting any environmental tests deemed appropriate
by the Purchaser in its sole discretion. Purchaser shall indemnify, defend and
hold Seller harmless from any judgment, claim, suit, damage, cost or expense,
including reasonable attorneys fees, resulting from Purchaser's entry upon the
Premises to conduct such tests.
If Purchaser is not satisfied, in its sole discretion, with
the results from any environmental test, Purchaser shall have the right to
rescind this Purchase Agreement upon written notice to SEller not less than five
(5) days prior to Closing, and this Purchase Agreement shall become null and
void without any further action by the parties. In such event, the xxxxxxx
money, together with any accrued interest thereon, shall be promptly refunded to
Purchaser.
7. Representation and Warranties. Seller hereby represents and
warrants to Purchaser as follows:
a. Seller has no knowledge and has not received any notice
from any governmental authority to the effect that Seller
has not complied with any applicable governmental law,
ordinance, regulation, statute or rule pertaining to the
Premises;
b. Seller has full power and authority to enter into this
Purchase Agreement and to perform its obligations
hereunder;
c. There are no pending or threatened litigation,
condemnation, eminent domain or administrative proceedings
against Seller or affecting the Premises, and there are no
claims or facts with respect to Seller which could be the
basis for such actions or proceedings;
d. Seller or any agent or representative on its behalf, has
not deposited and has not permitted any other party to
deposit any Hazardous Materials on the Premises. For
purposes of this Purchase Agreement, Hazardous Materials
shall include, but shall not be limited to, substances
defined as "hazardous substances" or "toxic substances" in
the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. SEC. 9601 et.
seq., Hazardous Materials Transportation Act, 49 U.S.C.
Sec. 1801 et. seq., Resource Conservation and Recovery Act,
42 U.S.C. Sec. 6901 et. seq., Toxic Substances Control Act
of 1976, as amended, 15 U.S.C. Sec. 2601 et. seq., Clean
Water Act, 33 U.S.C. Sec. 1251 et seq., as amended, and
Clean Air Act, 42 U.S.C. Sec. 7401 et. seq., and the
regulations adopted and official publications promulgated
pursuant to said laws;
e. Seller or any agent or representative on its behalf, has
not dealt with any broker, agent or finder in connection
with this transaction in any manner that could give rise to
any claim for brokerage commission, finder's fee, or
similar type of compensation by any person or entity;
f. Seller has good, clear and marketable title to all
machinery, equipment and personalty to be conveyed to
Purchaser hereunder by the Xxxx of Sale, as described in
Paragraph 8 herein;
g. All of the representations and warranties contained in this
paragraph shall survive Closing.
8. Closing Documents. At closing, Seller shall deliver to
Purchaser a recordable Warranty Deed subject only to real estate taxes for the
year in which the Closing occurs and subsequent years and easements, covenants,
conditions and restrictions of record, along with any other customary closing
documents, including, but not limited to, an Affidavit of Title covering the
general exceptions of title listed in the title policy delivered by Seller to
Purchaser pursuant to Paragraph 3 hereof and a Xxxx of Sale conveying to
Purchaser all of the machinery, equipment and personalty within the Premises;
and Purchaser shall, upon the delivery of the foregoing instruments, pay to
Seller the balance of the purchase price as determined by the parties in
accordance with Paragraph 14 of the Agreement.
9. Indemnification. Seller shall hereby indemnify, defend and
hold Purchaser harmless from any and all claims, liability, suits, damages,
causes of action, judgment or verdicts against the Purchaser or any expense or
cost (including reasonable attorneys fees or any remedial action undertaken by
Purchaser) incurred by Purchaser resulting from the breach of Seller's
representations and warranties set forth in Paragraph 7 of this Purchase
Agreement, regardless of any investigation performed at any time by or on behalf
of Purchaser or any information Purchaser may have in respect thereof.
10. Default. If Purchaser defaults hereunder and this Purchase
Agreement is terminated as a result thereof without Seller's fault, the xxxxxxx
money and any accrued interest thereon shall be forfeited to Seller as
liquidated damages and shall be the sole and exclusive remedy of Seller. If
Seller default hereunder and this Purchase Agreement is terminated as a result
thereof with out Purchaser's fault,
Purchaser's xxxxxxx money and any accrued interest thereon shall be paid
immediately to Purchaser. Except for the above limitation, in addition to any
other rights or remedies available at law or equity, either party may institute
legal action to cure, correct or remedy any default, to recover damages for any
default or to obtain any other remedy consistent with the purpose or to obtain
any other remedy consistent with the purpose of this Purchase Agreement. The
rights and remedies of the parties are cumulative, and the exercise by either
party of one or more of such rights or remedies shall not preclude the exercise
by it, at the same time or at different times, of any other right or remedy for
the same default or any other default by the same party.
11. Damage to Premises. In the event the Premises suffers
partial or substantial damage prior to Closing as a result of an insured
casualty, Purchaser shall have the option, to be exercised at any time prior to
Closing, either to accept title to the Premises in its damaged condition at
Closing, and have Seller transfer to Purchaser all of Seller's interest in and
to any insurance proceeds or rights to collect insurance proceeds with respect
to the damaged Premises, or to terminate the Purchase Agreement, which shall
render the Purchase Agreement null and void, and to promptly receive a refund of
the xxxxxxx money, together with any accrued interest thereon.
12. Governing Law. This Purchase Agreement shall be governed
by and construed in accordance with the laws of the State of Texas.
13. Notice. Any notice or communication required or permitted
to be given herein shall be in writing and sent by registered or certified mail,
postage prepaid, return receipt requested or by express mail services or
facsimile machine; shall be mailed to the address listed below or such other
address as each party may from time to time provide; and shall be deemed
effective upon the date of mailing.
If to Seller: Mid-State Plastics, Inc.
Xxxxxxx 000 Xxxxx
Xxxxxxxx, Xxxxx Xxxxxxxx 00000
With a copy to: Corporate Real Estate Manager
Xxxxxx Laboratories
Department 000
Xxx Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
With a copy to: General Counsel
Xxxxxx Laboratories
Department 000
Xxx Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, Xxxxxxxx 00000-0000
14. Survival. The representations, warranties, covenants and
agreements contained herein shall survive the Closing and shall not be merged
into any deed.
15. Captions. The paragraph headings used herein are for
convenience only and are in no way intended to define or limit the substantive
provisions of this Purchase Agreement.
16. Entire Agreement. This Purchase Agreement constitutes the
entire agreement and understanding between the parties hereto with regard to the
subject matter hereof and supersedes all previous agreements and understandings.
This Purchase Agreement may not be amended or modified except in writing signed
by both parties.
17. Binding Effect. This Purchase Agreement shall bind the
parties hereto, their respective beneficiaries, legal representatives, heirs,
successors and assigns.
18. Time of Essence. Time is of the essence of this Purchase
Agreement.
19. Severability. If any provision of this Purchase Agreement
is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions of this Purchase Agreement shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated.
20. Assignment. Neither party shall assign, transfer or convey
its rights under this Purchase Agreement without obtaining, in each and every
instance, the prior written consent of the other party.
21. Nonrecordation. Neither party shall record this Purchase
Agreement nor any portion or memorandum of it, without the prior written consent
of the other party.
IN WITNESS WHEREOF, the duly authorized officers of the
respective parties have executed this Purchase Agreement as of the day and year
first above written.
SELLER: PURCHASER:
MID-STATE PLASTICS, INC. XXXXXX LABORATORIES
By:_____________________________ By:_______________________________
Its:____________________________ Its:______________________________
ATTACHMENT OF EXHIBITS
Exhibit A - Legal Description of Premises
Exhibit B - Agreement
Exhibit G
Alternative Dispute Resolution
The parties agree that any dispute that arises in connection
with this Agreement shall be resolved by binding Alternative Dispute Resolution
(ADR) in the manner described below. It is the intent of the (30) business days
after an ADR is begun.
a. If a party intends to begin an ADR to resolve a dispute,
such party shall provide written notice to the other party
informing the other party of such intention and the issues
to be resolved. Within five (5) business days after the
receipt of such notice, the other party may, by written
notice to the party initiating ADR, add additional issues
to be resolved. Within fifteen (15) business days following
the receipt of the original ADR notice a neutral person
shall be selected by the then President of the Center for
Public Resources ("CPR"), 000 Xxxxx Xxx., Xxx Xxxx, Xxx
Xxxx 00000. The neutral personal shall be an individual who
shall preside in resolution of any disputes between the
parties. The neutral person selected shall not be an
employee, director or shareholder of either a party or of
an affiliate of either party.
(i) Each party shall have five (5) business days from the
date the neutral person is selected to object in good
faith to the selection of that person. If either arty
makes such an objection, the then President of the CPR
shall, as soon as possible thereafter, select another
neutral
person under the same conditions set forth above. This
second selection shall be final.
(b) (i) No later than twenty (20) business days after
selection, the neutral person shall hold a hearing to
resolve each of the issues identified by the parties.
(ii) At least fifteen (15) business days prior to the
hearing, each party shall submit to the other party
(the "receiving party") and the neutral person a list
of all documents on which such party intends to rely in
any oral or written presentation to the neutral person
and a list of all witnesses, if any, such party intends
to call at such hearing. Within five (5) business days
after the receiving party makes a request therefor,
which request must be given at least five (5) business
days prior to the hearing, such other party shall
deliver to the receiving party (x) one true and correct
copy of each of the documents on the above-referenced
list requested by such receiving party and (y) a
summary of the anticipated testimony of each of such
party's witnesses. Except as expressly set forth
herein, the neutral person shall not require nor shall
there by any discovery by any means, including
depositions, interrogatories or production of
documents.
(iii) At least five (5) business days prior to the hearing,
each party must submit in writing to the neutral person
and serve on the other party a proposed ruling on each
issue to be resolved. Such writing shall be limited to
representing the proposed rulings, shall contain no
argument on or analysis of the facts or issues, and
shall be limited to not more than fifty (50) pages.
(iv) Each party shall be entitled to no more than five (5)
hours of hearing to present testimony or documentary
evidence. The testimony of both parties shall be
presented during the same calendar day. Such time
limitation shall include any direct, cross or rebuttal
testimony, but such time limitation shall only be
charged against the party conducting such direct, cross
or rebuttal testimony. It shall be the responsibility
of the neutral person to determine whether the parties
have had the five (5) hours to which they are entitled.
(v) Each party shall have the right to be represented by
counsel. The neutral person shall have the sole
discretion with regard to the admissibility of any
evidence.
(vi) The neutral personal shall rule on each disputed issue
within ten (10) days following the completion of the
testimony of both parties. Such ruling shall adopt in
its entirety the proposed ruling of one of the parties
on each disputed issue.
(vii) ADR shall take place at a location agreed by the
parties or if the parties are unable to agree then as
designated by the neutral person. All costs incurred
for a hearing room shall be shared equally by the
parties.
(viii) The neutral person shall be paid a reasonable fee
plus expenses, which fees and expenses shall be shared
equally by the parties.
August 5, 1994
Mr. W. Xxx Xxxxx
Xxxxxx Laboratories
Xxx Xxxxxx Xxxx Xxxx
Xxxxxx Xxxx, XX 00000
Xx. Xxxxxxx X. Xxxxxxxx, Xx.
Anchor Advanced Products, Inc.
000 X. Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Recognizing that Abbott anticipates a shortfall in demand from the Austin
facility to meet the contractual requirement, and Mid-State has a potential
opportunity to sell molding services in Texas, we mutually agree to amend the
[*]
Xxxxxx Laboratories hereby authorizes Mid-State Plastics to sell the services of
the Round Rock, Texas facility to other companies and change the installed
capacity of the plant, provided that Xxxxxx'x requirements for injection molded
plastic parts shall be given first priority at the facility. Mid-State Plastics
will notify Abbott prior to the addition of each new customer and prior to
changes in capacity.
Both parties agree to negotiate annually, at mid-year beginning on or about June
30, 1995, the allocated capacity for the coming calendar year, it being agreed
that Abbott shall have the right to purchase the entire manufacturing capacity
(18 presses) of the Round Rock plant for any such year.
--------------------------- -----------------------------
Xxxxxxx X. Xxxxxxxx, Xx. W. Xxx Xxxxx
President & CEO Division V.P. Hospital Products
Anchor Advanced Products, Inc. Xxxxxx Laboratories
--------------------------- -----------------------------
Date Date
DATE: September 11, 1995
TO: Xxx Xxxxx
CC: Xxx Xxxxxxxxxxx
Xxxxxx Laboratories
0000 Xxxxxx Xxxx
Xxxxxx, XX 00000
------------------------------------------------------------------------------
Dear Xxx:
[*]
Sincerely,
Xxxx X. Xxxx Xxxxxxx X. Xxxx
VP Strategic Planning VP Sales & Marketing
cc: Xxxxxxx Xxxxxx
[*]
September 19, 1995
Xx. Xxxx X. Xxxx
Xx. Xxxxxxx X. Xxxx
Mid-State Plastics
X.X. Xxx 00
Xxxxxxxx, XX 00000
Re: 1996 Prices
-----------
Gentlemen:
We accept your Option 2d as outlined in your September 11, 1995 memo
for 1996 Machine Rate and Pricing (attached).
Summary of Option 2d:
[*]
Sincerely,
Xxx Xxxxxxxxxxx Xxx Xxxxx
Materials Manager Div., VP Mfg. Operations Devices
cc: Xxxxxx Xxxxxx
Xxxx Xxxx
Xxxx XxXxxxx
Xxxx Xxxxxxx
[*]
March 5, 1997
Xx. Xxxx Xxxx
Executive Vice President
Mid-State Plastics
Xxxxxxx 000 Xxxxx
X.X. Xxx 00
Xxxxxxxx, XX 00000
Dear Xxxx:
Attached is a signed copy of the contract revisions and modifications agreed to
by Abbott and Mid-State.
I am pleased that we were able to come to this mutually beneficial agreement
which I believe will allow us to work together on continuously improving both of
our operations.
Thanks for your help, that of Dick and Xxxx, and the entire Mid-State group. We
look forward to continuing this positive relationship.
Xxx Xxxxx
Attachment
cc: X. Xxxxxx - Xxxxxx
Xxx Xxxxxxxxxxx - Xxxxxx
Xxxx Xxxxxxx - AP30
Xxxx Xxxx - Mid-State
Xxxx Xxxx - Mid-State
ABBOTT/MID-STATE PLASTICS
CONTRACT REVISIONS AND MODIFICATIONS
1. [*]
Machine hour rates will be effective January 1, of each
respective year.
2. [*]
If more than 10% of the commodities produced by Mid-State
Plastics are decertified in any month, there will be no
downtime penalty accruing in that month. The basis for
decertification is quality experience at Abbott.
Decertification will occur when products do not meet Abbott
quality standards as outlined in Abbott specifications.
3. [*]
Mid-State Plastics retains the right to refuse orders that
exceed 85% of available machine press hours.
4. If Abbott supplies a mold to Mid-State Plastics that is unique
as compared to molds used for commodities currently produced
and such unique mold creates additional handling, processing
or other procedures outside the norm, commodities will be
priced at a non- contract rate to be negotiated by both
parties.
5. Abbott will agree to give six (6) months notice to Mid-State
Plastics if its anticipated machine press hour loading
increased more than 10%.
6. [*]
APPROVED:
--------------------- ---- ------------------------ ---- ------------------------ ----
Xxxx Xxxx Date Xxxxxx X. Xxxxx Date Xxxxxx Xxxxxx Date
Executive Vice President Divisional Vice President, Director, Austin Operations
Mid-States Plastics Hospital Products Mfg. Operations Xxxxxx Laboratories
Xxxxxx Laboratories
*
