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Exhibit 10.7
PRODUCT
DISTRIBUTION AGREEMENT
This Agreement is made as of February 29, 1996, by and between Unifrax
Corporation (formerly named The Carborundum Company), a Delaware corporation
company having offices at 0000 Xxxxxxxxx Xxxxxx, Xxxxxxx Xxxxx, Xxx Xxxx 00000
(hereinafter known as the "Company"), and Societe Europeenne des Produits
Refractaires, a French company having offices at "Les Miroirs", 18 Avenue
d'Alsace, 92400 Courbevoie (hereinafter known as "SEPR").
WHEREAS BP is the indirect owner of The Carborundum Group and the
Company which includes NAF and the patents, trademarks and other intellectual
property relating to the world-wide ceramic fibers business presently conducted
by The Carborundum Group and NAF; and
WHEREAS SEPR is in the process of acquiring The Carborundum Group from
indirect wholly owned subsidiaries of BP and has entered into a stock purchase
agreement (the "Stock Purchase Agreement") to the effect, under the condition,
inter alia, that the parties hereto enter into this Agreement:
NOW THEREFORE, in consideration of the mutual covenants herein
contained, and other good and valuable considerations, it is mutually agreed as
follows:
ARTICLE 1 - DEFINITIONS
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Whenever used in this Agreement, the following terms shall have the
meaning ascribed to them hereunder:
1.01 "Agreement" shall mean this Product Distribution Agreement.
1.02 "Company" shall mean Unifrax Corporation, a Delaware
corporation being, as of the date hereof, an indirect wholly
owned subsidiary of The British Petroleum Company p.l.c.
("BP"), which owns, as of the date hereof, NAF, including
patents, trademarks and other intellectual property relating
to the Distributed Products.
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1.03 "The Carborundum Group" shall mean Newco (as defined in the Stock
Purchase Agreement), Carborundum Ventures Inc. ("CVI"), Carborundum
Resistant Materials Ltd., Carborundum Realty Pty. Ltd., The
Carborundum Company Limited, Carborundum Belgium, S.A., Carborundum
Holdings Ltda., Carborundum do Brasil Ltda., Carborundum Caribbean,
Inc., Carborundum Textil Ltda., Carborundum Deutschland GmbH, and
Carborundum Technical Ceramics GmbH and their subsidiaries excluding
in each case all assets, employees, activities, liabilities or
obligations relating to "NAF" and excluding the assets and liabilities
of (but not CVI's equity investment in) Toshiba -Monofrax Co., Ltd..
1.04 "Defaulting Party" shall have the meaning specified in SECTION 10.01.
1.05 "Distributed Product License Agreement" shall mean the license
relating to the Distributed Products listed on SCHEDULE A entered into
the date hereof between the Company and SEPR.
1.06 "Distributed Products" shall mean;
i) any and all ceramic fiber products listed on SCHEDULE A currently
supplied for resale (including improvements thereto) by NAF to
the corporate entities in The Carborundum Group located outside
of the United States (and its territories), Canada and Mexico;
ii) products developed by NAF after the Closing, or NAF products
(other than Excluded Products) sold outside the Selling Territory
at Closing but not yet sold in the Selling Territory, if and when
SEPR is not able to satisfy a request from a customer located in
the Selling Territory with an equivalent product manufactured by
SEPR within a reasonable time period, i.e. within industry
generally accepted time frame for manufacturing, (but excluding
development time) shipping and distributing new products.
1.07 SCHEDULE A shall exclude the following, (collectively referred to as
the "Excluded Products"):
i) expanding mat containing ceramic fiber and at least twenty-five
percent (25%) by weight vermiculite that is used for catalytic
converters ("XPE");
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ii) products which are identical to, or which are considered by users
as equivalent to or that compete with products manufactured by
SEPR or SEPR's Affiliates;
iii) products which may be manufactured by The Carborundum Group after
the Effective Date pursuant to the License Agreement; and
iv) products which are manufactured by SEPR after the Effective Date
pursuant to the Distributed Product License Agreement or deemed
added to the Distributed Product License Agreement pursuant to
SECTIONS 5.02 or 6.01 of this Agreement .
1.08 "Effective Date" shall mean the date this Agreement is executed by all
the parties hereto.
1.09 "License Agreement" shall mean the license agreement entered into
between SEPR and the Company and effective the date hereof.
1.10 "NAF" shall mean the ceramic fibers business of the Company, located
in the United States (and its territories), Canada and Mexico.
1.11 "Non-Compete Agreement" shall mean the non-compete agreement entered
into between SEPR, Company and BP effective the date hereof.
1.12 "Nondefaulting Party" shall have the meaning specified in SECTION
10.01.
1.13 "Selling Territory" shall mean the world excluding the United States
(and its territories), Canada and Mexico.
1.14 "SEPR" means, jointly and severally, SEPR and any of SEPR's
Affiliate(s) receiving rights from SEPR pursuant to SECTION 2.02.
1.15 "Affiliate(s)" means any company of which a party hereto now or
hereafter owns or controls, directly or indirectly, at least 50% of
the stock having the right to vote for directors thereof. For the
purpose of this definition, the stock owned or controlled by a
particular company shall be deemed to include all stock owned or
controlled directly or indirectly by any other company of which that
particular company owns or controls,
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directly or indirectly, at least 50% numerically of the stock having
the right to vote for directors thereof. When used in connection with
Company, the term "Affiliate" shall also include any company while it
directly or indirectly controls the Company, including BP, and all
affiliates of that company. When used in connection with SEPR,
affiliate shall also include any company while it directly or
indirectly controls SEPR, including Compagnie de Saint-Gobain, and all
affiliates of that company.
1.16 "Trademark Agreement" shall mean the Trademark License and Consent
Agreement between the Company and SEPR dated the date hereof.
ARTICLE 2 - OBJECT
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2.01 Grant. COMPANY hereby grants to SEPR, under the conditions set forth
herein, and SEPR hereby accepts, the exclusive right to sell the
Distributed Products in the Selling Territory.
2.02 SEPR's Affiliates(s). SEPR shall have the right to sub-grant to any of
SEPR's Affiliates the right to sell all or part of the Distributed
Products within part or all of the Selling Territory. In such a case,
SEPR shall inform Company in writing of the name of SEPR's Affiliates
which shall be entrusted with the sale of the Distributed Products in
each specific part of the Selling Territory, and the sales of
Distributed Products by Company to such of SEPR's Affiliates shall
then in any respect be governed by the disposition of this Agreement
as if such of SEPR's Affiliates were a party to this Agreement.
Company agrees and SEPR agrees to cause SEPR's Affiliates, as
appropriate, to execute and deliver such other instruments or take
such other actions as the other may reasonably request to implement
this provision. SEPR shall have the right, at its sole discretion, to
modify at any time the list of SEPR's Affiliates entrusted with the
sale of the Distributed Products within the Selling Territory, in
which case the preceding provisions shall continue to apply.
ARTICLE 3 - EXCLUSIVITY
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Company hereby undertakes during the term of this Agreement:
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i) in respect to the Selling Territory, to sell the Distributed Products
exclusively to SEPR; and
ii) not to supply, in the Selling Territory, the Distributed Products to
any other users provided, however, that nothing in this Agreement
shall prevent or restrict the Company from a) selling or shipping XPE
Products into the Selling Territory to any end-user, distributor or
re-seller, or b) supplying and delivering the Distributed Products or
the Excluded Products outside the Selling Territory to end-users in
the Selling Territory (an end-user shall not mean a distributor or
re-seller); and
iii) due to the exclusivity hereby granted, neither to promote or maintain
an inventory of Distributed Products within the Selling Territory; and
iv) not to supply Excluded Products (except XPE) in the Selling Territory
for the duration of the Non-Compete Agreement.
ARTICLE 4 - NATURE OF DISTRIBUTORSHIP
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4.01 Authority and Capacity. SEPR is an independent contractor, is not an
agent of the Company and is not authorized to waive any right or to
incur, assume or create any debt, obligation, contract or release of
any kind in the name of or on behalf of the Company. Nothing herein
shall be construed so as to create an employer-employee, agency,
partnership, or joint venture relationship between the parties hereto.
4.02 Manufacture and Modification of Distributed Products. Except pursuant
to the SECTION 9.02, SEPR shall not manufacture or duplicate and,
except to the extent required by law as notified to the Company,
modify, add to or alter the Distributed Products without the prior
written consent to the Company except that SEPR may continue to cut
fiber paper rolls and textile products into smaller sizes. SEPR shall
not solicit customers for the Distributed Products or ship the
Distributed Products to Customers, outside the Selling Territory
provided, however, that nothing in this Agreement shall prevent or
restrict SEPR from supplying and delivering the Distributed Products
inside the Selling Territory to end-users outside the Selling
Territory.
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ARTICLE 5 - SEPR OBLIGATIONS
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5.01 Marketing Efforts. SEPR shall exercise reasonable efforts to
advertise, promote and market the Distributed Products and not to
damage the goodwill of the Company. SEPR shall conduct its activities
relating to the marketing of the Distributed Products in a
professional manner and in accordance with the reasonable policies and
procedures of the Company including the Product Stewardship Program,
attached hereto as SCHEDULE Q (or a comparable program with respect to
Refractory Ceramic Fibers products), and the terms of this Agreement.
SEPR shall maintain at all times a sufficient stock of Distributed
Products to supply its customers in the ordinary course of business.
5.02 Sales Estimates.
(a) SEPR shall use its best efforts to purchase and sell during the
first year of this Agreement the Distributed Products listed on
SCHEDULE A, in the amounts set forth on SCHEDULE B attached
hereto. However, within 30 days following the Effective Date,
SEPR may at its sole option, after discussion with the Company,
elect to be bound by SCHEDULE A1 (instead of A) and SCHEDULE B1
(instead of B). In such a case, SEPR shall inform the Company in
writing, and then any reference to SCHEDULE A and/or B related to
the first year of this Agreement shall be replaced--mutatis
mutandis--by a reference to SCHEDULE A1 and B1. At least four (4)
months prior to the expiration of each year (measured from the
Effective Date) of this Agreement or of any renewal term hereof,
SEPR shall submit to Company a schedule setting forth the
quantity of such Distributed Products that SEPR estimates it
would purchase and sell during the following year. At least three
(3) months before the end of each year the parties shall meet to
negotiate in good faith and agree the quantities of the
Distributed Products SEPR intends to purchase and sell during the
following year. In the event that the Company and SEPR cannot
agree on the quantities of the Distributed Products to be
purchased and sold by SEPR within the said three (3) month period
before each new year of the Agreement, the projected quantities
for the new year shall be in an amount equal to the amount
purchased in the previous year and the Agreement shall, without
any further action on the part of either
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party, be deemed terminated at the end of such year for any of
the Distributed Products subject to disagreement. In the event
that SEPR fails to purchase and sell in any year of this
Agreement the quantity of any of the Distributed Products that
SEPR estimated it would sell in such year, the Company may upon
twelve (12) months notice elect to terminate such Distributed
Products from this Agreement. This cause for termination shall
not prevent SEPR from receiving a Distributed Product License as
provided in SECTION 9.02.
(b) SEPR shall purchase and sell sufficient quantities of Distributed
Products added in this Agreement in accordance with SECTION
1.06(ii) to fill customer demand or Company may seek an
appropriate remedy pursuant to SECTION 12.04.
5.03 Continuity of Distributed Products.During the term of this Agreement:
(a) SEPR shall make the Distributed Products offered as of the
Effective Date available to customers either as a distributor
pursuant to the terms of this Agreement or as a manufacturer
pursuant to the terms of the Distributed Product License
Agreement; and
(b) SEPR and Kerlane shall not purchase substitutes for the
Distributed Products from any alternative sources of ceramic
fiber products. This commitment shall cease for those of the
Distributed Products which are excluded from the scope of this
Agreement in accordance with SECTIONS 5.02 Or 6.01(a). Nothing in
this SECTION 5.03(b) shall prevent Kerlane continuing to source
product already sourced from suppliers other than NAF for
distribution to Kerlane's existing customers as of the date
hereof.
5.04 Advertising and Samples.
(a) SEPR shall advertise the sale of the Distributed Products in a
manner that will develop customer interest and confidence in the
Distributed Products as reasonably agreed from time to time.
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(b) SEPR will provide the Company with commercial brochures to
establish that such advertising material does not tend to mislead
or deceive the public or be injurious to Company's business,
reputation or Company's trademarks.
(c) Company shall make available to SEPR reasonable quantities of
sales aids, sales brochures, and similar promotional materials
relating to the sale of the Distributed Products without charge
and shall communicate to SEPR the name of any customers from the
Selling Territory who contact Company directly regarding the
Distributed Products.
(d) Company shall provide reasonable quantities of new Distributed
Products to SEPR for testing by SEPR's customers free of charge,
F.O.B. Company's manufacturing facility. For current Distributed
Products (and new Distributed Products more than one (1) year
after commercialization,) SEPR shall provide customers reasonable
quantities of samples from its inventory, such costs to be for
SEPR's account.
ARTICLE 6 - PRICES
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6.01 Pricing.
(a) The Company's current price list for Distributed Products listed
on SCHEDULE A is set forth on SCHEDULE C attached hereto. The
price payable by SEPR will be less a distributor discount also
set forth on SCHEDULE C expressed as a percentage which discount
will apply for the period of the Effective Date and ending on a
date one year thereafter. The Company reserves the right to
change its price list for Distributed Products i) to the extent
that it has changed its price list to its distributors in the
United States, ii) with a maximum increase equal to the increase
in the United States, and iii) with effect from the beginning of
each year of this Agreement by giving four (4) months written
notice to SEPR. The distributor discount may be subject to change
one (1) year from the Effective Date and annually thereafter. At
least three (3) months before the end of each year (measured from
the Effective Date) of this Agreement, the parties shall meet in
order to negotiate in good faith the
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distributor discounts that shall be applicable during the
following year. In the event that the Company and SEPR cannot
agree on the distributor discount within the said three (3) month
period before each new year of the Agreement, the distributor
discount and the price list for the Distributed Products subject
to disagreement shall remain unchanged for the new year and the
Agreement shall, without any further action on the part of either
party, be deemed terminated at the end of such year for the
Distributed Products subject to disagreement. All prices shall be
exclusive of tariffs, duties, sales taxes, use taxes, and like
levies or taxes, and all insurance, shipping, freight and
delivery charges as further defined in SECTION 6.04. All prices
shall be specified and payable in U.S. dollars.
(b) The distributor discount for any Distributed Products added to
this Agreement in accordance with SECTION 1.06(ii) will be the
appropriate North American published list price for the
appropriate quantity less fifteen percent (15%).
6.02 Payment Procedures. Payments for Distributed Products shall be made by
wire transfer in United States Dollars to Company's bank account
designated in writing for such purpose. The terms shall be net thirty
(30) days from invoice. In addition to any rights it may have under
this Agreement or under any law, rule or regulation, Company shall
have the right to cancel any order placed hereunder or to refuse or
delay the shipment thereof, for failure of SEPR to make timely
payments of amounts due hereunder. Lastly, in the event that any
invoiced amount remains unpaid after sixty (60) days from the invoice
date, SEPR agrees to pay interest from that date forward on such
outstanding balance at an interest rate of one and one-half (1 1/2)
percent above the rate quoted from time to time as its prime rate as
announced in New York City, New York by Chase Manhattan Bank;
provided, however, that SEPR's agreement to pay interest on such
overdue obligations does not imply that Company will extend any
maturity dates for such overdue obligations.
6.03 Response to Purchase Orders. Orders for Distributed Products shall be
binding upon the parties upon acceptance by an authorized
representative of Company. All orders will be deemed to reference this
Agreement and will be governed by the terms of this Agreement. Any
term or condition
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set forth on any order or other document submitted by SEPR which is
inconsistent with any term or condition of this Agreement shall be of
no force or effect, unless accepted in writing by an authorized
officer of Company. Acknowledgment of an order shall not constitute
acceptance of any inconsistent term unless specifically so stated
therein.
6.04 Terms of Delivery. Unless otherwise mutually agreed, all shipments of
the Distributed Products by Company shall be prepared for shipment by
surface vessel, F.O.B. Company's manufacturing facility. Company shall
pay:
i) any and all sales or use taxes and like levies or taxes levied by
the United States government or any political sub-divisions
thereof; and
ii) the cost of standard packaging and packing the Distributed
Products for export.
SEPR shall pay all costs and expenses incurred after the F.O.B. point,
including, without limitation, insurance, freight, taxes and import
tariffs and duties. Title to and risk of loss of Distributed Products
shall pass to SEPR upon delivery to the carrier at the F.O.B. point.
ARTICLE 7 - INTELLECTUAL PROPERTY
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7.01 Proprietary Rights. All patents and patent applications, trademarks,
servicemarks, copyrights, tradenames and other proprietary rights in
and with respect to the Distributed Products are and will remain
exclusively the property of the Company. During the term of this
Agreement, SEPR may indicate that it is an authorized distributor of
the Company and may use the trademarks, servicemarks, logos, symbols
and tradenames of the Company applicable to the Distributed Products
in connection with SEPR's advertising, promotion, distribution and
sale of the Distributed Products in the Selling Territory in
accordance with the terms of this Agreement. SEPR shall not remove
from, alter or add to any tradename, label, logo, decal, trademark,
patent number or serial number affixed by the Company to any
Distributed Products. SEPR shall not directly or indirectly obtain or
attempt to obtain at any time any right, title or interest by
registration or otherwise in or to the tradenames, trademarks, symbols
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or designations owned or used by Company. Whenever SEPR is permitted
to employ any trademark or servicemark of Company in any form of
printed material, SEPR shall place an asterisk immediately after and
slightly above the first use of the trademark referring to a
footnotereading "used under license" or "licensed trademark." SEPR
shall notify Company of any use of Company's trademark or tradename
which comes to its attention that may infringe upon Company's
trademark's rights.
7.02 Confidentiality. SEPR shall not use or disclose to third parties any
confidential or proprietary information of Company, including any
drawings, design and manufacturing information, or other proprietary
information it has concerning the Distributed Products delivered to
SEPR hereunder except as authorized in writing by Company or to
fulfill the obligations of this Agreement.
7.03 Indemnification.
(a) Company shall indemnify, defend and hold SEPR harmless from and
against all claims that any Distributed Products infringe any
patent, trademark, servicemark, tradename or other intellectual
property rights in the Selling Territory. Company shall assume
the defense of any suit based on any such claim of infringement
brought against SEPR specifically relating to the Distributed
Products. Company shall pay any damages assessed against or
otherwise payable by SEPR as a result of the final disposition of
any such suit. In the event SEPR is enjoined by reason of
infringement from the sale or use of the Distributed Products,
Company shall, at its sole cost and expense, take all reasonable
steps to procure for SEPR the right to distribute and sell the
Distributed Products. If Company cannot procure such right within
a reasonable time, Company shall within ninety (90) days:
i) modify the Distributed Products to avoid infringement of any
patent or proprietary interest; or
ii) in the event such modification is not feasible, Company
shall refund the full purchase price of all such infringing
Distributed Products and all costs of freight and other
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incidental charges incurred by SEPR and SEPR shall return
such infringing Distributed Products to Company with title
and risk of loss or damage to revert to Company upon
delivery to the carrier at SEPR's point of overseas
shipment.
(b) Company's indemnity under this SECTION 7.03 is conditioned upon:
i) SEPR giving prompt written notice to Company of any such
claim or of the commencement of any such suit, or threats
thereof;
ii) Company having full opportunity to conduct the defense
thereof; and
iii) the cooperation of SEPR in the defense of such claim. SEPR
shall not incur any defense costs for Company's account
without Company's written consent.
ARTICLE 8 - WARRANTY
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8.01 Product Warranty
(a) Subject to SECTION 8.01(c), Company warrants that the Distributed
Products sold hereunder shall conform to Company's standard
specifications and shall be free from defects in material and
workmanship under normal and proper use in accordance with
instructions and directions of Company applicable thereto;
provided that, SEPR notifies Company in writing of the nature of
the defect within thirty (30) days after such defect is first
reported to SEPR.
(b) Subject to SECTION 8.01(c), should Distributed Products sold
hereunder fail to perform in accordance with Company's
specifications during the warranty period, SEPR shall repair or
replace, as appropriate, the defective Distributed Products in
question. Company shall establish a credit in favor of SEPR (and,
as appropriate, SEPR shall pass such credit through to its
customer(s)) against the purchase price otherwise payable by SEPR
for Distributed Products purchased hereunder in an amount equal
to
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the cost of replacing or repairing such Distributed Products;
provided that:
i) such defect is reported to Company in accordance with the
provisions of SECTION 8.01(a); and
ii) is proven to be the result of the acts or omissions of the
Company.
(c) Company's warranty obligations to SEPR shall be co-extensive with
and limited to the warranty obligations to retail customers
undertaken by Company pursuant to the Company's standard terms
and conditions of sale attached hereto as SCHEDULE D, as the same
may be amended from time to time by Company in its sole
discretion. Any warranty granted by SEPR which extends beyond the
agreed term and scope of the Company's standard terms and
conditions of sale shall be the warranty of SEPR alone and shall
not bind Company.
8.02 Exclusive Warranty and Limitation of Liability. THE EXPRESS WARRANTIES
SET FORTH IN SECTION 8.01 CONSTITUTE THE ONLY WARRANTIES WITH RESPECT
TO THE DISTRIBUTED PRODUCTS SOLD HEREUNDER. COMPANY MAKES NO OTHER
REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED (EITHER IN
FACT OR BY OPERATION OF LAW), WITH RESPECT TO THE DISTRIBUTED
PRODUCTS, WHETHER AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR
PURPOSE, OR ANY OTHER MATTER. THE STATED EXPRESS WARRANTIES ARE IN
LIEU OF ALL, AND IN NO EVENT SHALL COMPANY BE HELD LIABLE FOR,
LIABILITIES OR OBLIGATIONS FOR DAMAGES, INCLUDING BUT NOT LIMITED TO
SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR LOSS OF USE, REVENUE,
OR PROFITS, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY
BREACH OR REPUDIATION OF THIS AGREEMENT BY COMPANY OR THE FURNISHING,
FUNCTIONING OR SEPR'S OR ANY THIRD PARTY'S USE OF ANY DISTRIBUTED
PRODUCTS PROVIDED FOR IN THIS AGREEMENT. SEPR'S SOLE REMEDY FOR
MANUFACTURER LIABILITY OF ANY KIND INCLUDING NEGLIGENCE, WITH
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RESPECT TO ANY DISTRIBUTED PRODUCT FURNISHED UNDER THIS AGREEMENT,
WHETHER THE CLAIMED LIABILITY IS BASED ON A DEFECT, WHETHER
DISCOVERABLE OR LATENT, SHALL BE LIMITED TO THE REMEDIES PROVIDED IN
SECTION 8.01(b). ANY OTHER REPRESENTATIONS OR WARRANTIES MADE BY ANY
PERSON, INCLUDING EMPLOYEES OR REPRESENTATIVES OF COMPANY, WHICH ARE
INCONSISTENT HEREWITH SHALL BE DISREGARDED BY SEPR AND SHALL NOT BE
BINDING UPON COMPANY. THE WARRANTIES SET FORTH HEREIN MAY BE ASSERTED
BY SEPR ONLY AND NOT SEPR'S CUSTOMERS.
ARTICLE 9 - TERM
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9.01 Term and Additional Term. This Agreement shall, when executed, become
effective and will remain in effect, unless terminated pursuant to
SECTIONS 5.02(a) or 6.01(a) or unless terminated by the Nondefaulting
Party pursuant to SECTION 10.01, for a period ending five (5) years
from the Effective Date. However, if SEPR elects to manufacture all
the Distributed Products listed on SCHEDULE A before the end of the
aforementioned five (5) year period (in accordance with SECTION 9.02)
this Agreement shall terminate with respect to the Distributed
Products listed on SCHEDULE A (but not for Distributed Products
included under SECTION 1.06 ii)) at the date when the Distributed
Product License is fully in force.
9.02 License to Products.
(a) At any time during the term of this Agreement, SEPR may, upon one
(1) year's notice elect to manufacture any one or more of the
Distributed Products listed on SCHEDULE A, under the patent
rights and confidential know-how of Company to manufacture, use
and sell the Distributed Products listed on SCHEDULE A pursuant
to the terms of a license agreement in the form attached hereto
as EXHIBIT D (the "Distributed Product License Agreement").
(b) Any Distributed Products listed on SCHEDULE A terminated from
distribution under this Agreement, pursuant to SECTIONS 5.02(a)
or 6.01(a) shall be licensed to SEPR pursuant to the terms of the
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Distributed Product License Agreement and shall no longer be
distributed by SEPR for the Company.
(c) Upon termination of this Agreement, other than in instances where
SEPR is the Defaulting Party as defined in SECTION 10.01, SEPR
shall obtain rights to manufacture pursuant to the terms of the
Distributed Product License Agreement any of the Distributed
Products listed on SCHEDULE A not already deleted from this
Agreement. Nothing in this Agreement shall require the Company to
license those Distributed Products added in accordance with
SECTION 1.06(ii) to SEPR.
ARTICLE 10 - DEFAULT AND TERMINATION AND EXPIRATION
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10.01 Termination. Either party not in default under this Agreement (the
"Nondefaulting Party") may terminate this Agreement at any time upon
ten (10) days written notice to the other party in default (the
"Defaulting Party") upon the occurrence of any of the following
events:
(a) The Defaulting Party fails to comply with any order or decision
rendered by an arbitrator or a judicial authority in accordance
with SECTION 12.04.
(b) If at any time the Defaulting Party shall generally not pay the
Defaulting Party's debts as they become due or shall admit in
writing its inability to pay its debts, or shall make a general
assignment for the benefit of creditors.
(c) If the Defaulting Party shall commence any case, proceeding or
other action seeking to have an order for relief entered on its
behalf as debtor or to adjudicate the Defaulting Party as
bankrupt or insolvent, or seeking the reorganization,
arrangement, adjustment, liquidation, dissolution or composition
of the Defaulting Party or its debts under any law relating to
bankruptcy, insolvency, reorganization or relief of debtors or
seeking appointment of a receiver, trustee, custodian or other
similar official for the Defaulting Party or for all or a
substantial part of its assets, or any such case, proceeding, or
other actions against the Defaulting Party
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shall commence after the effective date of this Agreement and
such case, proceeding or other action
i) results in the entry of any order for relief against the
Defaulting Party which is not fully stayed within seven (7)
business days after entry thereof; or
ii) shall remain undismissed for a period of forty-five (45)
days.
10.02 Effect of Termination or Expiration. Upon termination of this
Agreement:
(a) In the event SEPR is the Defaulting Party pursuant to SECTION
10.01, all unfilled orders for Distributed Products shall at the
Company's option, be canceled.
(b) SEPR shall discontinue the use of any tradenames, trademarks,
symbols or designations associated with Company or the
Distributed Products and shall immediately discontinue
designating itself as an authorized distributor of Company.
(c) SEPR shall immediately return to Company all items of proprietary
or confidential information delivered to SEPR hereunder to which
SEPR is not entitled to receive pursuant to the Distributed
Products License Agreement referred to in SECTION 9.02.
ARTICLE 11 - KERLANE
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11.01 For avoidance of doubt except as provided in SECTION 5.03(b) nothing
in this Agreement shall be construed or interpreted as limiting any
rights of SEPR's affiliate Kerlane to practice or develop its ceramic
fibers technology, to manufacture use and sell its ceramic fibers
products worldwide, to grant or receive some licenses either to
Affiliates or to third parties, to dispose of its assets or of its
intellectual property rights except to the extent that it receives
rights from SEPR pursuant to SECTION 2.02 in which case it shall be
bound by the terms of this Agreement for the products so distributed
by Kerlane. Company and SEPR agree that the Kerlane products listed in
Kerlane's CATALOGUE Ceramic Fibres dated 05/94 attached hereto as
SCHEDULE E are not products which are identical
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to, or which are considered by users as equivalent to, the Distributed
Products.
ARTICLE 12 - FORCE MAJEURE AND LAWS
-----------------------------------
12.01 Force Majeure. The parties hereto shall not be held liable or
responsible for delay or failure to take any actions called for under
this Agreement occasioned by acts of God, force majeure or any cause
beyond the control of the parties, including but not limited to war;
civil disturbances; fire; flood; earthquake; windstorm; unusually
severe weather; acts or defaults of common carriers; accidents; strike
or other labor trouble; lack of or inability to obtain raw materials,
transportation, labor, fuel or supplies; governmental laws, acts,
regulations, embargoes, or orders (whether or not such later prove to
be invalid); any of which shall release the parties from the
performance of this Agreement.
12.02 Compliance with Laws and Regulations. This Agreement shall comply
with and its obligations shall be performed in accordance with the
laws, whether national or supranational, of all jurisdictions in which
the Agreement is to be performed (including the United States). If any
provision of this Agreement constitutes a breach of any applicable law
or is considered to be or will be void or unenforceable, such
provision shall be deemed to be deleted and the remaining provisions
shall continue in full force and effect.
12.03 Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Ohio without
regard to rules on choice of law and SEPR hereby consents to submit to
the jurisdiction of the American Arbitration Association located in
New York, New York in the event of any dispute between the parties and
to the jurisdiction of applicable courts in the United States and
elsewhere to enforce any award of said American Arbitration
Association, or to grant any interim relief as set forth in SECTION
12.04.
12.04 Dispute Resolution. In the event of any dispute, claim, question, or
disagreement arising out of or relating to this Agreement or the
breach thereof, the parties hereto shall use their best efforts to
settle such disputes, claims, questions, or disagreements. To this
effect, they shall consult and negotiate with each other in good faith
and, recognizing their
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mutual interests, attempt to reach a just and equitable solution
satisfactory to both parties. If they do not reach such solution
within a period of thirty (30) days, either party may submit the
dispute to binding arbitration administered by the American
Arbitration Association under its International Arbitration Rules. The
place of arbitration shall be New York, New York and the language of
arbitration shall be English. The number of arbitrators shall be
three, unless the parties agree otherwise. Both parties agree that
time is of the essence in any arbitration. Each party shall submit
their choice of an arbitrator to the Association within five (5)
business days after receiving notice from the Association of an
arbitration proceeding. The arbitrators so selected shall have five
(5) business days to select a third arbitrator. If the arbitrators
selected by the parties cannot agree on a third arbitrator within this
time period, then a third arbitrator shall be selected by the
Association to complete the panel. The parties agree that an
arbitrator may grant a party's request for a preliminary injunction to
minimize damage in an appropriate circumstance. As an aid to
arbitration, either party may also seek assistance from judicial
authorities to provide interim relief, such as an injunction, if
necessary.
ARTICLE 13- GENERAL
-------------------
13.01 Notices. All notices, requests, demands and other communications
required or permitted to be given under this Agreement shall be deemed
to have been duly given if in writing and delivered personally, or
five (5) business days after being mailed first class, postage
prepaid, registered or certified mail, or if telecopied and confirmed
by one of the preceding methods, as follows:
If to SEPR:
Societe Europeenne des Produits Refractaires
Les Miroirs
18 Avenue d'Alsace
92400 Courbevoie
Attention: Legal Affairs Department
Fax: 00-0-00-00-00-00
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If to Company:
Unifrax Corporation
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxx Xxxx 00000
Attention: Vice President Sales & Marketing
Fax: 000-000-0000
Any party may change the address to which such communications are to
be directed to it by giving written notice to the other in the manner
specified in this SECTION 13.01.
13.02 Entire Agreement. This Agreement and the attached schedules referred
to herein set forth the entire agreement and understanding of the
parties in respect to the transactions contemplated hereby and
supersede all prior agreements, arrangements and undertakings relating
to the subject matter hereof.
13.03 Successors and Assigns. This Agreement shall be binding on and inure
to the benefit of SEPR and Company and their respective successors.
Except as provided in SECTION 2.02, and except that Company must
assign all of its rights and obligations herein to any purchaser or
assignee of substantially all of NAF's assets, this Agreement and the
rights and obligations of the parties thereto may not be assigned
without the prior written consent of the other party hereto.
13.04 Amendment. This Agreement may be amended, modified, superseded or
canceled, and any of the terms, covenants, representations, warranties
or conditions hereof may be waived, only by a written instrument
executed by the parties hereto, or, in the case of a waiver, by or on
behalf of the party waiving compliance. The failure of any party at
any time or times to require performance of any provision hereof shall
in no manner affect the right at a later time to enforce the same. No
waiver by any party of any condition, or of any breach of any term,
covenant, representation or warranty contained in this Agreement, in
any one or more instances, shall be deemed to be or construed as a
further or continuing waiver of any such condition or breach or waiver
of any other condition or of any breach of any other term, covenant,
representation or warranty.
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13.05 Headings/Counterpart. The article or section headings contained in
this Agreement are for convenient reference only, and shall not in any
way affect the meaning or interpretation of this Agreement. This
Agreement may be executed simultaneously in two or more counterparts,
each of which shall be deemed an original, but all of which shall
constitute but one.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
in two original copies by their duly authorized representatives as of the day
and year first above written.
UNIFRAX CORPORATION SOCIETE EUROPEENNE DES
PRODUITS REFRACTAIRES
By:____________________________ By:____________________________
Name: Xxxxxxxxxxx X. Xxxxxx Name: _________________________
Title: Attorney-In-Fact Title:___________________________
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FIBERS N. AMERICA
DISTRIBUTED PRODUCTS SALES VOLUME
1984 ACTUAL AND 1995 PLAN
-------------------------
QUANTITY
--------
UNIT OF 1994 1995
MEASURE ACTUAL PLAN
------- ------ ----
FIBERFRAX LONG STAPLE LBS. [ * ]
FIBERFRAX PH BLANKET SF [ * ]
FIBERFRAX 972H PAPERS AND BB2H (BURN GRADES) SF [ * ]
FIBERFRAX PAPER-880 SERIES SF [ * ]
FIBERFRAX PAPER-560 SERIES SF [ * ]
FIBERFRAX PAPER-440 SERIES SF [ * ]
FIBERFRAX PAPER-110 SERIES SF [ * ]
FIBERFRAX ROPE LF [ * ]
FIBERFRAX HIGH DENSITY ROPE LF [ * ]
FIBERFRAX SQUARE BRAID LF [ * ]
FIBERFRAX ROUND BRAID LF [ * ]
FIBERFRAX TAPE LF [ * ]
FIBERFRAX CLOTH SF [ * ]
FIBERSIL CLOTH SY [ * ]
FIBERSIL TAPE LF [ * ]
FIBERMAX BULK FIBER LBS. [ * ]
FIBERMAX MAT SF [ * ]
FIBERMAX LS MAT SF [ * ]
(a) Based on 1/2" product.
(b) Based on 1" product.
SCHEDULE B
* Brackets indicate confidential material omitted and filed separately with the
S.E.C.
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Schedule A1/B1
DISTRIBUTED PRODUCTS PURCHASES
1995 ACTUAL QUANTITIES
PRODUCT UNIT OF MEASURE SUBSIDIARY TOTAL OTHER EXPORTS TOTAL GRAND TOTAL
------- --------------- ---------------- ------------------- -----------
HSA-K Fiber LBS. [ * ]
HSA-HP Fiber LBS. [ * ]
Regular Till Fiber LBS. [ * ]
Chopped Till Fiber LBS. [ * ]
EF-119 Milled Fiber LBS. [ * ]
Long Staple Fiber LBS. [ * ]
HSA Paper SF [ * ]
110 Paper SF [ * ]
440 Paper SF [ * ]
880 Paper SF [ * ]
972 Paper SF [ * ]
882 Paper SF [ * ]
Rollboard SF [ * ]
Fibermax Bulk LBS. [ * ]
Fibermax Mat SF [ * ]
Fiberfrax Rope LF [ * ]
Fiberfrax HD Rope LF [ * ]
Square Braid LF [ * ]
Round Braid LF [ * ]
Cloth SF [ * ]
Fiberfrax Tape LF [ * ]
Fiberfrax Sleeving SF [ * ]
Yarn/Roving/Wicking LBS. [ * ]
Fibersil Tape LF [ * ]
Fibersil Cloth SY [ * ]
Flexweave LY [ * ]
Flexweave Tape EA. [ * ]
Control Total [ * ]
* Brackets indicate confidential material omitted and filed separately with the
S.E.C.
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SCHEDULE C
DISTRIBUTED PRODUCTS
DISCOUNT SCHEDULE
EUROPE/BRAZIL SPECIAL PRICING
CONTAINER NON-CONTAINER INDENT AUSTRALIA
--------- ------------- ------ ---------
Fiberfrax Long Staple PH Blanket [ * ]
Fiberfrax 972-H Papers [ * ]
Fiberfrax Paper 880 Series [ * ]
Fiberfrax Paper 550 Series [ * ]
Fiberfrax Paper 440 Series [ * ]
Fiberfrax Paper 110 Series [ * ]
Fiberfrax Rope [ * ]
Fiberfrax High Density Rope [ * ]
Fiberfrax Square Braid [ * ]
Fiberfrax Cloth and Tape [ * ]
FibersiI Cloth [ * ]
Fibermax Bulk Fiber [ * ]
Fibermax Mat [ * ]
Fibermax LS Mat [ * ]
* Brackets indicate confidential material omitted and filed separately with the
S.E.C.
3
