EXHIBIT 10.21
PFA Purchase and Supply Agreement
This Agreement, by and between E. I. DU PONT DE NEMOURS AND COMPANY, a
corporation of the State of Delaware having offices at 0000 Xxxxxx Xxxxxx,
Xxxxxxxxxx, Xxxxxxxx 00000 (hereafter "DuPont") and FLUOROWARE, INC., a
corporation of the State of Minnesota, having offices at 0000 Xxxxx Xxxxxxxxx,
Xxxxxx, Xxxxxxxxx 00000 (hereafter "Fluoroware").
W I T N E S E T H
WHEREAS DuPont manufactures and sells PFA resins;
WHEREAS Fluoroware has for some period of time has purchased PFA resins
from DuPont; and
WHEREAS DuPont desires to continue to supply PFA resins to Fluoroware,
and Fluoroware desires to continue to purchase such resins from DuPont;
WHEREAS Fluoroware generates regrind PFA as a result of its molding
operations and is interested in making a certain quantity of this regrind PFA
available to DuPont for purchase, and DuPont is interested in having a right of
first refusal to purchase such product;
NOW, THEREFORE, in consideration of the mutual covenants and promises
set forth herein, the parties agree as follows:
ARTICLE 1 - TERM AND SCOPE
1.1 This Agreement shall cover the period November 1, 1998 to August
31, 2000. No less than six (6) months prior to the end of such period, the
parties will enter into discussions regarding the terms and conditions under
which this Agreement can be extended.
1.2 This Agreement shall relate solely to the following matters:
(A) supply of PFA resins by DuPont to Fluoroware in the United
States; and
(B) DuPont's right of first refusal to purchase regrind PFA
generated from Fluoroware's molding operations in the United States.
ARTICLE 2 - PRODUCT
2.1 DuPont will sell, and Fluoroware will purchase the following PFA
resins (hereafter "PFA Product") as further described in the "Fluoroware Resin
Specification & Control
Plans" as set forth on Attachments A, B, C, D, E, F and G hereto or as such
attachments are amended and mutually agreed upon from time to time (hereafter
"Fluoroware Resin Specifications"):
440 HP (A, B, and D Grades)
445 HP
450 HP
TE-5789 Conductive PFA Resin
XX-0000 Xxxxxxxxxxx Powder
2.2 Fluoroware will make available, and DuPont will have a right of
first refusal to purchase a certain quantity of Regrind PFA (hereafter
"Regrind") that is generated from Fluoroware's molding operations and which is
in excess of Fluoroware's internal Regrind needs. This Regrind will be made
available in three different classes: Class A, Class C, and Class D, which
classifications describe the types of Regrind in terms of degree of cleanliness,
as shown in Attachment H.
2.3 New Resins introduced into the market by DuPont are not included as
part of this agreement, but can be made part of this agreement upon mutual
agreement between Fluoroware and DuPont.
ARTICLE 3 - QUALITY ASSURANCE
3.1 DuPont warrants to Fluoroware that the PFA Product will conform to
DuPont's PFA Product specifications and will provide certification with each
shipment of PFA Product indicating compliance with appropriate Fluoroware Resin
Specifications. Other than the foregoing, DUPONT MAKES NO WARRANTIES OF
MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE EVEN IF THAT PURPOSE IS
KNOWN TO DUPONT, NOR ANY OTHER EXPRESS OR IMPLIED WARRANTY. Fluoroware assumes
all risk and liability for results obtained by the use of the PFA Product
covered by this Agreement, whether used singly or in combination with other
products.
ARTICLE 4 - INSPECTION
4.1 For the purpose of confirming compliance with Fluoroware Resins
Specifications all PFA Product supplied hereunder shall be subject to inspection
by Fluoroware. In the event that Fluoroware and DuPont mutually agree that any
of the PFA Product shipped to Fluoroware under this Agreement does not meet the
appropriate Fluoroware Resin Specifications, then Fluoroware shall have the
right to reject such PFA Product by giving DuPont prompt notice thereof. DuPont
may at its option obtain samples of the rejected PFA Product from Fluoroware for
analysis. DuPont will, subject to availability, endeavor to ship replacement PFA
Product to Fluoroware within twenty-one (21) days of receipt of notification of
such rejection and will fully
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credit Fluoroware for the rejected PFA Product. DuPont will be responsible for
any expenses incurred in returning such rejected PFA Product.
ARTICLE 5 - PACKAGING
5.1 Product will be delivered in bulk containers (each nominally
holding sixteen hundred (1600) pounds), or one hundred (100) pound fiber drums
with polyethylene liners, or other containers acceptable to DuPont subject to
the prior written approval of Fluoroware.
ARTICLE 6 - QUANTITY
6.1 In Fluoroware's fiscal years 1999 (Sept. 1, 1998 - Aug. 31, 1999)
through its fiscal year 2000 (Sept. 1, 1999 through August 31, 2000) DuPont
agrees to sell to Fluoroware, at a minimum, the volume of PFA Product shown in
Attachment I. Provided that Fluoroware's total requirements for PFA equal or
exceed the volume shown in Attachment I for the above-identified fiscal years,
Fluoroware agrees to purchase said volume at a minimum. In the event that
Fluoroware's total requirements for PFA fall below the volume set forth in
Attachment I for any of the fiscal years 1999 and 2000, Fluoroware agrees to
purchase a minimum of (*) of its total requirements of PFA for each such year
from DuPont under the terms of this Agreement.
6.2 In each of the fiscal years, DuPont agrees to make available for
sale, at a minimum, an additional (*) of Product to Fluoroware over the agreed
upon volume for the coming fiscal year.
6.3 In the event that Fluoroware's total requirements for PFA exceed
the minimum purchase and supply obligations set forth above in any of the fiscal
years , Fluoroware shall offer DuPont the opportunity to supply under the terms
of this Agreement such additional quantities of Product as shall allow DuPont to
supply in the aggregate a minimum of (*) of Fluoroware's PFA requirements for
that fiscal year. DuPont may elect to supply all or any portion of such
additional quantities of Product.
6.4 The maximum monthly quantity ordered by Fluoroware will not exceed
ten percent (10%) of Fluoroware's annual forecast, as provided for under Article
7, unless agreed to by the parties sixty (60) days prior to the requested ship
date.
ARTICLE 7 - FORECAST REQUIREMENTS
7.1 Fluoroware will provide DuPont a written forecast of its
requirements for PFA Product on an annual basis (by Fluoroware Resin
Specification) no later than ninety (90) days prior to the end of each fiscal
year.
(*) Denotes confidential information that has been omitted and filed
separately, accompanied by a confidential treatment request, with the
Securities and Exchange Commission pursuant to Rule 406 of the
Securities Act of 1933, as amended.
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7.2 Monthly forecast updates will be provided on or before the 30th of
each month. This monthly forecast update will reconfirm the next month's
forecast (Month #1) and will forecast quantities for the next three months
(Months #2, #3, and #4).
ARTICLE 8 - PURCHASE ORDERS
8.1 Purchase orders will be issued for each PFA Product specifying
desired quantities by grade.
ARTICLE 9 - PRICE
9.1 The price of PFA Product will be:
440 HP $(*)/lb.
445 HP $(*)/lb.
450 HP $(*)/lb.
TE-5789 $(*)/lb.
TE-7016 $(*)/lb.
9.2 The price of PFA Regrind purchased from Fluoroware will be more
favorable than the median price for PFA regrind that Fluoroware can obtain in
the open market by a minimum of $(*) per pound. Market price will be established
once per year ( at least 60 days prior to the beginning of the following fiscal
year) by mutual agreement between Fluoroware and DuPont.
9.3 Pricing for new resins developed by DuPont is not a part of this
Agreement and will be agreed upon separately should need arise.
9.4 Should DuPont sell Product, or any other first quality Teflon(& PFA
resin, suitable for use in applications like those currently sold by Fluoroware
to a third party at a price lower than the price of comparable Product sold to
Fluoroware hereunder, then DuPont shall offer Fluoroware the same PFA resin at
the lower price in comparable quantity for such term as the lower price is in
effect with the third party to the extent DuPont is permitted to offer such
lower price by applicable laws and regulations. The foregoing provision of this
Section 9.4 shall only apply to sales from DuPont facilities based in the United
States to customers based in the United States.
(*) Denotes confidential information that has been omitted and filed
separately, accompanied by a confidential treatment request, with the
Securities and Exchange Commission pursuant to Rule 406 of the
Securities Act of 1933, as amended.
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ARTICLE 10 - MARKETING
10.1 During the term of this Agreement, Fluoroware agrees not to
actively promote any other manufacturer of PFA fluoropolymers in the
marketplace.
10.2 DuPont recognizes the contribution Fluoroware has made in
marketing and promoting the attributes and value of Teflon(R) PFA HP product to
the semiconductor industry. Fluoroware's market information access, and
recognition as a leader in the industry are valued. As part of this agreement,
DuPont expects Fluoroware's continuing effort in gaining access and information
regarding new applications and market trends.
10.3 The Parties acknowledge that TEFLON(R) is a registered trademark
of DuPont for its brand of fluoropolymer resins which can only be licensed by
DuPont for use in approved applications. Use of the TEFLON(R) trademark in
connection with DuPont products is not permitted without a license. This license
to be provided under separate agreement.
ARTICLE 11 - SUPPLY ASSURANCE
11.1 Except for adverse circumstances as described in Paragraph 5 of
DuPont's Standard Conditions of Sale, a copy of which is attached hereto as
Attachment J, in the event of a production disruption impacting DuPont's ability
to supply PFA Product hereunder, Fluoroware's pro rata allocation of available
Product quantities will be the most favorable of any offered to any of DuPont's
PFA customers.
ARTICLE 12 - REPORTING
12.1 On a quarterly basis, Fluoroware will provide DuPont with Quality
and Deliverance Performance Ratings. DuPont agrees to develop corrective action
plans for review and approval by Fluoroware when Quality Performance falls below
one hundred percent (100%) and/or Delivery Performance falls below ninety-eight
percent (98%).
ARTICLE 13 - MISCELLANEOUS
13.1 Except as otherwise specifically provided in this Agreement, the
provisions of DuPont's Standard Conditions of Sale shall govern each sale and
shipment made hereunder. A copy of DuPont's Standard Conditions of Sale is made
a part hereof and is set forth as Attachment J hereto.
13.2 This Agreement is not assignable or transferable by either party,
in whole or in part, except with the prior written consent of the other party.
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13.3 This Agreement shall be governed by and interpreted in accordance
with the laws of the State of Delaware. The courts of the State of Delaware
shall have exclusive jurisdiction over any dispute relating to the terms and
conditions of this Agreement.
13.4 The parties mutually agree to the terms of Attachment K, "Year
2000 Agreement."
13.5 This Agreement embodies the entire agreement and understanding
between DuPont and Fluoroware relative to the subject matter hereof and there
are no understandings, agreements, conditions or representations, oral or
written, expressed or implied, with reference to the subject matter hereof that
are not merged or superseded hereby. No amendment, modification or release from
any provision hereof shall be of any force or effect unless it is in writing,
signed by the party claimed to be bound thereby, and specifically refers to this
Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives on the dates indicated below.
E. I. DU POINT DE NEMOURS AND
COMPANY
By: /s/ Xxxxx Xxxxx
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Xxxxx Xxxxx
Title: Global Business Director Fluoroproducts
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Date:
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FLUOROWARE, INC.
By: /s/ Xxx X. Xxxxxxxx
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Xxx X. Xxxxxxxx
Title: Senior Vice President of Operations
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Date: 1/7/99
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ASSIGNMENT AND LIMITED AMENDMENT
This is an ASSIGNMENT and LIMITED AMENDMENT ("Assignment") to the PFA
Purchase and Supply Agreement dated January 7, 1999, which was made effective
retroactively to November 1, 1998 (hereinafter the "Original Agreement") between
E. I. du Pont de Nemours and Company ("DuPont") and Fluoroware, Inc.
("Fluoroware"). Fluoroware merged with Empak, Inc. in June, 1999, to form a new
corporation, Entegris, Inc. ("Entegris"). The purpose of this Assignment and
Limited Amendment is to reflect the assignment by Fluoroware of its rights and
obligations under the Original Agreement to Entegris a Minnesota corporation
with a principal place of business at 0000 Xxxxx Xxxxxxxxx, Xxxxxx, XX 00000, to
which DuPont has consented; and the Original Agreement, as modified by this
Assignment and Limited Amendment, is referred to herein as the "Agreement."
1. Assignment. FOR VALUE RECEIVED, Fluoroware, through Entegris, its
successor in interest, hereby assigns and transfers to Entegris, with the
consent of DuPont, all of its rights, interests and obligations in the Original
Agreement (herein, the "Assigned Rights and Obligations"), and Entegris hereby
accepts and assumes such Assigned Rights and Obligations. DuPont and Entegris
shall cooperate with respect to transition issues and matters raised by this
Assignment and relating to the Agreement; and each shall execute and/or exchange
such further documentation as is reasonably necessary for such purposes.
2. Amendments.
(a) References to DuPont. With respect to all matters arising under
the Agreement on or after the Effective Date, all references in the
Original Agreement to "Fluoroware" shall be deemed to refer to "Entegris."
(b) Period of Agreement. The first sentence of Section 1.1 of the
Original Agreement is hereby amended in its entirety to read as follows:
"This Agreement shall cover the period November 1, 1998, through August 31,
2003."
(c) Scope. Section 1.2(A) of the Original Agreement is amended in its
entirety to read as follows:
This Agreement shall relate solely to the following matters:
(A) supply of PFA resins by DuPont to all Entegris facilities in
the United States;....
(d) Quantity.
(i) Section 6.1 of the Original Agreement is amended in its
entirety to read as follows:
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DuPont agrees to sell to Fluoroware, at a minimum, the
volume of PFA. Product shown in Attachment I, during the
Fluoroware fiscal years indicated therein. Provided that
Fluoroware's total requirements for PFA equal or exceed the
volume shown in Attachment I for such fiscal years,
Fluoroware agrees to purchase said volume at a minimum. For
any year in which Fluoroware's total requirements for PFA
fall below the volume set forth in Attachment I, Fluoroware
agrees to purchase a minimum of (*) of its total
requirements of PFA for each such year from DuPont under the
terms of this Agreement.
(ii) Attachment I from the Original Agreement is hereby replaced
in its entirety by the new Attachment I, attached hereto as
Exhibit A.
4. Prices. Section 9.1 of the Original Agreement is amended in its entirety
to read as follows:
(a) The price of PFA Product for the period November 1, 1998 to August 31,
2000 will be:
Product Price
------- -----
440 HP $(*)/lb.
445 HP $(*)/lb.
450 HP $(*)/lb.
TE-5789 $(*)/lb.
TE-7016 $(*)/lb.
(b) The price of PFA Product for the period September 1, 2000 through
August 31, 2003 will be:
Product Price
------- -----
440 HP $(*)/lb.
445 HP $(*)/lb.
450 HP $(*)/lb.
TE-5789 $(*)/lb.
TE-7016 $(*)/lb.
(*) Denotes confidential information that has been omitted and filed
separately, accompanied by a confidential treatment request, with the
Securities and Exchange Commission pursuant to Rule 406 of the
Securities Act of 1933, as amended.
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(c) Fluoroware acknowledges that DuPont intends to replace TE-7016 with a
new resin by approximately the fourth quarter of 1999. Pricing for
that resin will be negotiated at the time of the resin introduction.
3. Survival: Confirmation. Except as expressly modified hereby, all of the
terms and conditions of the Original Agreement remain in full force and effect
and the parties hereby confirm them in all respects.
ACCORDINGLY, the parties have caused this ASSIGNMENT and LIMITED AMENDMENT
to be executed and delivered by their duly authorized representatives.
E. I. du Pont de Nemours and Company
By: /s/ Xxxxx Xxxxxx
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Title: Director, Fluoropolymers Americas
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Date: September 20, 1999
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Fluoroware, Inc. (now known as Entegris,
Inc.)
By: /s/ Xxxx Xxxxxx
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Title: Materials Manager
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Date: September 24, 1999
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Entegris, Inc.
By: Xxx Xxxxxxxx
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Title: Senior Vice President of Operations
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Date: September 24, 1999
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