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EXHIBIT 10.2
THIS DOCUMENT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST
PURSUANT TO RULE 24B-2 OF THE COMMISSION.
ROD SUPPLY AGREEMENT
This Rod Supply Agreement ("Agreement") is made and entered into by
and between GS Industries, Inc., a Delaware corporation ("GSI") and Florida
Wire and Cable, Inc., a Delaware corporation ("FWC"), effective as of the 19th
day of November, 1999.
RECITALS
A. FWC produces PC Strand, pipe wrap, xxx xxxxxx, utility strand,
and other high carbon wire products.
B. GSI, through subsidiary corporations, produces wire rod at plants
located in Georgetown, South Carolina and Kansas City, Missouri suitable for
use by FWC as the raw material for its wire products.
C. The parties desire to enter into this Agreement whereby GSI,
through its subsidiaries, will supply and FWC will purchase [*] FWC's
requirements for wire rod.
THEREFORE, IN CONSIDERATION of the foregoing premises, the mutual
promises and covenants herein set forth and other good and valuable
consideration, the sufficiency and receipt of which is hereby acknowledged, the
parties agree as follows:
* Confidential portion has been omitted and filed separately with the
Commission.
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AGREEMENT
1. DEFINITIONS
The following words and phrases shall have the meanings indicated
when used in this Agreement:
"Acquisitions" shall mean all acquisitions of HC Rod, regardless
of whether by purchase, intercompany transfer (including, without limitation,
any conversions for fees) or otherwise.
"Carry Over Tons" shall mean Tons of HC Rod ordered by a customer,
including without limitation FWC, for delivery to the customer during any
single month and which are actually delivered to the customer during a
subsequent month or months.
[*]
"Contract Year" shall mean the period between January 1, 2000 and
December 31, 2000 and thereafter every twelve month period during the term
hereof beginning on January 1 and ending on December 31. Whenever any quantity
referenced in this Agreement is to be measured against a Contract Year and if
this Agreement ends for any reason on any date other than the end of the
Contract Year, then such quantity shall be prorated by such portion of a year
represented by the period from the end of the last Contract Year to the ending
date of this Agreement.
"Domestic Suppliers" shall mean suppliers of PC Xxxxxx Xxx to
either or both of FWC and Insteel to the extent the PC Xxxxxx Xxx sold to FWC
or Insteel is produced by such supplier at a facility located in the United
States.
"Effective Date" shall mean the date on which Insteel acquires the
outstanding capital stock of FWC from GSI's affiliate, GS Technologies
Operating Co., Inc., pursuant to the Stock Purchase Agreement dated November
19, 1999 between Insteel and GS Technologies Operating Co., Inc. "GSC" shall
mean Georgetown Steel Corporation, a
* Confidential portion has been omitted and filed separately with the
Commission.
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Delaware corporation.
"HC Rods" shall mean the prime quality high carbon wire rods described
on, or substantially equivalent to those described on, Exhibit 2 to this
Agreement, which rods contain a carbon content of Four-Tenths of One Percent
(0.40%) or higher and are of the type manufactured by GSI's subsidiaries and
used in FWC's manufacturing plants in the production of PC Strand, pipe wrap,
xxx xxxxxx, utility strand and other high carbon wire products; and provided,
that upholstery spring wire shall in no event be considered utility strand for
any purposes of this Agreement.
"Insteel" shall mean Insteel Industries, Inc., a North Carolina
corporation.
[*]
"PC Strand" shall mean steel wire strand primarily for use in
reinforced concrete and known in the industry as prestressed concrete strand.
"PC Xxxxxx Xxx" shall mean wire rod for use as the raw material in the
production of PC Strand.
"Price" shall mean the delivered purchase price per Ton for HC Rods
ordered by FWC under this Agreement and shall include the cost of freight and
exclude all sales, use and similar taxes on the sale and delivery of the HC
Rods.
"Ton" shall mean a short ton of 2,000 pounds.
2. PURCHASE AND SALE
2.01 Subject to the terms and conditions of this Agreement,
FWC hereby agrees to purchase for its own use in production from GSI during the
period commencing on the Effective Date and ending on December 31, 1999 at
least [*] of FWC's requirements for HC Rods (as measured by FWC's actual
Acquisitions); provided that for purposes of determining whether FWC has
fulfilled its obligations to purchase
* Confidential portion has been omitted and filed separately with the
Commission.
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from GSI at least [*] of FWC's requirements for HC Rods (as measured by FWC's
actual Acquisitions), all purchases by Insteel of HC Rod from GSI for delivery
to its Gallatin, Tennessee facility shall be considered to be purchases by FWC.
Subject to the terms and conditions of this Agreement, FWC hereby agrees to
purchase for its own use in production from GSI each calendar quarter of each
Contract Year [*] of FWC's requirements for HC Rods (as measured by FWC's
actual Acquisitions) up to aggregate purchases from GSI of [*] Tons for each
Contract Year; provided, that FWC shall purchase from GSI a minimum of [*] Tons
of HC Rods each Contract Year; and further provided, that for purposes of
determining whether FWC has fulfilled its obligations to purchase from GSI at
least [*] of FWC's requirements for HC Rods (as measured by FWC's actual
Acquisitions) and at least [*] Tons of HC Rod each Contract Year, all purchases
by Insteel of HC Rod from GSI for delivery to its Gallatin, Tennessee facility
shall be considered to be purchases by FWC. FWC may but is not required to
place orders with GSI for more than [*] Tons of HC Rods in any Contract Year,
and GSI may but is not required to accept some or all of such orders. For
purposes of this Section 2.01, FWC shall mean FWC and any subsidiary entities
in which FWC holds, directly or indirectly, fifty percent (50%) or more of the
voting stock or equity or in which FWC has the ability to elect or control the
management of such entity. For purposes of this Section 2.01, HC Rod shall be
considered purchased upon shipment.
2.02 GSI hereby agrees to sell and deliver to FWC all of the
HC Rods ordered by FWC for its own use in production during the term of this
Agreement; provided, that GSI shall not be required to sell or deliver more
than [*] Tons of HC Rods
* Confidential portion has been omitted and filed separately with the
Commission.
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to FWC during any Contract Year.
2.03 Title and risk of loss to the HC Rods shall pass to FWC
upon shipment; provided that the transfer of title and risk of loss upon
shipment shall not be construed to modify or affect GSI's obligations to
deliver to FWC's facility HC Rod complying with GSI's warranties as provided in
Section 7.02 hereof. All purchases, sales and deliveries of HC Rods by GSI to
FWC during the term hereof shall be made pursuant to the terms and provisions
of this Agreement. Additional or inconsistent terms or provisions contained in
any purchase order or purchase order confirmation or similar commercial
document shall not be effective unless stated in a writing signed by both
parties.
2.04 The parties hereto agree that [*] are expressly excluded
from this Agreement. GSI may supply these products to FWC in quantities, on
terms and at prices to be agreed upon by GSI and FWC.
3. SCHEDULING
3.01 No later than the 15th day of each month immediately
preceding the end of a calendar quarter, FWC shall submit its written purchase
order to GSI for HC Rods for delivery during the coming calendar quarter. FWC
shall endeavor to equalize the quantity requested for each month. FWC shall
endeavor to place orders with GSI which, when combined with orders of HC Rod
placed with GSI by Insteel for delivery to its Gallatin, Tennessee facility,
shall be for an amount of tons which is at least equal to [*] of FWC's
requirements (as measured by its actual Acquisitions) and not less than [*] nor
more than [*] Tons of HC Rods per quarter. With each written purchase order,
FWC
* Confidential portion has been omitted and filed separately with the
Commission.
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shall provide in writing to GSI delivery dates (which shall be expressed in
weeks) regarding how many Tons of the quarterly order it prefers to be shipped
each week of the quarter. FWC may make reasonable adjustments to its order and
delivery schedule in keeping with normal industry practices to promote good
inventory management and customer service.
4. PRICE
4.01 The Price for the HC Rods initially ordered by FWC
hereunder shall be the respective Price set forth in Exhibit 2 attached hereto
and incorporated herein by reference. Thereafter the Price for HC Rods to be
purchased by FWC shall be established by GSI on a quarterly basis as described
in this Section 4.01. No later than the 15th day of the calendar month
preceding the end of each calendar quarter, GSI shall provide FWC with the
Price for HC Rods for the immediately following calendar quarter.
* Confidential portion has been omitted and filed separately with the
Commission. (Omitted portion includes one entire page.)
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5. SHIPPING AND DELIVERY TERMS
5.01 GSI shall use commercially reasonable efforts to ship HC
Rods to FWC substantially in accordance with the shipping instructions of FWC
contained in the accepted purchase order. The cost of such shipping shall be
borne by GSI and shall be included in the Price for such purchase order;
provided, however, that it is understood that the Price for HC Rods is based on
shipment by rail and the packaging requirements of FWC in place at the time of
this Agreement. If FWC specifies any other mode of shipment or any other
packing requirements other than the requirements in place on the date of this
Agreement, FWC agrees to reimburse GSI for any additional cost incurred by GSI.
Notwithstanding the preceding two sentences, it shall be the responsibility of
GSI to deliver to FWC's facility HC Rods which comply with GSI's warranties as
provided in Section 7.2 hereof. Should shipment by a reasonable transportation
mode other than rail be required due to the failure of GSI to meet the
reasonable delivery requirement of FWC unless such alternate method of
transportation is engaged, and provided that FWC has given commercially
reasonable notice of its delivery requirements to GSI, then GSI shall assume
the additional cost, if any, associated with such alternate mode of
transportation.
* Confidential portion has been omitted and filed separately with the
Commission.
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6. INVOICE AND PAYMENT TERMS
6.01 GSI will issue an invoice for HC Rods when shipped. All
invoices shall be due and paid by wire transfer to GSI's designated account in
immediately available funds not later than [*] days from the date of invoice.
Invoices not paid in full within [*] days after the date of invoice shall be
past due and shall be subject to the then current interest, charges and fees
applicable to past due accounts.
7. ACCEPTANCE OF GOODS/LIMITED WARRANTY
7.01 FWC shall inspect the HC Rods received from GSI and report
in writing any discrepancies in the quantity of HC Rod between the HC Rods
delivered and the terms of sale to GSI within forty-five (45) days after
delivery. If GSI does not receive a discrepancy report from FWC within
forty-five (45) days after delivery, the HC Rods will be deemed accepted and
all claims for discrepancies in the quantity of HC Rod which reasonably could
have been discovered by routine inspection during such period shall be deemed
irrevocably waived, released and remised.
7.02 GSI warrants that the HC Rods sold and delivered to FWC
hereunder shall conform to normal ASTM standards for high carbon rods and shall
either be usable in the production of PC Strand or usable in the production of
galvanized products. To the extent FWC's order of HC Rods indicates that the HC
Rod is to be used in the production of PC Strand, GSI shall warrant that such
HC Rod is usable in the production of PC Strand. Similarly, to the extent FWC's
order of HC Rods indicates that the HC Rod is to be used in the production of
galvanized products, GSI shall warrant that such HC Rod is usable in the
production of galvanized products. In the event that any
* Confidential portion has been omitted and filed separately with the
Commission.
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HC Rods do not conform to normal ASTM standards for high carbon rods, GSI will
make an equitable adjustment in the Price of all HC Rods delivered to FWC which
do not conform to this standard provided such non-conformity is reported in
writing to GSI within thirty (30) days after the date the non-conformity is
discovered or could reasonably be expected to have been discovered or, in the
alternative, with GSI's consent, not to be unreasonably withheld, to return
such non-conforming product to GSI for credit against amounts owed to GSI by
FWC. Similarly, in the event that any HC Rods are not usable in the production
of PC Strand or galvanized products, GSI will make an equitable adjustment in
the Price of all HC Rods delivered to FWC which are not so usable provided such
failure to be usable is reported in writing to GSI within thirty (30) days
after the date the failure to be usable is discovered or could reasonably be
expected to have been discovered, or, in the alternative, with GSI's consent,
not to be unreasonably withheld, to return such unusable product to GSI for
credit against amounts owed to GSI by FWC.
7.03 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 7.02
ABOVE, GSI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AND THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED.
7.04 In no event shall GSI be liable to FWC for any incidental,
consequential, indirect or special damages, even when GSI has been advised of
the possibility of the same.
8. DEVELOPMENT OF NEW PRODUCTS OR PROCESS IMPROVEMENTS/QUARTERLY
MEETINGS
8.01 FWC and GSI may from time to time agree to changes in the
specifications set forth on Exhibit 2 or enter into a development program for
process and
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product improvements or new product applications. These products may have
sizes, quality grades and other characteristics different from those then being
supplied under this Agreement. Prior to making or filling any orders based on
such new products or processes, the parties shall agree [*] during the
development period to cover the additional production, special equipment
utilization, testing and reporting responsibilities required to develop the new
process or product. The parties shall also agree on the Price for such new
products or products produced by such new processes, which will be [*]. All new
product and process information such as chemistry, diameter, processing data,
processing methods, and test results, shall be subject to Article 10 hereunder.
8.02 Representatives of FWC and GSI shall meet each quarter at
Jacksonville, Florida or Georgetown, South Carolina (on a rotating basis) or
other mutually agreeable location to discuss issues of material concern
relating to their operations and the administration of this Agreement.
9. RIGHT OF AUDIT
9.01 No more often than twice each Contract Year, GSI or its
representatives may, upon reasonable notice and during normal business hours,
using reasonable care not to disturb the ordinary business operations of FWC,
conduct an audit of FWC's actual Acquisitions during the current or immediately
preceding Contract Year. If FWC has not purchased at least [*] of such
Acquisitions from GSI during the remainder of 1999 or during the applicable
Contract Year, as the case may be, or if FWC shall not have purchased a minimum
of [*] Tons of HC Rods during the applicable Contract Year, as GSI's exclusive
remedy for such shortfall, FWC shall, within thirty
*Confidential portion has been omitted and filed separately with the Commission.
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(30) days after receipt of the auditor's report (subject to FWC's right to
contest such audit pursuant to Article 14 hereunder) pay to GSI a sum of money
equal to the product obtained by multiplying the difference between the Tons
which FWC was required to purchase from GSI hereunder and the Tons it actually
purchased from GSI by GSI's "Gross Profit Per Ton." For the purposes of this
Section 9.01, "Gross Profit Per Ton" shall be equal to (i) the net sales price
per Ton of HC Rod (the price per Ton of HC Rod net of freight, insurance and
sales commissions) sold and delivered to FWC during the last month of the
Contract Year minus (ii) the average production costs per Ton incurred in the
manufacture of all categories of wire rods as reflected in GSI's Georgetown,
South Carolina rod mill's cost of wire rod production schedule for the last
month of the Contract Year. Such calculation shall exclude any unusual and
non-recurring items of revenue or expense.
10. CONFIDENTIALITY
10.01 Each party acknowledges that, from time to time during
the term of this Agreement, the other may disclose to it information regarding
the composition and specifications for the HC Rods or its goods, performance
characteristics of the HC Rods or goods, customer preferences, market
information, product development information, costs, plans, budgets and other
valuable proprietary business information, whether similar or dissimilar, all
of which information disclosed by one party to the other pursuant to this
* Confidential portion has been omitted and filed separately with the
Commission. (Omitted portion includes one entire page.)
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Agreement being considered confidential, valuable and proprietary by the
disclosing party ("Confidential Information"). Each party agrees that it will
not use or disclose any Confidential Information of the other except as
expressly authorized by this Agreement, as required by applicable law or as may
be compelled by an authorized government agency or court. Each party shall
refrain from any action which might reasonably be foreseen to compromise the
confidentiality or proprietary nature of the Confidential Information of the
other party. Confidential Information shall not be deemed to include (i)
information known to a party prior to the execution of this Agreement; (ii)
information which is or becomes part of the public domain through no fault of
the non-owning party; and (iii) information which is disclosed to it during the
term of this Agreement by a third party which was not under any obligation of
confidentiality with respect to such information at the time of disclosure.
11. TERM AND TERMINATION
11.01 The initial term of this Agreement shall commence on the
Effective Date and, unless sooner terminated as provided herein, shall expire
on December 31, 2004. This Agreement shall automatically be renewed for an
additional term of three (3) years to December 31, 2007 unless GSI or FWC shall
have provided written notice to the other on or before December 31, 2003 that
this Agreement shall be terminated on December 31, 2004. Thereafter, provided
that this Agreement has not been sooner terminated, each party is then in
compliance with all the terms and conditions of this Agreement and neither
party has given notice as provided below to the other of non-renewal, then this
Agreement shall automatically renew for successive additional three (3) year
terms. Following the first renewal term, either party may provide notice of
non-renewal of this Agreement, in which case the Agreement shall terminate
effective as of the
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end of the current term, so long as such party delivers written notice of
non-renewal to the other party not later than 12 months, and not earlier than
15 months, before the end of the current term.
11.02 Either party may terminate this Agreement at any time for
Cause (as defined below) upon the giving of written notice of termination at
least ninety (90) days prior to the effective date of termination stated in the
notice; provided, however, that if the Cause is a material breach of this
Agreement and the party cures such breach within thirty (30) days after
receiving the notice or, if the nature of the breach is such that cure cannot
reasonably be achieved within such 30 days but the breaching party begins good
faith efforts to cure said breach within thirty (30) days and thereafter
continues to prosecute said cure to completion, then the Agreement shall not
terminate by reason of such breach and notice; provided further, however, any
purchases of HC Rods by FWC as a direct result of GSI failing to cure such
breach within the cure period described above shall not be included for
purposes of determining FWC's purchase requirements under Section 2.01 of this
Agreement.
11.03 Any of the following events shall constitute "Cause" for
the purposes of Section 12.02: (i) a material breach of this Agreement; (ii)
the party not giving the notice ceases to do business as a going concern,
adopts or implements a plan of liquidation or dissolution, becomes or is
adjudicated bankrupt or files or applies for bankruptcy, composition of similar
relief under the applicable bankruptcy laws of any federal or state law or
doctrine relating to protection from creditors generally.
11.04 Unless GSC has agreed in writing to assume all of GSI's
obligations under this Agreement, FWC may terminate this Agreement at any time
after substantially all of the assets or capital stock of GSC are sold to any
person or entity
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which is not controlled, directly or indirectly, by GSI or at any time after
any merger, consolidation or other reorganization the result of which is that
GSC is no longer controlled, directly or indirectly, by GSI.
11.05 In the event this Agreement expires or terminates for any
reason, the parties shall remain bound by the provisions of Articles 10 and 14,
which Articles shall survive expiration or termination.
12. FORCE MAJEURE
12.01 Any failure or delay in the performance by
either party of its obligation hereunder shall not be a material breach of this
Agreement if such failure or delay arises out of or results primarily from
fire, storm, flood, tornado, hurricane, earth quake or other acts of God,
explosion, or strikes, civil disorder or the act or decree of any competent or
judicial authority or any other cause beyond the reasonable anticipation and
control of party whose performance is thereby delayed or prevented (an event of
"force majeure"). A party's failure or delay in performance shall only be
excused (i) during the pendency of the event of force majeure, (ii) to the
extent its performance is adversely affected or delayed by the event of force
majeure, and (iii) for so long as such party is using diligent, commercially
reasonably efforts to avoid or mitigate the effect of such force majeure;
provided, however, any purchases of HC Rod by FWC during any force majeure
period described above which excuses GSI's failure or delay in the performance
of its obligation hereunder shall not be included for purpose of determining
FWC's purchase requirements under Section 2.01 of this Agreement.
13. GENERAL
13.01 Either party may assign, convey license or otherwise
dispose of, in whole or in part, its rights (and, subject to the next
to the last sentence of this Section
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13.01) its obligations under this Agreement to any entity directly or
indirectly controlled by it or under common control by an entity controlling
such party. (For the purposes of this Section 13.01, "control" shall mean the
power to appoint or replace a majority of the entity's board of directors or
equivalent managing board.) Except as allowed by the preceding two sentences,
neither party may assign, convey, license or otherwise dispose of, in whole or
in part, its rights or its obligations under this Agreement without the prior
written consent of the other party hereto, which consent shall not unreasonably
be withheld. Any assignment permitted hereunder shall not relieve the assigning
party of any of its obligations under this Agreement unless the other party
consents in writing to a release, except that any assignment by GSI to GSC in
connection with the sale of substantially all of the assets or capital stock of
GSC shall relieve GSI from its obligations under this Agreement as long as GSC
has agreed in writing as part of such assignment to assume all of GSI's
obligations under this Agreement. Any assignment by a party in violation of
this Agreement shall be null and void. Nothing in this Agreement and nothing
implied by this Agreement shall confer upon any person or entity, other than
the parties hereto, and their respective successors and permitted assigns, any
rights or remedies under or by reason of this Agreement.
13.02 All notices contemplated by this Agreement shall be
sufficient if in writing and if delivered personally or sent by registered or
certified mail, postage prepaid, addressed to the other party at the address
indicated below or to such other address as either party may hereinafter
designate in writing to the other:
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If to GSI:
GS Industries, Inc.
Xxxxx 000
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxx X. Xxxxx, President
If to FWC:
Florida Wire and Cable, Inc.
c/o Insteel Industries, Inc.
0000 Xxxxx Xxxxx
Xx. Xxxx, XX 00000
Attention: H. O. Xxxxx, III, President
13.03 The forbearance by any party to enforce compliance with
the terms of this Agreement for the other party's breach of this Agreement
shall not constitute a waiver by the forebearing party of such breach or remedy
which such party might have or assert; and the waiver by any party of any
breach of any provision of this Agreement by the other shall not constitute a
waiver of any other or subsequent breach.
13.04 The terms and conditions of this Agreement are hereby
deemed by the parties to be severable, and the invalidity or unenforceability
of any one or more of the provisions of this Agreement shall not affect the
validity and enforceability of any other provisions hereof, unless by virtue of
the invalidity or unenforceability of some of the provisions of this Agreement,
this Agreement shall fail of its essential purpose.
13.05 The headings of paragraphs and articles in this Agreement
are for reference and convenience only and shall not affect the construction of
this Agreement.
13.06 This Agreement or any dispute or controversy arising or
related out of or to it shall be governed and construed according to the laws
of the State of North Carolina as if both parties were resident in that state
and performed all of their obligations therein.
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This Agreement expresses the entire understanding and agreement of the parties
with respect to its subject matter; all prior agreements, statements and
understandings being merged herein. It may not be amended or modified
unilaterally, orally or by course of conduct, but may only be amended or
modified by a written document signed by both parties. In as much as this
Agreement was prepared as a result of negotiations and agreement by
sophisticated parties, it shall not be construed against one party as the party
preparing it.
14. DISPUTE RESOLUTION
14.01 Neither party may submit any dispute or controversy
arising hereunder (a "Dispute") to litigation or a demand for arbitration until
such Dispute has been reviewed and the parties have attempted to resolve it by
a meeting between the respective Presidents of each party responsible for the
business unit involved. If no such meeting is held or if no resolution of such
Dispute is achieved with thirty (30) days after written demand is first given
for such meeting, then either party may submit the dispute to arbitration
pursuant to the provisions below and the Rules of Commercial Arbitration of the
American Arbitration Association (the "Rules").
14.02 Each person named on all lists of potential arbitrators
submitted pursuant to the Rules shall be neutral and impartial and shall have
prior experience in business arbitration. The parties shall first endeavor to
agree on a single arbitrator to hear the Dispute, but if agreement cannot be
reached within thirty (30) days of the demand for arbitration, then the matter
shall be heard by a panel of three (3) arbitrators, selected in accordance with
this Agreement and the Rules. If resort is had for a panel of three (3)
arbitrators, then each party may appoint an arbitrator of its own choosing who
is not
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necessarily neutral or impartial, but who may not be an employee of or
consultant to such party.
14.03 Except as otherwise set forth herein or agreed by the
parties, either party may discover matters from the other party in accordance
with the procedures set forth in the Federal Rules of Civil Procedure (the
"Federal Rules") as herein modified. The parties do not wish to incur the
expense and inconvenience associated with the "wide-open" discovery normally
available under the Federal Rules. No party may seek discovery from third
parties except by agreement of the parties, or on motion granted by the
arbitrator(s) upon a showing of substantial likely prejudice if discovery is
not had. Discovery from any person or entity shall be had only for matters of
demonstrated relevance or demonstrated substantial likelihood to lead to
discovery of relevant evidence. The discovery period shall end four (4) months
after the filing of the demand for arbitration; all depositions shall be
completed and all requests for other discovery shall be served prior to that
time. The arbitrator(s) may enter orders compelling discovery pursuant to the
Federal Rules.
14.04 The arbitration hearing shall be conducted continuously
(except for reasonable recesses for meals and other brief recesses) during
normal business hours until completed.
14.05 Either party may invoke the aid of a court of competent
jurisdiction and proper venue as necessary in support of the arbitration
provided herein.
14.06 The award of the arbitrator(s) (the "Award") shall be
consistent with this Agreement and shall be given in writing within ten (10)
business days after the close of the arbitration hearing. The Award shall
contain findings of fact and conclusions of law. In the case of a
multi-arbitrator arbitration, each arbitrator shall sign the Award,
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indicating whether he or she voted in favor of the Award. Either party may move
for reconsideration by the arbitrator(s) by filing and serving a motion to that
effect within five (5) business days after the delivery of the Award. A party
who has lost a motion for reconsideration may file an appeal in any court of
competent jurisdiction and proper venue, which may modify or set aside such
Award only as provided below. Except as provided herein and by applicable
statute, no other appeal shall be permitted. The trial by the court shall be
without a jury, and each party waives its right to trial by jury. In the event
of such appeal, the other party may counterclaim for enforcement of the Award.
The parties agree that the finding of fact and conclusions of law set forth in
the Award shall be filed with the court as the report of a special master, in
the manner and with the effect prescribed by Rule 53(e) of the Federal Rules.
The findings of fact shall not be final but shall be subject to review under
the clearly-erroneous standard prescribed by Rule 53(e)(2) and (4) of the
Federal Rules. The parties agree that the record of the arbitration hearing
shall automatically become the agreed record in the action, subject to
re-opening only in accordance with the principles governing new trials to the
court under the Federal Rules. The running of any statute of limitations
applicable to a claim or counterclaim made in the arbitration proceeding shall
be tolled during the arbitration proceeding to the extent the claim or
counterclaim was not barred by the applicable statute of limitations when made.
14.07 If an Award is appealable under this Article, and an
appeal is not timely made in accordance with the procedures of this Article,
then the Award shall automatically become final, binding as between the parties
and non-appealable for any reason. The judgment of any court with respect to
the appeal of an Award shall be final
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and non-appealable. The Award may be confirmed or enforced by either party in
any court of competent jurisdiction by the filing of an appropriate action.
14.08 A party who successfully brings a judicial action to
compel arbitration or to enforce an Award hereunder shall be entitled to
recover its reasonable attorneys fees and expenses from the other party. In all
other cases, the parties shall bear their own costs and expenses, unless
otherwise determined by the arbitrator(s).
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IN WITNESS WHEREOF, the parties have executed this Agreement by the
signatures of their respective duly-authorized representatives as of the date
first above written.
GS INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxx
--------------------------------
Print Name: Xxxx X. Xxxx
Title: EVP & CFO
FLORIDA WIRE AND CABLE, INC.
By: /s/ Xxxx X. Xxxxx
--------------------------------
Print Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
-----------------------------
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EXHIBIT 1
COMPETITORS OF FWC
[*]
* Confidential portion has been omitted and filed separately with the
Commission. (Omitted portion includes one entire page.)
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EXHIBIT 2
INITIAL DELIVERED PRICES
FWC GSI DELIVERED PRICES
HC RODS SIZES GRADE GRADE ON EFFECTIVE DATE
------- ----- ----- ----- (PER 100 WEIGHT)
----------------
[*] [*] [*] [*] [*]
*Confidential portion has been omitted and filed separately with the
Commission. (Omitted portion includes one entire page).
