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Exhibit 10.1
CONFIDENTIAL TREATMENT REQUESTED
Confidential material has been separately filed with the U.S. Securities and
Exchange Commission under an application for confidential treatment. Terms for
which confidential treatment has been requested have been omitted and marked
with an asterisk [*].
CAN SUPPLY AGREEMENT
This Agreement is made as of the 1st day of January, 1999 between
AMERICAN NATIONAL CAN COMPANY, a Delaware corporation, with its principal
offices at 0000 X. Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("ANC"), and
COCA-COLA ENTERPRISES, INC. and its U.S. subsidiaries, with their principal
offices at X.X. Xxx 000000, Xxxxxxx, XX 00000-0000 (collectively referred to as
"Buyer"), and covers the manufacture and supply by ANC to Buyer and the purchase
by Buyer from ANC of two-piece aluminum beverage can bodies and ends (herein
collectively referred to as "cans" or "containers") of the specifications and
quantities referred to hereinbelow.
WHEREAS, the parties entered into a Can Supply Agreement (the "1995
Agreement") dated November 20, 1995 with an initial term of 5 years expiring on
December 31, 2000; and
WHEREAS, the parties are desirous of entering into a new long-term
supply agreement covering certain of Buyer's requirements of Containers, which
will supersede the 1995 Agreement; and
WHEREAS, in order to accomplish the goal of predictability of pricing,
the parties are willing to commit themselves, for at least the first two years
of the term of this Agreement, to purchase and sell, as the case may be, the
quantity of containers stated herein utilizing aluminum covered by an "Ingot
Band" (i.e., having pre-agreed floor and ceiling costs), subject to the terms
set forth herein, and the parties recognize that each of them has the ability to
protect itself against the fluctuation in the cost of aluminum above or below
the Ingot Band by purchasing the appropriate downside protection, which is
available in the marketplace.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Description of Products. This Agreement relates to containers of
the specifications set forth on Exhibit A attached hereto, required by Buyer at
its can filling location(s) set forth on Exhibit B (and at any additional or
substitute facilities hereafter acquired or otherwise designated by Buyer where
Buyer may fill cans).
2. Term. The initial term of this Agreement shall be ten (10) years
commencing as of January 1, 1999 and terminating December 31, 2008.
3. Volume.
(a) Except as otherwise provided herein, during the calendar years
1999, 2000 and 2001, Buyer agrees to buy and ANC agrees to sell the Base Annual
Volumes of can bodies and ends shown in the chart below (adjusted as set forth
below to reflect volumes divested or acquired through certain divestitures or
acquisitions). In each calendar year after 2001, Buyer agrees to buy and ANC
agrees to sell an amount equal to the "Base Annual Volume" for the previous
calendar year (adjusted as set forth below to reflect volumes acquired or
divested by Buyer as a result of certain acquisitions or divestitures) [*]
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Can bodies and ends will be purchased and supplied by the parties in
substantially equal volumes.
[*]
*The term "Cumulative Base Annual Volume" shall mean the sum of the Base
Annual Volumes for the preceding contract years. The amounts in the Base Annual
Volume and Cumulative Base Annual Volume columns above for the years 2002
through 2008 inclusive are correct only if there are no adjustments to the Base
Annual Volume amounts by virtue of an acquisition or divestiture as described
below. In the event of Buyer's divestiture of any U.S. bottling facility then
being supplied by ANC, the portion of the divested facility's volume proposed to
be supplied by ANC for the portion of the year after the sale shall decrease the
Base Annual Volume requirement. In the event of Buyer's acquisition of a U.S.
bottling location then being supplied by ANC, the portion of the acquiree's can
requirements previously supplied by ANC, shall increase and count toward the
Base Annual Volume requirement. Any portion of the acquiree's volume in excess
of what was previously supplied by ANC shall not increase the Base Annual Volume
number, but shall count toward meeting the Base Annual Volume requirement. If an
acquiree is under contract to another can supplier at the time of the
acquisition, such contracted volume shall not increase the "Base Annual
Volume" number, but shall count toward meeting the "Base Annual Volume"
requirement when such competitive contract terminates to the extent of the
volume awarded to ANC
(b) If, at the end of any year after 2001, Buyer has failed to purchase the
Cumulative Base Annual Volume, calculated in Section 3(a) above, Buyer's price
shall be increased in the next following year to reflect such shortfall. The
price increase set forth in this paragraph shall be ANC's exclusive remedy for
Buyer's failure to buy the Base Annual Volume or the Cumulative Base Annual
Volume. [*] Every year that there is a volume shortfall, the price increase
shall be recomputed using the same formula. The following is an example of the
implementation of price increase due to a volume shortfall.
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[*]
In the above example, if at least [*] cans and ends are purchased by 12/31/03,
the price increase would be removed for 2004. If at 12/31/03, a shortfall still
exists, a new price increase would be calculated for 2004 using the formula set
forth above.
If, at the end of the term of this Contract, a Cumulative Base Annual Volume
shortfall exists, this Contract shall continue until such shortfall has been
purchased by Buyer with the price being increased by the shortfall adjustment
in effect at the end of the term.
It is understood and agreed that if the application of the above described
volume shortfall adjustment causes ANC's price to Buyer to be uncompetitive on
a net price basis with prices available from another U.S. can supplier, ANC
agrees to meet with Buyer to discuss alternatives.
If, in any year, ANC is unable to supply volume offered to it by Buyer as part
of the Base Annual Volume, any shortfall in the Cumulative Base Volume for that
year will not be subject to the above penalty to the extent of the volume that
ANC is unable to supply.
(c) Buyer shall not be in default of its obligations under Section
3(a) above if Buyer is prevented from purchasing the required volume by
conditions in the U.S. beverage market which are beyond Buyer's control (such
as reduced consumer demand, or other similar market related conditions) so long
as Buyer is continuing to purchase from ANC a minimum of the greater of (i) [*]
of its total requirement of cans, or (ii) [*] cans annually in 1999 through
2004, and [*] cans annually for the balance of the contract term. In the event
of the occurrence of a condition covered by this paragraph, paragraph 3(c) shall
remain applicable.
(d) If, for any reason (other than an event covered by section 9), ANC
is unable to supply cans and/or ends, as the case may be, of satisfactory
quality, Buyer will be relieved of its obligation to buy from ANC the
unsatisfactory item (but only from the can manufacturing plant or plants where
such quality problem exists) under the terms of this Contract until ANC corrects
the problem on an ongoing basis to the reasonable satisfaction of Buyer. In such
event, (a) ANC will, if possible, provide Buyer with cans and/or ends from an
alternate ANC plant and ANC shall absorb any excess freight involved in shipping
from the alternate ANC plant, (b) if ANC is unable to procure cans and/or ends
from an ANC plant, Buyer may procure such cans for the duration of time that
such quality problem exists, and (c) cans and/or ends purchased by Buyer from
any alternate source pursuant to this paragraph shall be credited against
Buyer's purchase obligation hereunder.
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4. Pricing.
(a) Subject to Section 4(d) below, prices under this Agreement shall
be established and adjusted in accordance with the terms, conditions and
limitations set forth on Exhibit C attached hereto. In addition to the price
adjustment mechanisms set forth on Exhibit C, any changes in the specifications
of containers supplied hereunder may result in an upward or downward price
adjustment.
(b) [*] should another qualified can supplier extend to Buyer a bona
fide offer for the sale of at least [*] containers for a term of at least [*] at
a delivered cost to Buyer [*] lower than ANC's price hereunder for similar
specifications, and with comparable terms and conditions of sale, then, in such
event, Buyer will notify ANC in writing of the availability and duration of the
offer, the items to which it relates, the date when shipments could begin, the
lower delivered cost [*] and provisions for adjustment thereof, such information
to be certified by an authorized officer of Buyer or by an independent auditor
selected by Buyer, if so requested by ANC. ANC shall then have thirty (30) days
from receipt of such notice to notify Buyer whether it will meet such
competitive offer. In the event that ANC chooses not to meet such offer, then
Buyer shall be relieved of the obligation to purchase the amount of cans covered
by the offer for the period of time covered by the offer. In determining whether
a particular competitive offer is lower than ANC's then current price [*], there
shall be taken into account (i) all of the benefits that Buyer derives from
purchasing cans from ANC hereunder including, without limitation, payment terms,
discounts, rebates, and allowances (including advance incentive allowances) and
technical service and support, and (ii) the effect of any costs to be borne by
Buyer in purchasing from the competitor in addition to those costs and expenses
borne by Buyer in purchasing from ANC hereunder including (without limitation)
any additional financing costs and capital investments (including the cost of
money) required of the Buyer to secure the benefits of the competitive offer, as
well as any additional expense of freight, warehousing, material change in
production procedures, and payment and credit terms.
(c) Buyer and ANC recognize and agree that fluctuations in the price
of aluminum may drive the spot price of aluminum above the ceiling price or
below the floor price of the Ingot Band, while such Band is in effect, as such
ceiling and floor prices may be adjusted from time to time in accordance with
Exhibit C. However, so long as such Ingot Band is in effect for purchases
hereunder, Buyer and ANC agree to purchase and sell the quantities agreed to
hereunder with aluminum ingot costs no higher than such ceiling prices nor lower
than such floor prices notwithstanding any such fluctuations. The parties
recognize that protection against any such market fluctuation is available to be
purchased in the marketplace.
(d) (i) Until December 31, 2000 (or December 31, 2001 if ANC's
aluminum band purchase commitment is extended), ANC agrees to purchase metal to
fulfill Buyer's can requirements hereunder from a primary aluminum supplier or
suppliers designated by Buyer and approved by ANC. After 2000 or 2001, as the
case may be, Buyer shall have the option, subject to subparagraph 4(d)(ii),
acting alone or in cooperation with ANC, to arrange for the supply of metal
sheet to ANC to be converted into bodies and or ends for Buyer. ANC agrees to
perform such conversion. Any such can bodies and ends shall count toward the
Base Annual Volume
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obligation of Buyer hereunder. Subject to subparagraph 4(d)(ii), Buyer shall
provide ANC with reasonable advance notice (which shall be not less than 120
days) of its intent to procure metal sheet, and such metal sheet shall be from
a qualified first tier metal sheet producer (such as Alcan or Alcoa) reasonably
acceptable to ANC or second tier supplier reasonably acceptable to ANC. Once
ANC has accepted a metal supplier, ANC may only reject such supplier for a
reasonable cause such as a qualification, quality, delivery or service problem
or unacceptable payment terms. If Buyer opts to procure metal sheet, ANC shall
obtain approval from Buyer before making any commitment for the supply of metal
sheet to meet Buyer's orders hereunder.
(ii) All parties recognize that the details of any metal program,
whether it be a hard toll or soft toll including, but not limited to, metal
sheet involving, scrap handling and pricing, the method of applying the meeting
competition [*] provisions to the conversion component and overall can price,
warranties, quality and delivery problem handling, metal gauge issues,
associated capital expenditure requirements (if any), and qualification, must be
discussed and agreed upon by Buyer and ANC before being implemented. Under such
a metal program, ANC agrees, subject to section 9 hereof, to inspect and, if
acceptable, use can sheet within 90 days of its receipt by ANC. A metal
purchasing program is a fundamental requirement of Buyer and ANC.
[*]
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5. Payment Terms. Payment terms shall be: net 10 days. Interest shall
be assessed on all past-due amounts at the annual rate of two (2%) percent above
the prime rate of interest at the First National Bank of Chicago, Chicago,
Illinois.
6. Delivery. Buyer shall advise ANC, prior to November 30, of its
annual requirements of containers under this Agreement for the upcoming calendar
year (the "Forecasted Volume") and shall update such forecast on a monthly basis
throughout the year. The Forecasted Volume shall contain a breakdown of
forecasted volumes for each of Buyer's filling locations, which forecasts shall
remain in effect until adjusted by Buyer upon reasonable advance notice to ANC;
provided, however, that such adjustments shall not affect Buyer's purchase
commitment set forth in Paragraph 3(a) above.
7. Effect of Termination. Upon termination of this Agreement for any
reason, Buyer shall accept all completed, fabricated or lithographed containers
and related items previously ordered, acquired or committed for by ANC in
reasonable quantities in anticipation of Buyer's normal can requirements.
8. Warranties, Claims and Limitation of Liability.
(a) ANC hereby warrants to Buyer that the containers to be
manufactured and sold to Buyer hereunder shall be free from defects in
workmanship and materials, shall be merchantable and fit for its intended use as
beverage containers, and shall conform to the specifications set forth in
Exhibit A attached hereto. EXCEPT AS EXPRESSLY STATED ABOVE, THERE ARE NO OTHER
WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE
IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
(b) ANC shall not be liable to Buyer or to any other person where the
claimed damages result from: (i) Buyer's faulty assembly or closure of the can
body and loose end; (ii) rust or outside corrosion on containers occurring after
Buyer's receipt, except when caused by ANC's faulty workmanship or imperfect
materials; (iii) the failure of Buyer (or any other party excluding ANC from
time to time having custody or control of allegedly defective goods) to exercise
reasonable care in conveying, warehousing, using, packing, handling,
distributing or storing filled or unfilled containers; or (iv) the failure of
empty or filled containers exported to or used in foreign countries unless a
special warranty has been specifically approved by ANC to cover such exported
containers; (v) defects in metal or failure of Buyer's supplier to deliver metal
to ANC where Buyer is the supplying such metal to ANC.
(c) ANC shall give immediate consideration to settlement of Buyer's
claims, but in no event shall ANC be liable on any claim unless notice thereof
is received by ANC promptly following Buyer's discovery of an alleged defect in
a container.
(d) In the event of ANC's breach of warranty, ANC shall be liable for,
and ANC's liability to Buyer hereunder shall be limited to, Buyer's cost of the
defective containers, cost of the contents of the containers lost as a direct
result of the defect, and the reasonable cost of
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recovery and disposition of defective containers (but as to the latter, only to
the extent reasonably required). ANC shall in no event be liable to Buyer for
indirect or consequential damages such as lost profits or lost business.
However, ANC shall be responsible for claims by third parties (including
governmental entities) to the extent arising out of a container defect provided
that ANC is given adequate notice of such claim and the opportunity to defend
such claim by counsel of its own choosing.
9. Force Majeure. Except for the payment of money due hereunder, ANC
and Buyer shall be excused for failure to perform under this Agreement where
such failure results from circumstances beyond the affected party's reasonable
control including, without limitation, such circumstances as fire, storm, flood,
earthquake, strikes, work stoppages or slowdowns, delay or failure of
transportation or suppliers, acts of God or acts, regulations, priorities or
actions of the United States, a state or any local government or agents or
instrumentalities thereof.
10. Notices. All notices, requests or other communications shall be in
writing, and shall be deemed given when delivered personally or deposited in the
United States mail, postage prepaid, or to a courier service and properly
addressed to Buyer at: X.X. Xxx 000000, Xxxxxxx, XX 00000-0000, Attention: Vice
President and Chief Procurement Officer; and General Counsel, and to ANC at:
0000 X. Xxxx Xxxx Xxx., Xxxxxxx, XX 00000, Attention: Senior Vice President,
Sales, or to such other address as either party may, from time to time,
designate to the other in writing.
11. Assignability. This Agreement shall be binding upon and inure to
the benefit of the successors and assigns of the parties hereto including,
without limitation, a subsidiary, affiliate, purchaser, transferee or successor
by merger of substantially all of the business or assets of either Buyer or ANC;
provided, however, that this Agreement may not be assigned or transferred
(except for a transfer to an affiliate of either party hereto including a
transfer to an affiliate that is part of an Initial Public Offering of all or
part of ANC's beverage cans business) by a party without the consent of the
other party, which consent shall not be unreasonably withheld. An "affiliate" of
a party shall be defined as a party that directly or indirectly, through one or
more intermediaries, controls or is controlled by, or is under common control
with, either Buyer or ANC. Buyer hereby agrees to require the purchaser or
transferee of all or any portion of its can filling operations, whether or not
that purchaser or transferee is an affiliate, to either (i) assume that portion
of this requirements contract that relates to the operations being sold or
transferred or (ii) enter into a new purchase agreement with ANC with pricing
and terms and conditions (including pro rata volume commitments) substantially
similar to those set forth herein.
12. Confidentiality. Each of the parties agrees not to disclose any
term or provision of this Contract (and ANC agrees not to disclose the fact of
ANC's contracting to supply Buyer) to any other party except, under appropriate
confidentiality agreements, to an approved assignee under section 11 above and
to its tax, legal and financial advisors, and except as may be required by law
and then only after using its commercially reasonable best efforts to consult
with the other party as to the necessity and extent of the disclosure required
sufficiently in advance of making same to provide the other party the chance to
seek a protective order; provided, however, that the final determination of any
such legally required disclosure shall rest solely with the party required to
make the disclosure. This confidentiality agreement shall not apply to
information already in the public domain or already lawfully acquired by the
disclosee from sources other than the disclosing party.
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13. Equal Employment Opportunity. Unless this Agreement is exempt,
there is incorporated herein by reference the provisions of Section 202, the
equal opportunity clause of Executive Order 11246, as amended, Section 60-741.5,
the affirmative action clause of the regulations under the Rehabilitation Act of
1973, and Section 60-250.5, the affirmative action clause of the regulations
under 38 USC 4212, the Vietnam Era Veterans Readjustment Assistance Act of 1974.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
AMERICAN NATIONAL CAN COMPANY COCA-COLA ENTERPRISES INC.
AND ITS U.S. SUBSIDIARIES
By: /s/ Xxxxx X. Xxxxxx By: /s/ [ILLEGIBLE]
------------------------------- -------------------------------------
Title: Senior Vice President, Sales Title: Executive Vice President and Chief
Beverage Cans Americas Administrative Officer
Date: 9/10/99 Date: 9/13/99
---------------------------- ----------------------------------
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EXHIBIT A
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12 Ounce Aluminum Can Body
-4 prints on metal
202 Diameter Aluminum Stay-On-Tabs Ends
Cans must meet or exceed specifications, performance and quality criteria as
mandated by The Coca-Cola Company as they may change from time to time.
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EXHIBIT B
Buyer's Filling Locations
CCE U.S. Can Filling Locations As of August, 1999
# City State
- ---- -----
1 ABILENE TX
2 AUSTIN TX
3 BALTIMORE MD
4 BELLEVUE WA
5 BISMARCK ND
6 CINCINNATI OH
7 CLEVELAND TN
0 XXXXXXX XXXX XX
0 XXXXXX XX
10 DENVER CO
00 XXXXXXX XX
00 XXXXXX XX
00 XXXXX XX
00 XXXX XXXXXXXX XX
00 XX XXXX XX
00 XXXXXXXX XX
00 XXXXX XX
00 XX XXXXX XX
19 GRAND RAPIDS MI
00 XXXXX XXXXX XX
00 XXXXXXX XX
00 XXXXXXXXX XX
00 XXXXXXXX XX
24 HOUSTON TX
25 XXXXXXXXXXXX XX
00 XXXXXX XX
00 XXXXXX XXXX XX
00 XXXXXXXX XXXXXXX XX
29 MASPETH NY
30 MATTOON IL
31 MCALLEN TX
32 MONTGOMERY AL
00 XXXXXXX XX
00 XXXXXXX XX
35 PHOENIX AZ
36 SAN ANTONIO TX
37 SAN DIEGO CA
38 SAN LEANDRO CA
00 XXXXXXXX XX
00 XXXXXXXXX XX
00 X XXXXXXX XX
00 XXXXXXX XX
43 WILSONVILLE OR
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EXHIBIT C
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Pricing:
--------
I. The sum of the following three factors (or components) determine can
and end pricing under the Can Supply Agreement:
1. London Metal Exchange/Mid-West Premium (LME/MWP) ingot price
2. Cost of conversion of ingot to aluminum sheet for body, end
and tab stock
3. Cost of conversion of can sheet to aluminum beverage cans and ends
II. Initial Price
-------------
Initial price under this Agreement shall be:
Body End Total Delivered Price
---- --- ---------------------
12 oz Body 202 End [*] [*] [*]
Add [*] for basecoat.
III. Price Adjustments
-----------------
(a) Ingot - Ingot component/price will be limited by an initial
LME/MWP ceiling of [*] and a floor of [*]. This is the initial ingot
band. These ceiling and floor prices will be adjusted on each April 1st
(beginning on April 1, 1999) in the amount of [*] of any year over year
movement of the Intermediate Materials PPI for the period ending
December 31st of the preceding year. The initial ingot component price
(upon which the above can price is based) is [*]; this price, subject
to the ceiling and floor, will be adjusted in accordance with the
adjustment formula set forth below through December 31, 2000 (or 2001
if ANC's aluminum purchase commitment is extended) and, thereafter, in
accordance with the same or another formula to be hereafter agreed to
by ANC and Buyer:
will be based on
Prices during this period.... average midwest ingot price*... during this
period.
October 1, 1998 - March 31, 1999 March 1, 1998 - August 31, 1998
April 1, 1999 - September 30, 1999 September 1, 1998 - February 28, 1999
October 1, 1999 - March 31, 2000 March 1, 1999 - August 31, 1999
April 1, 2000 - September 30, 2000 September 1, 1999 - February 29, 2000
October 1, 2000 - March 31, 2001 March 1, 2000 - August 31, 2000
April 1, 2001 - September 30, 2001 September 1, 2000 - February 28, 2001
October 1, 2001 - December 31, 2001 March 1, 2001 - August 31, 2001
*The average referred to is the average of the daily Xxxxx'x Metals Week
transaction prices (i.e., the straight arithmetic average of the official
London Metal Exchange cash settlement prices plus the Midwest Premium on such
prices) during each 6 month period shown in the above right hand column.
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(b) Conversion of Ingot to Can Sheet - Effective April 1st of each
year (beginning on April 1, 1999) during the term of the Can
Supply Agreement, the ingot to can sheet conversion component will
be adjusted by [*] of any year over year movement of the
intermediate Materials PPI for the period ending December 31st of
the preceding year through December 31, 2000 (or 2001 if ANC's
aluminum purchase commitment is extended) and, thereafter, in
accordance with the same or another formula to be hereafter agreed
to by ANC and Buyer. The initial conversion component is [*] for
.0108 body stock, [*] for .0085 lid stock and [*] for .0100 tab
stock.
(c) Conversion of Can Sheet to Cans - Effective as of January 1, 2000
and January 1, 2001, the price shall be adjusted by the amount
obtained by multiplying ANC's base cost for conversion of can
sheet to cans and ends (currently [*] by [*] of the year over year
changes in the Intermediate Materials PPI (PPI). (ANC's conversion
cost component shall be adjusted by [*] of such PPI changes.)
Effective as of January 1, 2002 and on each January 1 thereafter,
the price will be adjusted in the following manner:
i. (a) In each year that year over year changes in the
Intermediate Materials PPI (PPI) do not exceed [*] such
percentage change will be reduced pro rata by [*] for
each [*] as calculated in accordance with Schedule D, but
in no event shall such reduction exceed the year over
year PPI change.
(b) In each year that the year over year change in the PPI is
greater than [*] but less than [*] such percentage will
be reduced pro rata by [*] for each [*] but in no event
shall such reduction exceed the year over year PPI
change.
ii. [*] of any remaining year over year percent change in the
PPI will be multiplied by ANC's base cost for conversion
of can sheet to cans and ends and the result will be
added to or subtracted from the price.
iii. If year over year changes in the PPI exceed [*], the
parties shall meet to discuss possible alternative
formulas for computing the price adjustment.
An example of a price adjustment on or after January 1, 2002 is
set forth on Schedule D attached.
IV. Other Incentives and Adjustments
(a) The price in effect on January 1, 2001 will be reduced by [*] and will
be further reduced by [*] on January 1st of 2002, 2003, 2004, and 2005
and [*] on each January 1st thereafter for the remaining term of the
Can Supply Agreement provided that Buyer has fully complied with its
obligations under such Agreement. The foregoing [*] reductions
represent ANC's anticipated cost savings and include [*] which
represents the anticipated reduction (other than gauge reduction) in
the amount of metal used to make cans. So
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long as ANC remains the purchaser of metal hereunder, any saving in excess of
[*] per year resulting from a reduction in the amount of metal used to make cans
will be shared equally by ANC and Buyer after ANC has recovered the cost of any
expenditures made by it in connection with the implementation of such metal
reductions.
(b) [*]
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Schedule D
[*]
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