Exhibit 10.13
[TRANSLATION]
================================================================================
AGREEMENT TO PURCHASE RAW MATERIALS
================================================================================
BETWEEN
SOPLARIL S.A., a joint stock corporation with a share capital of
(Euro)7,500,000, whose head office is situated at 0, xxx xx x'Xxxxx - 00000
Xxxxx-Xxxxxxxxx - XXXXXX, registered in the Corporate and Commercial Register
under the number RCS NANTERRE B 542 015 904,
herein represented by Xx. Xxxx-Xxxxxx XXXXXX, in his capacity as Chairman of the
Board of Directors
hereinafter collectively referred to as "SOPLARIL"
PECHINEY EMBALLAGE FLEXIBLE EUROPE, a joint stock corporation with a share
capital of (Euro)49,782,300, whose head office is situated at 0, xxx xx x'Xxxxx,
00000 Xxxxx-Xxxxxxxxx - XXXXXX, registered in the Corporate and Commercial
Register under the number RCS NANTERRE B 389 703 844,
herein represented by Xx. Xxxx-Xxxxxx XXXXXX, in his capacity as Chairman of the
Board of Directors
hereinafter referred to as "PEFE"
and hereinafter collectively referred to as "PSFE"
Party of the First Part
AND
PECHINEY RHENALU, a French corporation with a share capital of
(Euro)123,547,875, whose head office is situated at 0 xxxxx xx Xxxxxxxxxx
Xxxxxxxx, 00000 Xxxxx, Xxxxxx, represented by Xx. Xxxxxx Xxxxx, in his capacity
as Director, Commercial and Marketing Operations
PECHINEY EUROFOIL LUXEMBOURG, a joint stock corporation with a share capital of
(Euro)41,000,000, whose head office is situated in the Riedgen Industrial Xxxx,
X.X. Xxx 00, 0000 Xxxxxxxxx - Xxxxxxxxxx, registered in the Corporate and
Commercial Register under the number B 19358 and herein represented by Xx.
Xxxxxx Xxxxx, in his capacity as Director, Commercial and Marketing Operations;
PECHINEY EUROFOIL BELGIQUE S.A., a Belgian corporation with a share capital of
(Euro)20,000,000, whose head office is situated at Xxx Xxxxxx 00, X-0000
Xxxxxxxx, Xxxxxxx, herein represented by Xx. Xxxxxx Xxxxx, in his capacity as
Director, Commercial and Marketing Operations
hereinafter collectively referred to as the "Supplier"
Party of the Second Part
Hereinafter collectively referred to as the "Parties" or, individually, as a
"Party".
[TRANSLATION]
SECTION 1 - PURPOSE OF THE AGREEMENT
The purpose of this agreement is to define the terms and conditions pursuant to
which PSFE shall purchase from the Supplier, who agrees to sell to PSFE, the
products specified in Schedule 1 (hereinafter referred to as the "Products").
SECTION 2 - ACKNOWLEDGMENT OF RECEIPT
The Order shall be deemed final when PSFE receives a dated and signed
acknowledgment from the Supplier without additions or deletions.
SECTION 3 - PRODUCT CONFORMITY
The Supplier shall deliver Products that conform to the technical specifications
agreed between the Parities in quantities that correspond to the purchase order.
3.1 QUALITY
The Purchase of the Products shall be conditional upon the Supplier
maintaining a technical quality and service that satisfies PSFE's needs.
The Supplier agrees to comply fully with the technical specification(s) of
the Products to which the order pertains in accordance with the book of
specifications signed between the PSFE and Pechiney Rhenalu - Pechiney
Eurofoil sites.
If a deficiency of any kind in the supply (e.g., conformity with the
technical specifications, performance of the product, quality of the
packaging, etc.) could influence the quality of the product manufactured by
PSFE and more generally the quality of the products and/or services that
PSFE offers its customers, PSFE may request the Supplier to provide PSFE
with evidence that it exercises adequate control over the quality of the
supply, from the purchase of raw materials to delivery.
In the event of disagreements as to the quality, an expert report may be
sought from a laboratory approved by the Parties, the results of which
report shall be considered definitive. The cost of the report shall be
borne by the Party in the wrong.
If the Supplier proves not to have complied with the contractual
specifications, the Supplier agrees to take back the merchandise at its own
risk and expense within fifteen business days of the discovery of the
non-conformance, and shall not claim any compensation or indemnity from
PSFE.
If the Supplier's Products prove to have a latent defect, the Supplier
shall assume the costs incurred as a result of such latent defect in
accordance with Articles 1641 to 1648 of the Civil Code.
Such incurred costs may include, for example, materials and machine time
lost as a result of a defect in the Supplier's Product.
[TRANSLATION]
3.2 QUANTITY
Within a maximum of 72 hours following the date and time of delivery, PSFE
shall ensure that the quantity of Products delivered corresponds to the
purchase order.
SECTION 4 - SHIPPING AND PACKING
Deliveries shall be made to the address indicated on the order. The Products
shall bear a label with the order reference (in particular the number). Waybills
shall bear the same references. A notice of shipment shall be prepared in
duplicate for each shipment indicating:
- The order reference numbers,
- The mode of shipment,
- The destination warehouse,
- The description of the merchandise shipped and its weight.
The first copy shall be mailed to the address indicated on the order, the second
copy shall accompany the merchandise. The packing materials used for the
merchandise shall provide effective and adequate protection to fully preserve
the quality of the said merchandise until it reaches the delivery destination.
The specific terms of the order shall specify the terms applicable to retail
shipments. The packaging, which shall always be provided at the Supplier's
expense, shall be adapted to the supplies, the mode of transportation and the
delivery destination. The Supplier shall be liable for deterioration or loss due
to the inadequacy or deficiency of the packing. The Products shall be shipped at
the Supplier's risk and expense; PSFE agrees to indicate any reservations on the
CMR consignment note and to notify them to the carrier by letter requiring an
acknowledgment of receipt within 48 hours, upon receipt of the merchandise.
SECTION 5 - LEAD TIMES
During the whole term of this agreement, the Supplier warrants that it will be
able to accept orders placed on an as-is basis with a lead time of between 6 and
8 weeks.
For orders placed with a shorter lead time than hereinabove mentioned, the
Supplier shall indicate within two business days whether or not it accepts or
refuses the order on an as-is basis. Failure to respond shall be deemed to
constitute acceptance of the order and the lead time requested shall become the
contractual lead time for the order.
In an emergency and provided blanks are available and the order does not
represent more than ***% of the number of orders, the Supplier agrees on a lead
time of 6 weeks.
The Supplier agrees to a lead time of 6 weeks for the replacement of a
non-conforming product.
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
[TRANSLATION]
SECTION 6 - WARRANTY WITH RESPECT TO LEAD TIMES
The delivery shall take place at the agreed date with a maximum variance of four
(4) days in advance of the agreed date. In the event of delivery outside this
period, PSFE reserves the right to refuse the delivery.
SECTION 7 - RECEPTION
The reception of the Products shall take place on the premises of PSFE,
notwithstanding any prior provisional reception.
SECTION 8 - PRIOR NOTICE OF ORDER CANCELLATION
PSFE shall be entitled to cancel orders placed provided it does so at least 5
weeks before the delivery date. Naturally, PSFE should only avail itself of this
possibility in exceptional circumstances. A request for cancellation on shorter
notice shall be accepted at the discretion of the Supplier.
SECTION 9 - CONSIGNMENT INVENTORY
The Supplier shall establish a consignment inventory on the premises designated
by PSFE. Products in consignment inventory shall be delivered upon the issuance
of orders by PSFE, referenced and in quantities agreed by both Parties.
Consumption shall be invoiced by the Supplier using a statement of withdrawals
from inventory submitted by PSFE between the 25th and the 26th of the month of
consumption. The payment date shall be 30 days month-end (25th) (internal
offset) from the consumption date.
The material shall be considered consumed no later than 2 months following
delivery.
The consignment inventory shall represent not more than 15 days of monthly
consumption by the PSFE site concerned. The Froges consignment inventory shall
be reduced to 0 tonnes in 2003 due to the establishment of a safety stock as
part of the supply chain.
SECTION 10 - INVENTORY ON CALL
The Supplier shall establish an on-call stock on its premises. The references
kept in the on-call stock shall be indicated by PSFE to the Supplier.
The maximum quantity in the on-call stock shall not exceed *** tonnes and the
merchandise kept in the on-call stock shall be automatically shipped two months
after the desired availability date.
The payment terms provided for in section 12 shall apply and the payment terms
shall be 30 days month-end (25th) (internal offset) from the date of receipt of
the invoice.
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
[TRANSLATION]
SECTION 11 - INVOICING
All invoices shall specify the order number and the quantity and price of the
Products delivered.
All invoices shall show the amount of refundable and non-refundable taxes, the
discount terms and, more generally, all mandatory legal or regulatory
information as at the date of invoicing.
SECTION 12 - PRICES - TERMS OF PAYMENT
The price list included in Schedule 1 sets the prices of the Products for 2003.
It shall be effective as of January 1, 2003 and shall continue in effect for the
following *** years, provided that any change in the CPI (consumer price index)
of the OECD does not exceed a rate of between *** and ***%. In such case, PSFE
and Pechiney Eurofoil would share the increase equally over the following two
years, after the first ***%.
Payments shall be made in the currency indicated in the price list.
Payments shall be made upon receipt of the product and the corresponding invoice
accepted by our respective responsible departments as follows:
PSFE France: 30 days month-end 25th (internal offset)
PSFE Darmstadt: 14 days date of invoicing less ***%
Spain - Portugal: 105 days, date of invoicing
Italy: 90 days date of invoicing
If payment is made early, a discount of ***% per thirty (30) business days shall
be automatically applied to the amount of invoices paid early in 2003.
If payment is made late, in accordance with Law No. 2001-420 of May 15, 2001
(section 53), a late payment interest rate equal to one and one half times the
legal interest rate shall be charged. In the event that invoices are contested,
the time shall be interrupted. There shall be no other compensation for late
payments.
SECTION 13 - REVISION CLAUSE
If the technical, economic or social conditions existing at the time this
agreement comes into effect change significantly, so that the fairness of this
agreement from an economic standpoint is substantially modified and the
obligations of one of the parties become in fairness impossible for it to
assume, the Parties shall meet to seek a solution that corresponds to the
legitimate interests of each of the Parties.
SECTION 14 - HEALTH AND SAFETY
The Supplier warrants that the Products that are the object of this Agreement
are all equipped with all the regulation safety devices that are customarily
used in the trade. The Supplier shall take the initiative of suggesting
additional safety devices for the Products.
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
[TRANSLATION]
SECTION 15 - WARRANTY
Independently of the legal warranties and regardless of the causes of any
defect, the Supplier warrants the Products for at least twelve (12) months
against any latent or apparent defect, starting on the date of their delivery.
The Supplier shall be bound to restore the Products to conformity with the
contractual specifications and performances as soon as possible and at its sole
expense, including the cost of parts, transportation, labour and adjustments.
Any repair, complete or partial replacement and/or any supply under the warranty
shall be accompanied with another warranty of the Supplier for a period of
twelve (12) months starting on the date of the repair, replacement or supply of
the defective Product.
SECTION 16 - LIABILITY AND INSURANCE
16.1 The Supplier and any subcontractor whose assistance the Supplier seeks for
the performance of its obligations agree to purchase general liability
insurance covering the monetary amount of any bodily or property damage
which could be sustained by PSFE as a result of or on the occasion of the
performance of the obligations that are the object of the agreement, for an
amount of twenty million Euros (Euro20,000,000).
16.2 Such insurance shall be kept in force for the whole duration of the
liability, including the contractual warranty period (without limits per
claim and per year) and shall be purchased from an insurance company that
is known to be solvent.
16.3 A certificate of such company shall be attached to this Agreement. The
Supplier agrees to communicate to PSFE a certificate for the insurance
purchased by its subcontractors within the fifteen (15) calendar days
preceding the involvement of the subcontractors whose services it has
decided to retain.
The Supplier agrees to immediately inform PSFE (within 24 hours of becoming
aware of an event that could lead to the suspension or termination of the
general liability policy) of any change, non-payment of premium or any
event that could reduce the coverage afforded by such policies.
16.4 If, as a result of amendments to the Agreement, PSFE deems that the
coverage is no longer sufficient, it shall so inform the Supplier by
registered mail with a notice of receipt specifying the new coverage to be
provided by the Supplier and its subcontractors.
16.5 The Supplier and its subcontractors shall then, within no more than fifteen
(15) business days, send an application which must be accepted in writing
by PSFE and which shall be attached in the form of a rider to the agreement
with the insurer's certificate attached as a schedule thereto.
16.6 These provisions do not constitute a waiver of claims for sums over and
above the insured amounts.
[TRANSLATION]
SECTION 17 - TRANSFER OF RISKS AND OF OWNERSHIP
The transfer of risks from the Supplier to PSFE shall take place upon receipt of
the Products as described in section 2.
The Products supplied shall remain the property of the Supplier until payment in
full of all sums owing to the Supplier.
SECTION 18 - REBATE
A rebate shall be applied at the year-end on total sales. The percentage rebate
shall be determined based on the sales volume and is specified in the table
attached as Schedule 2.
Furthermore, a monthly productivity rebate shall be paid based on the foil
widths ordered as specified in the table attached as Schedule 3.
SECTION 19 - TECHNICAL ASSISTANCE / DUTY TO INFORM
The Supplier shall disclose free of charge to PSFE all qualitative and
quantitative information and all commercial and technical information pertaining
to the Products.
The Supplier shall make suggestions and recommendations to PSFE with regard to:
- Standardization
- Substitution
- Use
- Training
in order to improve the overall economic performance of the Products.
The Supplier shall make available to PSFE the necessary material and human
resources to permit the certification of the new or existing products for new
customers.
The Supplier agrees to notify PSFE as soon as it becomes aware of any incident
that could jeopardize the smooth implementation of the agreement, particularly
as concerns its sources of supply (financial difficulties, legal changes or
cessation of the operations of its suppliers...).
SECTION 20 - CONFIDENTIALITY
The Supplier agrees, on its own behalf and on behalf of its employees (including
those who cease to be employed by the Supplier) and its suppliers and
subcontractors, to keep confidential all information that comes to its knowledge
during the performance of this agreement and for five (5) years following the
end of this agreement.
[TRANSLATION]
SECTION 21 - COMMUNICATIONS AND ADVERTISEMENTS RELATING TO THE SUPPLY
The Supplier may not communicate or advertise in any way the supply of the
Products pursuant to the order without the prior consent of PSFE.
SECTION 22 - ASSIGNMENT
This agreement may not be assigned in whole or in part by the Supplier without
the prior written consent of the other Party, except to the successor to the
Assigning Party or to a corporation that acquires all or substantially all of
the capital assets in the manufacturing facility of the Assigning Party or to
any affiliate in which the Party or its parent holds at least 50% of the capital
directly or indirectly.
For purposes of this agreement, affiliate means any corporation, present or
future, in which SOPLARIL or PEFE or their parent corporation(s) hold over 50%
of the capital and/or the voting rights directly or indirectly.
SECTION 23 - TERM OF THE AGREEMENT
This agreement has been entered into for a term of *** years. It shall take
effect retroactively to January 1, 2003 and, with the exception of the
provisions of section 20 relating to confidentiality, shall terminate on
December 31, ***, unless it is terminated early as provided for in section 24
hereinbelow.
SECTION 24 - TERMINATION
Any default by either of the Parties to perform any of their obligations
hereunder that is not cured within 30 business days following formal notice
given by the other Party by registered mail with an acknowledgment of receipt
shall entitle the non-defaulting Party to terminate this agreement without
further notice, without prejudice to the non-defaulting Party's right to
damages, unless the defaulting Party can prove that it was subject to an event
of force majeure as indicated in section 25 hereinbelow.
SECTION 25 - FORCE MAJEURE
Each of the contracting Parties, after the Party invoking force majeure has
exhausted all the normal recourses available to it to perform its obligations
and provided that it has notified the other Party as soon as possible, shall be
provisionally released from its obligations under this agreement.
Any unforeseeable and uncontrollable external event that makes it impossible for
the Party invoking force majeure to perform its obligations shall constitute an
event of force majeure. In any case, a strike at the establishment of the
Supplier, its suppliers or its subcontractors shall not be considered to
constitute an event of force majeure.
The party invoking force majeure shall notify the other party of the occurrence
of an event of force majeure immediately by fax with a confirmation sent by
registered mail requesting a notice of receipt within three (3) business days of
knowledge of the event.
*** Certain information on this page has been omitted and filed separately with
the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
[TRANSLATION]
In all cases of force majeure, the Party invoking force majeure shall have the
onus of proving that there is a direct connection between the event of force
majeure and the failure of the Party invoking force majeure to perform its
obligations, which obligations shall only be suspended to the extent of the
event of force majeure.
No event of force majeure that occurs after the contractual times and that
exacerbates an unjustified delay shall be taken into consideration.
It is agreed that the Parties shall cooperate in good faith in order to use the
most appropriate means to ensure the quickest possible and most efficient
resumption by the Party affected by force majeure of the performance of its
obligations under this agreement. The end of an event of force majeure shall be
confirmed to the other Party on the same conditions and within the same times as
applied to its occurrence.
The term of this agreement shall be extended by a duration corresponding to the
duration of any application of this force majeure clause.
SECTION 26 - HEADINGS
The invalidity for any reason of any section or subsection of this agreement
shall not invalidate any other provision of this document.
SECTION 27 - LITIGATION - APPLICABLE LAW
Any disagreement or claim relating to the validity, interpretation or
performance of this agreement which cannot be amicably resolved by the Parties
shall be brought before the Tribunal de Commerce in Nanterre, unless otherwise
agreed in the order. The agreement shall be governed by French law, excluding
any rules pertaining to conflict of laws.
SECTION 28 - FINAL PROVISIONS
The Agreement may only be amended by an instrument in writing signed by the
authorized representatives of PSFE and the Supplier.
All of the provisions of the agreement and its schedules, including the book of
specifications, shall constitute the entire agreement between the Parties on the
matters contemplated therein and shall supersede and cancel all prior written or
verbal agreements.
None of the provisions of this agreement shall be deemed to have been set aside,
added to or amended by either of the Parties unless an amendment has been signed
by both Parties recording a decision to set aside, add to or amend the
application of a clause.
[TRANSLATION]
Done at Rueil Malmaison, in 3 counterparts
SOPLARIL XX XXXXXXXX EMBALLAGE FLEXIBLE EUROPE
XX XXXXXX
Date:
PECHINEY RHENALU
X.XXXXX
Date:
PECHINEY EUROFOIL LUXEMBOURG
X. XXXXX
Date:
PECHINEY EUROFOIL BELGIQUE X.X
X. XXXXX
Date:
