EXHIBIT 10.12
CONFIDENTIAL
TREATMENT
PARTS SOURCING CONTRACT
This is a PARTS SOURCING CONTRACT effective this 2nd day of December, 1994 (the
"Effective Date"), between GENERAL ELECTRIC COMPANY, a New York corporation
("GE"), and WIREKRAFT INDUSTRIES, INC., a Delaware corporation (the "Supplier").
1. Definitions. For purposes of this Contract, any amendments or
supplements hereto and any Exhibits or Schedules attached hereto, the
capitalized terms used herein shall have the following meanings:
(a) "AAA" is defined in Section 11.9.
(b) "AAA Rules" is defined in Section 11.9.
(c) "Action Plan" is defined in Section 10.1.
(d) "Actual Purchase Volume Adjustment Date" is defined in Section 3.4(d).
(e) "Actual Purchase Volume" is defined in Section 3.4(d).
(f) "Adjustment Date" is defined in Section 1.4 of Exhibit C.
(g) "Confidential Information" shall mean any proprietary matter received
by one party ("Receiver") from the other party ("Discloser") including without
limitation trade secrets, inventions, know-how, financial data, production
schedules and volumes, processes, reports, plans and documents, provided
however, that Confidential Information includes only information of either
party, which is initially disclosed in writing or other tangible form, clearly
marked "Proprietary" or "Confidential" or with other restrictive markings of
similar import, or if initially disclosed in unmarked or intangible form is
reduced to a properly marked tangible form and provided to the receiving party
within thirty (30) days from the date of initial disclosure. Confidential
Information shall exclude any such information which: (i) prior to Receiver's
receipt thereof was publicly available or in Receiver's possession from a
source other than Discloser, or (ii) after Receiver's receipt thereof becomes
publicly available otherwise than as a consequence of a breach of Receiver's
obligations hereunder, or (iii) is rightfully acquired by Receiver without a
confidentiality obligation from a third party who is under no obligation to
Discloser to maintain the confidentiality of the information, or (iv) is
independently developed by Receiver, or (v) is required to be disclosed by law,
provided that Receiver shall promptly notify Discloser at any time it believes
it is legally required to disclose the Discloser's Confidential Information and
to the extent Receiver
is reasonably able to do so, it shall refrain from disclosing such information
until the Discloser has the opportunity to oppose such disclosure or obtain an
acceptable protective order.
(h) "Contract" shall mean this Parts Sourcing Contract, together with
the Exhibits and Schedules attached hereto.
(i) "Contract Period" is defined in Section 2.
(j) "Controlled Affiliate" shall mean an affiliate whereby GE possesses,
directly or indirectly, the power to direct or cause the direction of the
management and policies of an affiliate, whether through ownership of voting
securities, by contract or otherwise.
(k) "Current PPM Rate" shall mean the aggregate PPM for Wire Harnesses
produced by ECM for GE for the 10 months ended October 31, 1994, as provided in
Exhibit I.
(l) "ECM" shall mean Electro Componentes de Mexico, S.A. de C.V.
(m) "Effective Date" is defined in the introductory paragraph to this
Contract.
(n) "Excessive Failure" is defined is Section 2.2 of Exhibit E.
(o) "Existing Wire Harnesses" shall mean the Wire Harnesses described in
Exhibit A. Any Existing Wire Harness as to which a design modification
increases or decreases its total billing price by less than twenty percent
(20%) will continue to be classified as an Existing Wire Harness.
(p) "Facilities" shall mean the facilities of the Supplier located in
(a) Parques Industriales Xxxxxx, Xx. Xxxxxx, Chihuahua, Mexico and Parques
Industriales Las Americas, Chihuahua, Chihuahua, Mexico and (b) related assets
purchased by the Supplier pursuant to the Purchase Agreement that will be used
to manufacture the Wire Harnesses.
(q) "force majeure conditions" is defined in Section 5.
(r) "Functional Substitute" is defined in Section 3.7.
(s) "GE" is defined in the introductory paragraph to this Contract.
(t) "GEA" shall mean all of the Manufacturing Sites referred to
collectively.
(u) "GEA Companies" shall mean GEA and Successor Facilities.
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(v) "Incentive Target" shall mean the PPM for Wire Harnesses determined
as described below for the calendar year:
FISCAL YEAR ENDING INCENTIVE TARGET
------------------ ----------------
1995 Current PPM Rate x [*]
1996 Current PPM Rate x [*]
1997 Current PPM Rate x [*]
1998 Current PPM Rate x [*]
1999 Current PPM Rate x [*]
2000 Current PPM Rate x [*]
2001 Current PPM Rate x [*]
2002 Current PPM Rate x [*]
provided, however, that in no event shall the Incentive Target be less than a
PPM for Wire Harnesses of [*] for any calendar year.
(w) "Indemnifiable Losses" shall mean any and all damages, costs and
expenses (including investigatory and diagnostic costs and expenses and
reasonable attorneys' fees and dispute resolution costs).
(x) "Indemnifying Party" is defined in Section 3.2(a) of Exhibit E.
(y) "Indemnitee" is defined in Section 3.2(a) of Exhibit E.
(z) "Labor Price Adjustment" is defined in Section 1.5 of Exhibit C.
(aa) "Lead Time" shall mean the period of time expressed in weeks
commencing on the date an order for a Wire Harness is placed with the Supplier
by GE and ending upon delivery of such Wire Harness to GE. Such Lead Times are
set forth in Exhibit D.
(ab) "Manufacturing Site" shall mean the (i) Bloomington, Indiana; (ii)
Decatur, Alabama; (iii) Appliance Xxxx Xxxxxxxx 0, Xxxxxxxxxx, Xxxxxxxx; (iv)
Appliance Xxxx Xxxxxxxx 0, Xxxxxxxxxx, Xxxxxxxx; (v) Appliance Xxxx Xxxxxxxx 0,
Xxxxxxxxxx Xxxxxxxx; (vi) Appliance Xxxx Xxxxxxxx 0, Xxxxxxxxxx, Xxxxxxxx; (vii)
Appliance Park Building 5, Louisville, Kentucky (i, ii, iii, iv, v, vi, and vii
are the manufacturing facilities of GE Appliances, an operating component of
GE); or (viii) the Lafayette, Georgia manufacturing facility of Xxxxx
Corporation. More than one Manufacturing Site may be referred to in this
Contract as "Manufacturing Sites."
(ac) "Material Quality Breach" shall occur if the Supplier shall fail
to achieve for any calendar quarter a PPM for Wire Harnesses equal to or greater
than [*] the Current PPM Rate.
(ad) "Mexican Labor Costs" is defined in Section 1.5 of Exhibit C.
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* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
(ae) "Minimum Purchase Obligation" is defined in Section 3.4(c).
(af) "New Major Appliance" is a kitchen or laundry appliance that does
not constitute a Same Major Appliance Product Lines.
(ag) "New Wire Harness" shall mean any Wire Harness that is not an
Existing Wire Harness or a Special Wire Harness.
(ah) "Other GE Companies" shall mean those operating components,
divisions, subsidiaries, and affiliates of GE that are not GEA Companies.
(ai) "Outsourcing Initiative" is defined in Section 3.4(b).
(aj) "PPI" shall mean the Producer Price Index for finished goods
excluding foods and energy, as published by the United States Department of
Labor, Bureau of Labor Statistics.
(ak) "PPM shall mean the incidental part per million rejection rate for
a part which is determined by taking the product of (i) the sum of the incoming
and line rejections, divided by the total receipts and (ii) one (1) million.
(al) "Purchase Agreement" shall mean the Acquisition Agreement dated as
of December 2, 1994, among GEA MergerSub I Inc., a Delaware corporation, WB
Holdings Inc., a Delaware corporation, the Supplier, GEA MergerSub II Inc., a
Delaware corporation and GE.
(am) "Quarterly Adjustment Date" shall mean any January 1, April 1,
July 1 or October 1.
(an) "Quality Breach" shall occur if the Supplier shall fail to achieve
for any calendar quarter a PPM for Wire Harnesses equal to or move than the
Current PPM Rate plus [*].
(ao) "Quality Target" shall mean the PPM for Wire Harnesses determined
as described below for the calendar year:
FISCAL YEAR ENDING QUALITY TARGET
------------------ --------------
1995 Current PPM Rate x [*]
1996 Current PPM Rate x [*]
1997 Current PPM Rate x [*]
1998 Current PPM Rate x [*]
1999 Current PPM Rate x [*]
2000 Current PPM Rate x [*]
2001 Current PPM Rate x [*]
2002 Current PPM Rate x [*]
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*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
provided, however, that in no event shall the Quality Target be less than a PPM
for Wire Harnesses of [*] for any calendar year.
(ap) "Same Major Appliance Product Lines" shall mean a kitchen or
laundry major appliance product line that is the same or technologically similar
to a major appliance product line that is being manufactured by GEA as of the
Effective Date.
(aq) "Special Wire Harness" shall mean the Wire Harnesses described in
Exhibit B. Any Special Wire Harness as to which a design modification increases
or decreases its total billing price by less than twenty percent (20%) will
continue to be classified as a Special Wire Harness.
(ar) "Specifications" shall mean the design and safety features,
drawings, functions and performance capabilities established for the Wire
Harnesses by GE.
(as) "Successor Facilities" shall mean any operating or business
location of GE or any Controlled Affiliate (excluding Camco Inc., a Canadian
corporation, ("Camco") and CONTROLADORA XXXX, X.X. de C.V. ("MABE") (i) that
manufactures Same Major Appliance Product Lines that utilize Wire Harnesses and
are sold in the United States market and (ii) is either (A) constructed,
acquired or has commenced operations after the date hereof, or (B) has had
transferred to it some or all of the business or operations of GEA after the
date hereof. Notwithstanding the above, any Controlled Affiliate (excluding
Camco and MABE) which manufactures Same Major Appliance Product Lines outside of
North America after the date hereof shall not be considered a Successor Facility
unless such Controlled Affiliate (together with all other such Controlled
Affiliates) manufactures in excess of 150,000 appliance units for sale in the
United States during any calendar year.
(at) "Supplier" is defined in the introductory paragraph to this
Contract.
(au) "Supplier's Components" is defined in Section 1.6 of Exhibit C.
(av) "Technology" shall mean all of the patents, patent applications,
trade secrets, technical knowledge, know-how and other rights conveyed by GE to
the Supplier pursuant to the Purchase Agreement or owned by ECM on the Effective
Date.
(aw) "Termination Date" is defined in Section 2.
(ax) "Third Party" shall mean any person or entity who or which is not
a party to this Contract or an affiliate of a party to this Contract.
(ay) "Third-Party Claim" shall mean any claim, action or proceeding
made or brought by any person or entity who or which is not a party to this
Contract or an affiliate of a party to this Contract.
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* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
(az) "Transfer" is defined in Section 3.4(a).
(aaa) "UN Rules" is defined in Section 11.9.
(aab) "Warranty Period" is defined in Section 4 of Exhibit E.
(aac) "Wire Harnesses" shall mean a subassembly consisting of wire,
terminals/connectors and other devices (such assemblies to include 110 volt
domestic cord sets) with application in the kitchen or laundry appliance
business. Cord sets sold outside the United States and 210 volt cord set units
are not included in this definition of Wire Harnesses.
(aad) "Worldwide Requirements" shall mean 100% of GEA Companies'
requirements for the Wire Harnesses.
2. Contract Period. The term of this Contract (the "Contract Period")
shall commence as of the Effective Date and shall end on December 31, 2002 (the
"Termination Date"), unless this Contract is terminated prior to the Termination
Date in accordance with the provisions hereof.
3. Sales and Purchases.
3.1 Wire Harnesses. During the Contract Period, the Supplier
agrees to manufacture and sell to GE, and GE agrees that it will purchase from
the Supplier, one-hundred percent (100%) of GEA Companies' Worldwide
Requirements for Wire Harnesses (excluding Special Wire Harnesses) upon the
terms and conditions set forth herein.
3.2 Special Wire Harnesses. As of the Effective Date, the
Supplier and GE will as promptly as practicable take any and all necessary steps
to qualify Supplier to supply Special Wire Harnesses to GE. After the Supplier
becomes qualified and then during the remaining term of the Contract Period, the
Supplier agrees to manufacture and sell to GE, and GE agrees that it will
purchase from the Supplier one hundred percent (100%) of GEA Companies'
Worldwide Requirements for Special Wire Harnesses upon the terms and conditions
set forth herein; [*]
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* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
3.3 Pricing and Payment. Pricing and other payment terms for the Wire
Harnesses applicable during the Contract Period are described in Exhibit C.
3.4 Worldwide Requirements. (a) All references in this Contract to GEA
Companies' Worldwide Requirements for the Wire Harnesses shall be deemed to
refer to all of the requirements of all GEA Companies, and GE agrees to take
all steps that may be necessary to ensure that such GEA Companies comply with
this Contract. During the Contract Period, if GE or any of its subsidiaries or
affiliates sells, assigns or otherwise transfers ("Transfer") the business,
assets or operations of any GEA Company or any portion of the business of a GEA
Company, GE shall require, or shall cause the applicable subsidiary or affiliate
thereof to require, as a condition to such Transfer, that the entity acquiring
such business, assets or operations enter into an agreement with the Supplier,
extending throughout the remainder of the Contract Period, for the supply of the
Wire Harnesses to such entity that is substantially similar to this Contract in
form and substance.
[*]
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* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
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*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
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*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
3.5 Other GE Companies. GEA agrees that as to any Other GE Company that
purchases wire harnesses (for any application) for its business, GEA shall cause
the members of GEA to use their reasonable best efforts to ensure that the
Supplier is afforded the opportunity to provide such Other GE Company with a bid
on the supply of wire harnesses (for any application) required by such Other GE
Company. The Supplier acknowledges that (a) GEA may not have any influence over
the buying decisions of Other GE Companies and (b) GEA's reasonable best efforts
on behalf of the Supplier may not translate into any additional business for the
Supplier with Other GE Companies.
3.6 Scheduling of Production and Placement of Orders for Wire Harnesses. It
is understood and agreed that in scheduling production and placing of orders for
Wire Harnesses after the Effective Date, the parties shall adhere to the extent
possible to the systems and procedures utilized by GEA Companies and ECM prior
to the Effective Date, with such changes and adjustments as the parties may
mutually agree in writing are necessary or desirable with a view to ensuring
efficient production and timely delivery of Wire Harnesses. Throughout the
Contract Period, the Supplier will deliver Wire Harnesses to GEA in accordance
with the Lead Times as provided in Exhibit D.
3.7 Functional Substitute. GE and Supplier recognize that changes or
modifications may be made by GE to any of the major kitchen or laundry appliance
products it manufactures or sells, which changes may include the replacement of
a Wire Harness with a technologically different product (a "Functional
Substitute") which would make Wire Harnesses obsolete, or significantly reduce
GE's demand for Wire Harnesses for some major kitchen or laundry appliances.
Notwithstanding anything else contained in this agreement, GE shall be solely
responsible for any such changes or modifications; provided, however, GE agrees
to use its best efforts to consult in good faith with Supplier early in the
design cycle of Same Major Appliance Product Lines or New Major Appliances which
will incorporate a Functional Substitute, unless GE is prohibited from doing so
pursuant to an agreement between GE and a third party. Accordingly, if GE
desires to purchase a Functional Substitute for Same Major Appliance Product
Lines or New Major Appliances, GE shall be required to so notify Supplier and
provide Supplier the opportunity to make a proposal to GE to manufacture such
Functional Substitute, subject to the following conditions and procedures.
Supplier shall, within a reasonable time period designated by GE from the date
of Supplier's receipt of GE's notice, inform GE whether Supplier desires to and
has the capability to manufacture and supply such Functional Substitute to GE.
If Supplier desires to manufacture and supply such Functional Substitute,
Supplier shall provide GE (a) a written production plan demonstrating Supplier's
ability to produce such Functional Substitute in accordance with GE's proposed
specifications (such plan shall include production locations and proposed dates
for prototypes, sample production and full production) and (b) Supplier's
proposed prices for such Functional Substitute. In the event that GE and
Supplier reasonably determine that Supplier can adequately produce such
Functional Substitute in accordance with GE's proposed specifications
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and such Functional Substitute meets the competition in price, quality, and
quantities, then such Functional Substitute will become an Existing Wire
Harness for purposes of this Agreement, extending throughout the remainder of
the Contract Period.
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4. Title, Freight, Etc.
4.1 Shipment and Risk of Loss. All Wire Harnesses shall be shipped
by the Supplier to GE's designated export carrier customs cleared. Title and
risk of loss of the Wire Harnesses shall pass to GE when they are delivered to
GE's designated export carrier customs cleared.
4.2 Delivery Obligations. Supplier will use reasonable efforts to
ship Wire Harnesses only in full container-load quantities, unless GE directs
otherwise. The Supplier agrees to manufacture Wire Harnesses in accordance with
the delivery dates specifically negotiated and agreed to between GE and the
Supplier and indicated in individual purchase orders/material arrival schedules
issued under the Contract or subsequently communicated to and accepted by the
Supplier in writing; provided, however, that absent such agreement or
acceptance by the Supplier, the Supplier will only be required to deliver the
Wire Harnesses within such Wire Harnesses' Lead Time which are firm delivery
dates. Supplier acknowledges that time is of the essence as to the delivery of
Wire Harnesses and if the Supplier does not comply with its delivery
obligations, GE may (i) cancel any order not timely delivered; and, if a third
party can deliver substitute Wire Harnesses to GE prior to Supplier so doing
(after taking into account Supplier's obligation pursuant to clause (ii)
below), then GE may "cover" by making in good faith and without unreasonable
delay any reasonable purchase of substitute Wire Harnesses (GE may recover from
Supplier as damages the difference between the cost of cover and the contract
price of the ordered Wire Harnesses) or (ii) require delivery by the most
expedient reasonable means available (with the Supplier absorbing and prepaying
all premium transportation charges). The Supplier will notify GE immediately of
any event which may result in any delay in the completion or the shipment of
any Wire Harness.
5. Force Majeure. (a) Neither the Supplier nor GE will be liable for any
failure or delay in performance of this Contract if the failure or delay is due
to an act of God, fire, flood, explosion, sabotage, accident, casualty, war,
strike, labor-related slow down or other labor-related disturbance, embargo,
government requirement, or civil or military authority, or other catastrophes
beyond the reasonable control and without the fault of such party ("force
majeure conditions"). Notwithstanding the foregoing, no force majeure condition
shall excuse or delay any payment obligations under this Contract where such
payment obligation relates to Wire Harnesses which have been accepted by GE.
(b) If the Supplier is unable to perform due to a force majeure
condition and such condition continues for thirty (30) days, GE may cancel any
affected order of this Contract without penalty (and without waiving any other
rights or remedies) and shall be excused, to the extent applicable, from its
purchase obligations set forth in Section 3, and may during the duration of the
force majeure condition purchase Wire Harnesses from a third party. Once the
force majeure condition ceases, GE and the
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Supplier shall resume performance under this Contract and the period of
performance under this Contract shall automatically be extended for the length
of time the force majeure condition endured.
(c) If GE is unable to perform due to a force majeure condition, GE's
and the Supplier's obligation shall be suspended (with respect to Wire
Harnesses affected by GE's inability to perform) for the duration of the force
majeure condition. Once the force majeure condition ceases, GE and the Supplier
shall resume performance under this Contract and the period of performance
under this Contract shall automatically be extended for the length of time the
force majeure condition endured.
(d) In addition to GE's rights as set forth above in Section 5(b), if
such a force majeure condition affects the Supplier so that the Supplier's
production capacity is reduced, the Supplier agrees to use its reasonable
efforts in its prudent business judgement to allocate its production so that
the Supplier gives first priority to GE's orders and requirements.
6. Design, Manufacturing, & Safety
6.1 GE will be responsible for and own the design of Wire Harnesses
while the Supplier will be responsible for the manufacture of Wire Harnesses.
If any governmental agency in the designated country or countries requires, as
a condition of selling Wire Harnesses within its jurisdiction, that part or all
of used Wire Harnesses or packaging of new Wire Harnesses be accepted back from
consumers, the Supplier will accept shipment of such Wire Harnesses from GE in
an effort to satisfy those agency take-back requirements.
6.2 The Supplier will establish and maintain (and use commercially
reasonable efforts to assure that the Supplier's suppliers establish and
maintain) Wire Harness manufacturing, testing, inspection, and other safety- and
quality-related processes that are adequate to assure the manufacture of all
Wire Harnesses in accordance with the Specifications. Throughout the Contract
Period, GE will be entitled to inspect the Supplier's processes upon reasonable
notice and without unreasonably disrupting the Supplier's operations. The
Supplier will use commercially reasonable efforts to arrange similar GE
inspection rights with each of the Supplier's suppliers. The Supplier will give
GE at least sixty (60) days' written notice and follow GE's "C-Change"
procedure before implementing (and to the extent possible, allowing any of the
Supplier's suppliers to implement) any material manufacturing changes or any
changes in (i) components, or (ii) raw materials, or (iii) safety- or
quality-related processes affecting Wire Harnesses.
6.3 The Supplier will use its reasonable efforts to obtain all
approvals or certifications (governmental or otherwise) required in connection
with the timely delivery of Wire Harnesses and the intended use of Wire
Harnesses. GE and its
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customers will provide reasonable assistance to the Supplier in obtaining those
approvals or certifications.
7. Quality
7.1 PPM Methodology. PPM will be calculated based on rejected parts
written up on a supplier failure reports ("SFR") by the Manufacturing Sites.
The basis for rejections will be as follows:
Incoming Inspection. There will be no formal incoming inspection as an
ongoing activity. Incoming inspection will be used where damaged material
is evident or as a follow up to line rejects that indicate a need to
prevent problems from coming to the point of use on the production line. If
incoming lots are rejected, SFR's will record the reject data and that data
will be input into the PMQ system to provide a PPM output based on the
number of parts received.
Line Rejects. Parts deemed defective at point of use will be accumulated
and written up as rejects on an SFR. Where defects are a large number, the
entire lot will be rejected. The SFR will reflect the indicated percent
defective. SFR's percentage defective will be the basis for PPM calculation
by comparison to the number of parts received. If sorting is performed,
either by the Manufacturing Site or the Supplier, the percent defective
will be adjusted to reflect an accepted defect percentage.
If the Supplier provides Wire Harnesses to GE that do not conform to the
Specifications, GE's sole and exclusive remedy shall be to require the
Supplier to repair and replace such nonconforming Wire Harnesses at the
Supplier's cost and GE will be entitled to "xxxx-back" to the Supplier all
of GE's direct labor, reasonable handling, and other reasonable
out-of-pocket costs resulting from such delivery of non-conforming Wire
Harnesses; provided that in no event shall the Supplier be liable for in
excess of $250,000 per occurrence pursuant to this sentence.
7.2 Commitment to Quality. GE and Supplier acknowledge that they are
each committed to achieving a PPM for Wire Harnesses of [*]. In connection
therewith, each of GE and Supplier will use its respective best efforts in the
design and manufacture of Wire Harnesses to achieve a PPM of [*]. During the
term of this Contract, the parties shall jointly conduct semi-annual quality
meetings at which time they will jointly develop an action plan to achieve a
PPM of [*]. Such action plan will describe the methodology by which a PPM of [*]
will be achieved. The methodology will include, among other things redesigns of
Wire Harnesses, use of new techniques and technologies, and use of new suppliers
of raw materials and components. In addition, as of the Effective Date, the
Supplier and GE will, as promptly as practicable take all necessary steps to
qualify the Supplier as a supplier of wire for the manufacture of Wire
Harnesses. Further, from time to time upon the reasonable request of the
Supplier, GE shall take all necessary steps to qualify additional suppliers for
raw materials and components used by Supplier in the manufacture of Wire
Harnesses.
7.3 Quality Targets. During the term of this Contract, if Supplier
fails to achieve the applicable Quality Target for any calendar year, Supplier
shall pay GE an
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* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
amount equal to [*] for each such calendar year. Such payment shall be due and
payable within 30 days of the final determination of Supplier's PPM for Wire
Harnesses for such calendar year.
7.4 Quality Incentive. During the term of this Contract, if Supplier
achieves the applicable Incentive Target for any calendar year, GE shall pay to
Supplier an amount equal to [*] for each such calendar year. Such payment shall
be due and payable within 30 days of the final determination of Supplier's PPM
acceptance level for Wire Harnesses for such calendar year.
7.5 New Products. For a period of six months after initial production
of New Wire Harness, such New Wire Harness' PPM shall not be included in the
calculation of Supplier's PPM for purposes of determining the compliance or
satisfaction with Sections 7.3, 7.4, 7.6 or 7.7. After such six month period,
the PPM of such New Wire Harness shall be included in the calculation of
Supplier's PPM.
7.6 Quality Breach. In the event of a Quality Breach, GE shall notify
Supplier of such breach. Upon receipt of such notice, the parties shall promptly
meet and use their respective best efforts to jointly develop within such
calendar quarter an action plan to eliminate such Quality Breach. The parties
shall use their best efforts to implement the action plan within the following
calendar quarter after the action plan is developed. If at the end of the
calendar quarter of the implementation of the action plan, the Quality Breach is
continuing, then the prices for each Wire Harness purchased by GE shall be
decreased by an amount equal to [*] for as long as such quality breach
continues.
7.7 Material Quality Breach. In the event of a Material Quality Breach,
GE shall notify Supplier of such breach. Upon receipt of such notice, the
parties shall promptly meet and use their respective best efforts to jointly
develop within such calendar quarter an action plan to eliminate such Material
Quality Breach. The Supplier and GE shall use their respective best efforts to
implement such action plan within the following calendar quarter after the
action plan is developed. If at the end of the calendar quarter of the
implementation of the action plan, the Material Quality Breach is continuing, GE
may terminate its purchase obligations as it relates to any Manufacturing Site
where such Material Quality Breach occurred, or, if the Material Quality Breach
occurred at all Manufacturing Sites, GE may terminate this Contract. For
purposes of the preceding sentence a Material Quality Breach will occur with
respect to an individual Manufacturing Site if the PPM for Wire Harnesses
produced by Supplier for use by GE at such site is equal to [*] the PPM for Wire
Harnesses at such site for the 10 months' ended October 31, 1994, as provided
in Exhibit I.
8. Wire Harness Recall; Warranty; and Product Liability. Exhibit E sets
forth (a) the Supplier's and GE's obligations relating to hazardous conditions
and recalls involving Wire Harnesses; (b) the Supplier's warranty and disclaimer
for Wire Harnesses; (c) the Supplier's obligations relating to Excessive
Failures of Wire
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*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Harnesses; and (d) Supplier's and GE's indemnification obligations relating to
product liability claims.
9. Proprietary Rights. Exhibit G sets forth (a) the Supplier's right to use
trade names and/or trademarks; (b) the Supplier's and GE's indemnification
obligations relating to infringement of proprietary rights; and (c) the
Supplier's and GE's confidentiality obligations.
10. Termination.
10.1 Material Breach. In the event of a material breach of this
Contract for other than a Quality Breach or a Material Quality Breach, the
non-defaulting party shall notify the defaulting party of such default. Such
notice will specify with reasonable detail any such default. Upon receipt of
such notice, the parties shall promptly meet and jointly develop, in good
faith, an action plan setting forth steps to be implemented to enable the
defaulting party to cure such default, which plan will include the time period
for implementation of such steps (the "Action Plan"). If the parties do not
agree on an Action Plan within thirty (30) calendar days after receipt of the
notice of a material default, such dispute regarding the terms and provisions
of the Action Plan shall be submitted to arbitration pursuant to Section 11.9,
where upon the terms of such Action Plan shall be determined in accordance with
such Section. The Supplier and GE shall agree to implement such Action Plan
within the time period so specified. If the defaulting party does not comply
with the terms of the Action Plan, the non-defaulting party may, in addition to
any other rights and remedies it may have, at law or at equity, unless such
default is cured within thirty (30) days of such party's failure to comply with
the Action Plan, terminate this Contract; provided however, that if the
material breach of this Contract is caused by or is a result of the Supplier's
failure to supply certain Wire Harnesses pursuant to the terms hereof, the
non-defaulting party may only cancel the order and/or eliminate such Wire
Harnesses from GE's purchase requirements.
10.2 Default. Notwithstanding any other term of this Contract, if,
as a result of any equipment malfunction occurring within 6 months of the date
hereof which malfunction would constitute a breach of GE's representations and
warranties contained in Section 4.18(e) of the Purchase Agreement, the Supplier
is unable to meet its supply obligations hereunder. Supplier's failure to meet
its supply obligations shall not constitute a default by the Supplier under
this Contract for so long as is reasonably necessary for Supplier to correct
such equipment malfunction. Supplier shall use commercially reasonable efforts
to correct such malfunction as promptly as practicable.
10.3 Effects of Termination. Upon termination of this Contract
pursuant to (i) a Material Quality Breach occurring in every Manufacturing Site
pursuant to Section 7.7 or (ii) Section 10.1:
16
(a) all amounts owing to the Supplier under this Contract shall
become due and payable as provided in Exhibit C under the parties normal course
of dealings provided the defaulting party is the Supplier;
(b) all amounts owing to the Supplier under this Contract shall
become immediately due and payable provided the defaulting party is GE;
(c) the Supplier's obligation, if any, to deliver Wire Harnesses
hereunder shall immediately terminate;
(d) GE's obligation, if any, to purchase Wire Harnesses hereunder
shall terminate; and
(e) each of the parties shall have the right to enforce its rights
and remedies under this Contract, in addition to all the other rights or
remedies provided by law.
11. Miscellaneous.
11.1 (a) Copper. Although it is GE's intention to purchase Wire
Harnesses from the Supplier inclusive of copper and fabricating premiums, the
Supplier also agrees to allow GE to toll or rebill copper at GE's option should
the economics make tolling or rebilling advantageous to GE. At GE's request,
the parties will during the Contract Period enter into a rebilling agreement as
provided in Exhibit H for the copper utilized in the Wire Harnesses.
In order to allow GE and the Supplier maximum flexibility, Wire Harness
invoicing will be done by Supplier on a provisional standard basis for copper
content. At the end of each month, the Supplier will issue a make-up billing or
credit based upon the difference between the actual cost of copper and the
provisional standard basis. The monthly make-up billing or credit will be
issued by part number shipped with a sub-total for shipment to locations and
will bear the date of the original invoice. If the original invoice has already
been paid by GE, the make-up billing or credit will be settled within three
business days after receipt.
The actual cost of copper shall be derived using one of the following
methodologies: (i) Daily Arithmetic average for the prior month of Comex
(Commodities Exchange in
New York) plus [*] per pound premium, or (ii) Cost of
Forward Purchased Copper at a fixed price plus [*] per pound and/or other
transaction costs, or (iii) Cost of Rebilled Copper purchased from GE in
accordance with the terms provided in Exhibit H.
17
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Wire Harnesses prices as quoted in Exhibit A include raw copper cost
and related fabricating premiums. The provisional standard basis represented in
Exhibit A is set at $1.00 per pound and is inclusive of the related fabricating
premium. In order to minimize the make-up xxxxxxxx or credits, GE or the
Supplier may adjust the provisional standard basis annually.
(b) Other Re-Xxxx. The Supplier agrees to allow GE to rebill
components ("Rebilled Components") purchased from the following vendors: (1)
GE-Control Products, (2) Therm-O-Disc, (3) Xxxxx Corp., (4) GE-Accessory Equip.
and (5) AMP Inc. ("Rebill Vendors"); provided, however, that the Supplier may
discontinue GE's authority to rebill all or any portion of the components
purchased from AMP Inc. at any time upon prior written notice to GE.
In order to allow GE and the Supplier maximum flexibility, Wire Harness
invoicing by the Supplier will be done on a provisional standard basis for these
Rebilled Components. In 1995 this provisional standard basis will equal the
actual cost of these Rebilled Components as of the Effective Date. At the end of
each month, the Supplier will issue a make-up billing or credit based upon the
difference between the price for Rebilled Components charged by GE to the
Supplier ("Rebill Price for Rebilled Components") and the provisional standard
basis. The monthly make-up billing or credit will be issued by part number
shipped with a sub-total for shipment to locations and will bear the date of the
original invoice. If the original invoice has already been paid by GE, the
make-up billing or credit will be settled within three business days after
receipt. In order to minimize the make-up xxxxxxxx or credits. GE and the
Supplier may adjust the provisional standard basis of Rebilled Components
annually.
GE will purchase Rebilled Components from Rebill Vendors in quantities
needed to support manufacture of Wire Harnesses by Supplier for sale to GE.
Rebilled Components will be shipped by Rebill Vendors to the Supplier. These
Rebilled Components will be sold by GE to the Supplier at the Rebill Price for
Rebilled Components and title will transfer together with risk of loss to
Supplier f.o.b. Rebill Vendor dock. Thirty (30) days from the date of sale by GE
to Supplier, the amount due from Supplier will be netted against payable due
Supplier from GE. GE will be responsible for freight charges on Rebilled
Components shipped by Rebill Vendors to Supplier.
Rebilled Components shipped to Supplier under this arrangement will be
used solely for Wire Harnesses manufactured by Supplier for sale to GE. Supplier
will have sole responsibility to resolve disputes with Rebill Vendors related to
shipments of Rebilled Components such as short-shipments or defective material
shipments. The Rebill Price for Rebilled Components will be equal to the actual
cost of these Rebilled Components as of the Effective Date and may be adjusted
in GE's discretion.
18
11.2 Liability and Other Remedies. Neither party shall be liable for
damages of any kind as a result of exercising its right to terminate this
Contract according to its terms, and termination will not affect any other right
or remedy of either party.
11.3 Legal Fees and Other Costs. Should any action be brought by any
party to enforce its rights under this Contract, the prevailing party shall be
entitled to recover, in addition to any other damages it might claim, all of its
reasonable attorneys' fees and costs incurred in connection with such claim, the
enforcement and collection of any judgment relating thereto, all appeals thereof
and actions to recover the attorneys' fees and expenses permitted under this
Section 11.3.
11.4 Insurance. The Supplier will obtain and maintain during the term
of this Contract insurance in such amounts as is customary for companies in the
same or similar business located in the same or similar area. Such insurance
will be adequate in scope and coverage considering the potential liability
exposure. Notwithstanding the above, Supplier will maintain a general
comprehensive or other applicable product liability insurance policy with an
insurance carrier with an A- (minus) or better rating from A.M. Best Company,
Inc. having a combined single limit of no less than $2,000,000 to cover such
claims or losses. Supplier agrees to furnish or have its insurance carrier
furnish GE with Certificates of Insurance which evidence the required coverage
amount.
11.5 Compliance with Laws. The Supplier and GE shall each comply with
all national, federal, state, and local laws, ordinances, rules and regulations
applicable to the manufacture and sale of the Wire Harnesses and/or the
performance of the services required hereunder. The Supplier agrees to
indemnify, defend and hold GE harmless from any loss, damages or costs arising
from or caused in any way by the Supplier's actual or alleged violation of any
national, federal, state or local laws, ordinances, rules and regulations,
including but not limited to national, federal, state and local environmental
and health and safety laws and anti-dumping laws; provided, however, that the
Supplier shall have no obligations to indemnify GE for any claims arising (i)
from Supplier's usage of the Technology consistent with ECM's or GE's use prior
to the Effective Date, (ii) Suppliers manufacture of Wire Harnesses in
accordance with the Specifications, or (iii) in connection with any circumstance
where the Supplier is entitled to indemnification under the Purchase Agreement.
GE agrees to indemnify, defend and hold Supplier harmless from any loss, damages
or costs arising from or caused in any way by GE's actual or alleged violation
of any national, federal, state or local laws, ordinances, rules and
regulations, including but not limited to national, federal, state and local
environmental and health and safety laws and anti-dumping laws; provided,
however, that GE shall have no obligations to indemnify the Supplier for any
claims arising in connection with any circumstance where GE is entitled to
indemnification under the Purchase Agreement.
19
11.6 Entire Agreement; Amendments. This Contract, the Purchase
Agreement, and the Transition Services Agreement constitute the entire
agreement between the parties with respect to the subject matter hereof, and,
effective as of the Effective Date, shall supersede all prior agreements, oral
and written, and all other communications relating to the subject matter
hereof. No amendment or modification of any provision of this Contract shall be
effective unless it is set forth in writing that purports to amend this
Contract and is executed by both parties hereto. This Contract establishes all
the terms and conditions upon which GE will buy and the Supplier will sell Wire
Harnesses. Additional terms set forth in the Supplier's acknowledgement or
other acceptance of a GE order will not become part of the agreement between GE
and the Supplier. If any part of an order, acknowledgement, or similar document
conflicts with any provision of this Contract, the provisions of this Contract
will control in all respects.
11.7 Assignment. Either party may assign this Contract and delegate
its duties hereunder to a wholly-owned subsidiary, if the assignee agrees in
writing to be bound by the terms and conditions hereof. Except as expressly
permitted in the previous sentence, neither party shall assign, sell, transfer,
or assign any right or obligation hereunder without the prior written consent of
the other party, which consent shall not be unreasonably withheld; provided
however, that, so long as GE would not be obligated to purchase Wire Harnesses
hereunder from a competitor of GE in the kitchen, laundry and air conditioning
appliance business or an affiliate, subsidiary, parent or successor of Xxxxxxxx
Electronics N.V., Osram Sylvania Inc. and Xxxxxxx Electric Company, the Supplier
may assign this Contract and delegate its duties hereunder to a successor entity
in a merger or consolidation in which it participates or to a purchaser of
substantially all of its assets, if the assignee agrees in writing to be bound
by the terms and conditions hereof. Any act in derogation of the foregoing shall
be null and void; provided, however, that any assignment shall not relieve the
assigning party of its obligations under this Contract.
11.8 Governing Law. The substantive law (excluding choice-of-law
rules) of
New York (U.S.A.) will govern this Contract. The Supplier and GE
hereby exclude and elect not to be bound by the United Nations Convention on
Contracts for the International Sale of Goods.
11.9 Arbitration. If a dispute arises out of or relates to this
Contract or its breach and the parties have not been successful in resolving
such dispute through negotiation, the parties agree that such dispute will be
resolved finally, conclusively, and exclusively through binding, private
arbitration pursuant to this paragraph 11.9 and the Arbitration Rules adopted
by the United Nations Commission on International Trade Law on April 18, 1979
(the "UN Rules"). The parties shall agree to use the American Arbitration
Association rules (the "AAA Rules") where all the parties to the dispute are
entities of the Unites States. The following special rules will apply and
control the UN Rules and the AAA Rules: (1) the arbitral tribunal will be
composed of three arbitrators; (2) the American Arbitration Association (the
"AAA") will serve as the appointing
20
authority; (3) the arbitration proceedings will be conducted in the English
language; (4) the place of arbitration will be Chicago, Illinois (USA); and (5)
the substantive laws of
New York will govern any dispute relating to this
Contract. GE and the Supplier agree that the award of the arbitration tribunal
will be the sole and exclusive remedy between them regarding all claims and
counterclaims presented to tribunal, and that judgment upon any award of the
arbitration tribunal may be enforced in any court having jurisdiction over the
parties. The Supplier and GE hereby consent to jurisdiction and venue in any
United States District Court for purposes of enforcing any such award. All
statements, exhibits, and other materials used in any negotiations or
arbitrations hereunder will be confidential and not subject to disclosure by
either party. The parties, their representatives, other participants and the
arbitrator shall hold the existence, content and result of the arbitration in
confidence.
11.10 Severability. If any provision of this Contract is held by a court
of competent jurisdiction to be contrary to law, then the remaining provisions
of this Contract shall remain in full force and effect.
11.11 Waiver. No waiver by either party to this Contract, whether express
or implied, of its rights under any provision of this Contract shall constitute
a waiver of the party's rights under the provision at any other time or a
waiver of any of its rights under any other provision of this Contract. No
failure by either party to this Contract to take any action in respect of any
breach of this Contract or default by the other party to this Contract shall
constitute a waiver of such party's right to enforce any provision of this
Contract or to take action in respect of the breach or default or any
subsequent breach or default by the other party.
11.12 Counterparts. This Contract may be executed in counterparts, each of
which shall be deemed to be an original, but all of which taken together shall
constitute one and the same instrument.
11.13 Headings. The section and paragraph headings in this Contract are
for convenience of reference only and shall not be deemed to alter or affect
any provision of this Contract.
11.14 GE and the Supplier Acting as Independent Contractors; Expenses.
Each of GE and the Supplier acknowledges and agrees that each party, in
performing its obligations pursuant to this Contract, is acting as an
independent contractor, and is not to be considered or deemed to be an agent,
employee, joint venturer or partner of the other party. Neither party has the
authority to contract for or bind the other party in any manner, and neither
party shall represent itself as an agent of the other party or as otherwise
authorized to act for or on behalf of the other party. No representative of a
party to this Contract shall have the status of an employee of the other party
or any right to any benefits that the other party grants to its employees. Each
party acknowledges that as an independent contractor, it is fully responsible
for its federal, state and local taxes and those of its employees. Each of the
parties shall pay its own
21
costs and expenses, including without limitation legal fees, incurred or to be
incurred by it in negotiating and preparing this Contract.
11.15 Notices. Any notice, demand, request or communication required or
permitted to be made or given by either party under this Contract shall be made
in writing and shall be deemed to have been duly given or delivered if
delivered personally or sent by telex, facsimile, telegram, express delivery
service, or registered or certified mail, return receipt requested, with
first-class postage prepaid.
(a) To GE:
GE Appliances
Appliance Park, AP3-207
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy of each to:
GE Appliances
Appliance Park, AP2-225
Attn: Xxxxx X. Xxxxxxx
Fax: (000) 000-0000
GE Appliances
Appliance Park, AP2-120
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. X'Xxxxx
Fax: (000) 000-0000
(b) To the Supplier:
0000 Xxxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxx
Fax: (000) 000-0000
with a copy of each to:
Hicks, Muse, Xxxx & Xxxxx Incorporated
000 Xxxxxxxx Xxxxx; Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxx X. Xxxxx
Xxxx X. Xxxx
Xxxx X. Xxxxx
22
IN WITNESS WHEREOF, the parties hereto have executed this Contract as of
the date first above written.
GENERAL ELECTRIC COMPANY
By: /s/ XXXXXXX X. XXXXX
------------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------
Title: Vice President
----------------------------
WIREKRAFT INDUSTRIES, INC.
By: /s/ XXXXX XXXXXXX
------------------------------------
Name: Xxxxx Xxxxxxx
----------------------------
Title: Vice President
----------------------------
23
EXHIBIT A
EXISTING WIRE HARNESSES: PRICES
SITE: AP1
# DRAWING # PRICE (US$ PER HUNDRED)
- --------- -----------------------
[*]
24
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
25
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
26
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
27
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
28
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
29
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
30
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
31
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
32
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
33
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
34
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
35
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
36
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
37
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
EXHIBIT B
[*]
38
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
EXHIBIT C
PRICING AND PAYMENT
1. PRICING
1.1 Existing Wire Harnesses. The initial prices of Existing Wire
Harnesses shall be as set forth in Exhibit A (subject to adjustment in
accordance with Sections 1.4, 1.5, 1.6, and 1.7 and 1.9 of this Exhibit C). The
price of any Existing Wire Harness as to which a design modification increases
or decreases its total billing price by less than twenty percent (20%) shall be
determined in accordance with the formula set forth in Schedule 1.1 to this
Exhibit C (subject to adjustment in accordance with Sections 1.4, 1.5, 1.6, 1.7
and 1.9 of this Exhibit C).
1.2 Special Wire Harnesses. The listing of Special Wire Harnesses shall
be as set forth in Exhibit B. The price once established of any Special Wire
Harness (subject to adjustment as set forth in Sections 1.4, 1.5, 1.6, 1.7 and
1.9 of this Exhibit C) as to which a design modification increases or decreases
its total billing price by less than twenty percent (20%) shall be determined in
accordance with the formula set forth in Schedule 1.1 to this Exhibit C (subject
to adjustment in accordance with Sections 1.4, 1.5, 1.6, 1.7 and 1.9 of this
Exhibit C).
1.3 New Wire Harnesses. The initial prices for New Wire Harnesses shall
be [*]. Upon GE's reasonable request, Supplier will provide to GE a schedule
together with reasonable supporting documentation, including but not limited to
copies of third party invoices, indicating the cost to manufacture such New Wire
Harnesses and the Wire Harness or Wire Harnesses upon which the [*].
[*]
39
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
40
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
41
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
[*]
[*]
2. Favored Nation Pricing. If at any time during the Contract Period,
the Supplier provides more favorable terms to a customer for Wire Harnesses than
those terms which GEA Companies is receiving for similar Wire Harnesses, taking
into account quantities, duties, freight, and quality requirements, inventory
requirements, service level and other similar terms, then, so long as GEA
Companies are in compliance with all the terms of this Contract, the Supplier
shall grant equally favorable terms to GEA Companies on quantities of Wire
Harnesses substantially the same as those sold to such customer until such
arrangement with such customer is terminated. Nothing in this Contract shall be
deemed to restrict or limit the Supplier's ability to sell the Wire Harnesses to
any person on such terms as it deems appropriate. This Section 2, however, shall
not apply to bids, quotes or contracts with (a) affiliated companies of the
Supplier (other than bids, quotes or contracts which circumvent the intent of
this Section 2) or (b) governmental or quasi-governmental agencies.
3. Taxes, Freight and Custom Duties. The prices for all Wire Harnesses
shall be exclusive of all U.S. freight charges which are the exclusive
responsibility of and shall be paid by GE. U.S. import duties are the exclusive
responsibility of and shall be paid by the Supplier. GE shall be entitled to any
duty-drawback payable as a result of GE's subsequent re-exportation of the Wire
Harnesses outside of the United States. On request, the parties shall furnish
each other with such information and assistance as shall be necessary to
42
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
to obtain any such duty-drawback. GE shall pay any customs duties imposed upon
the importation of the Wire Harnesses into any foreign country.
4. Invoicing. Any Wire Harnesses delivered to a GEA Company shall be
invoiced to that GEA Company, provided that GE shall remain jointly and
severally liable for all such payments to the extent it is not the invoiced
party. All invoices for the Wire Harnesses purchased by GE hereunder shall be
due and payable on an average of [*] days but in no event longer than [*] days
from the date of the Supplier's invoice. The Supplier shall issue an invoice to
GE with respect to purchased Wire Harnesses upon their shipment to the
applicable GEA Companies.
5. Payment in U.S. Dollars. Unless otherwise agreed to by the parties in
writing, all amounts invoiced and payable under this Contract shall be paid in
U.S. dollars. Unless other wise indicated, all other sums set forth in this
Contract are denominated in U.S. dollars.
43
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
SCHEDULE 1.1, EXHIBIT C
[*]
44
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
[*]
45
*Filed under an application for confidential treatment
with the Securities and Exchange Commission.
SCHEDULE 1.2
EXHIBIT C EXAMPLES
EXHIBIT C. SECTION 1.5.
[*]
46
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
SCHEDULE 1.3
EXHIBIT C EXAMPLES
EXHIBIT C. SECTION 1.6 & 1.7:
[*]
47
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
48
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
49
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
50
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
51
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
52
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
53
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
54
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
55
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
56
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
57
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
58
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
59
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
60
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
61
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
62
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
63
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
64
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
65
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
66
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
67
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
68
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
69
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
70
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
71
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
72
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
73
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
74
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
75
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
76
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
77
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
78
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
79
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
80
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
81
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
82
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
83
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Schedule 1.4
Exhibit C
[*]
84
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
SCHEDULE 1.5
EXHIBIT C
[*]
85
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
SCHEDULE 1.5
EXHIBIT C
[*]
86
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
SCHEDULE 1.5
EXHIBIT C
[*]
87
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
SCHEDULE 1.5
EXHIBIT C
[*]
88
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
EXHIBIT D
PARTS SCHEDULING
GEA SCHEDULING POLICY
o A Forecast of Requirements will be communicated via EDI (DZ47). This is
also called our material arrival schedule (MAS).
Timing - weekly or monthly, whichever is required.
o A Delivery Schedule will be communicated via EDI (DZIA). This is our
daily delivery schedule.
Timing - Daily
GEA SCHEDULING COMMITMENTS ("LEAD TIMES")
MAS Commitment Period Material Stage Commitment
--------------------- -------------- ----------
[*] Finished Goods - Schedule may change Committed for price of "finished parts", "in process parts"
and "raw material"
[*] In Process - Schedule may change Committed for price of "in process parts" and "raw material"
[*] Raw Materials - Schedule may change Committed for price of "raw material" only
[*] Capacity Planning for Supplier No Commitment
As Suppliers reduce their cycle times, the above commitment periods will be
reduced, minimizing exposure to obsolescence
FLEXIBILITY REQUIREMENTS
FINISHED GOODS IN PROCESS RAW MATERIALS CAPACITY PLANNING
[*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*] [*]
-------- ---------------------------- ------------------ ------------------ ------------------
Mostly 75% Firm +/- 100%
Firm Few w/mix Vol. Mix/Vol.
Changes Charges Change
from
Schedule
* BUFFER STOCKS REQUIRED TO PROVIDE FOR VERY CLOSE-IN SCHEDULE CHANGES.
90
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
Exhibit E
WIRE HARNESSES RECALL; EXCESSIVE FAILURES;
PRODUCT LIABILITY; WARRANTY; AND DISCLAIMER
1. Hazardous Conditions & Recalls
1.1 If at any time the Supplier learns of any issue relating to a
potential safety hazard or unsafe condition involving Wire Harnesses, or is
advised by any governmental agency having jurisdiction that such a potential
safety hazard or unsafe condition may exist, the Supplier will immediately
advise GE by the most expeditious means of communication.
1.2 If the Supplier or GE reasonably and in good faith determines, or any
governmental agency having jurisdiction finds at any time that any Wire Harness
fails to comply with the Specifications or is not free from defects in
materials and manufacturing which in either case presents a hazardous or unsafe
condition causing significant risk of personal injury, making it advisable that
the affected Wire Harnesses be recalled or repaired, the Supplier will promptly
take appropriate corrective actions including those required by any applicable
consumer protection or similar law and the regulations thereunder.
Specifically, Supplier will, at its expense, timely locate and make all
necessary repairs or replacement to such affected Wire Harnesses to correct
their failure to comply with Specifications or to be free from defects in
materials and manufacturing. Additionally, Supplier will indemnify GE for any
Indemnifiable Losses it incurs as a result of Suppliers failure to comply with
its obligations under this Section 1.2. GE will cooperate with and assist
Supplier in connection with its obligations under this Section and will
indemnify Supplier for any Indemnifiable Losses Supplier incurs in connection
with any such recall when it is determined that the Wire Harnesses are in
compliance with the Specifications and are free from defects in materials and
manufacturing and do not present a hazardous or unsafe condition or that the
affected Wire Harnesses were manufactured prior to the Effective Date. The
Supplier will consult with GE before making any statements to the public or a
governmental agency concerning safety hazards affecting Wire Harnesses, except
where such consultation would interfere with the timely notification required
to be given under applicable law or regulation. The Parties recognize and agree
that Supplier's product recall obligations pursuant to Section 1 of this
Exhibit E are separate from and are not additional warranties.
1.3 So long as this Contract remains effective, the Supplier will monitor
and keep records of all safety-related filed incidents involving manufacturing
defects in Wire Harnesses manufactured or distributed by the Supplier, and will
regularly inform GE about those incidents and make those records available upon
GE's reasonable request.
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2. Excessive Failures.
2.1 If an Excessive Failure (as defined below) occurs, the Supplier
will, within thirty (30) days after GE submits its reimbursement claim,
reimburse GE for its reasonable direct expenses incurred in repairing or
replacing the affected Wire Harness (including reasonable expenses incurred by
GE for labor, materials, and travel time) in the quarter in which the Fault Call
Rate (as defined below) exceeds [*].
2.2 The Fault-Call Rate for a particular appliance model will be
calculated by computing the quality percentage equal to (x) the actual number of
service calls for a given quarter of manufacture divided by (y) the total number
of appliances installed for the same quarter of manufacture. An "Excessive
Failure" will have occurred in the case of any Wire Harness, if, during the
initial 12-month period of actual consumer usage or within twenty-four (24)
months from the date of manufacture, the Fault-Call Rate for a particular model
of Wire Harness manufactured within a particular production quarter exceeds [*]
percent regardless of the component or part involved.
2.3 For purposes of determining whether an Excessive Failure has
occurred with respect to a particular Wire Harness, only those service calls
requiring replacement or adjustment of Wire Harnesses because of manufacturing
defects will be considered. Specifically excluded will be repeat calls required
because necessary parts are not on the service truck, calls related to
installation or customer education, calls made to generate good will, and other
concessionaire types of calls. The Supplier will have no obligation for defects
in Wire Harnesses resulting from (i) unforeseeable misuse, abuse, negligence or
accident, or improper installation or service or service maintenance; (ii)
transportation of Wire Harnesses; (iii) improper storage of Wire Harnesses; or
(iv) improper design by GE.
2.4 In no event shall any fault-call be counted in a computation of an
Excessive Failure to the extent that such fault-call relates to Wire Harnesses
manufactured prior to the Effective Date.
3. Products Liability.
3.1 Indemnification.
(a) The Supplier agrees to indemnify, defend, and hold harmless GE
and its affiliates and their respective directors, officers, partners,
employees, agents, and representatives from and against any and all
Indemnifiable Losses, to the extent relating to, resulting from, or arising out
of a Third Party Claim caused or allegedly caused by (i) a failure of any Wire
Harness to comply with the Specifications or (ii) the Supplier's negligence in
manufacturing or otherwise handling any Wire Harnesses, or (iii) manufacturing
defects in any Wire Harnesses; provided that the Supplier shall in no event be
obligated to indemnify GE pursuant to this Section 3.1(a) in respect of any Wire
Harness manufactured prior to the Effective Date.
92
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
release from all liability in respect of such Third Party Claim. The
Indemnifying Party will notify the Indemnitee of the amount and circumstances of
any final settlement.
3.3 Reduction of Indemnifiable Loss. If the amount of any Indemnifiable
Loss, at any time subsequent to the making of an indemnity payment hereunder, is
reduced by or pursuant to a claim, recovery, settlement or payment by or against
any Third Party or insurer of a Third Party, the amount of such reduction, less
any costs, expenses, premiums or taxes incurred in connection therewith will
promptly be repaid by the Indemnitee to the Indemnifying Party. Upon making any
indemnity payment, the Indemnifying Party will, to the extent of such indemnity
payment, be subrogated to the rights of the Indemnitee against any Third Party
in respect of the Indemnifiable Loss. Indemnitee and the Indemnifying Party will
duly execute upon request all instruments reasonably necessary to evidence and
perfect the above-described subrogation rights.
3.4 Limitation of Product Liability. In no event will the Supplier's
liability for Third Party Claims, as described in this Section 3 of Exhibit E
and defined in Article 1 (ap), exceed [*] for the initial four years of the
Contract Period and exceed [*] for the balance of the Contract Period, per
incident or occurrence.
4. Warranty. The Supplier warrants that it will deliver free and clear
title to the Wire Harnesses. Furthermore, notwithstanding the expiration or
termination of this Contract, the Supplier warrants, for a period of twelve (12)
months from the time of delivery to GE of Wire Harnesses (the "Warranty
Period"), that all such Wire Harnesses will be free from defects in materials
and manufacturing and will comply with the Specifications in all material
respects. The expiration of the Warranty Period with respect to the Wire
Harnesses shall not terminate or otherwise affect Supplier's obligations
prescribed by Sections 1, 2 and 3 of this Exhibit E or elsewhere in this
Contract.
5. Limitations of Liability and Disclaimer.
5.1 LIMITATIONS OF LIABILITY. GE ACKNOWLEDGES AND AGREES THAT THE
PURCHASE PRICE FOR THE WIRE HARNESSES THAT THE SUPPLIER IS CHARGING HEREUNDER
DOES NOT INCLUDE ANY CONSIDERATION FOR ASSUMPTION BY THE SUPPLIER OF THE RISK OF
GE's CONSEQUENTIAL OR INCIDENTAL DAMAGES WITH RESPECT TO GE's OR ITS CUSTOMER'S
USE OF THE WIRE HARNESSES. ACCORDINGLY, GE AGREES THAT THE SUPPLIER WILL NOT BE
RESPONSIBLE TO GE FOR ANY LOSS-OF-PROFIT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING OUT OF THE USE OR RESALE OF THE WIRE HARNESSES (THE "INDIRECT COSTS"),
EVEN IF THE SUPPLIER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES;
PROVIDED, HOWEVER, THAT THE SUPPLIER SHALL BE RESPONSIBLE FOR SUCH INDIRECT
COSTS ARISING IN CONNECTION WITH (A) AN EXCESSIVE FAILURE TO THE EXTENT SET
FORTH IN SECTION 2 OF THIS EXHIBIT E, AND (B)
93
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
HAZARDOUS CONDITIONS AND RECALLS AS SET FORTH IN SECTION 1 OF EXHIBIT E.
5.2 DISCLAIMER. THE FOREGOING WARRANTIES AND REMEDIES ARE THE SOLE AND
EXCLUSIVE WARRANTIES AND REMEDIES GIVEN BY THE SUPPLIER IN CONNECTION WITH THIS
CONTRACT AND THE SALE OF THE WIRE HARNESSES HEREUNDER, EXPRESS OR IMPLIED, AND
THE SUPPLIER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO AGENT OF THE
SUPPLIER IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF THE
SUPPLIER SET FORTH HEREIN.
94
EXHIBIT F
SUPPLIER QUALITY STANDARDS
1. Certified Material/components
(a) Scope
GEA Companies requires that material/component variation be
minimized to the extent possible within industry standards. This
demonstrated process capability and tight process control
resulting in Supplier certified material/components permits GEA
Companies product lines to use parts from Suppliers without
conducting an incoming inspection. For this purpose Supplier
agrees to implement process and quality controls that will
provide certified material/components to GEA Companies.
(b) Procedure
Supplier agrees that all material/components to be delivered to
GEA Companies, will meet specified Incidental PPM Acceptance
Levels as described in Section 7 of this Contract and other
quality criteria as set forth in the drawing and PMQS, and will
implement plans to achieve PPM Goals.
Supplier agrees that all modified Existing Wire Harnesses,
Special Wire Harnesses and all New Wire Harnesses will be
mutually reviewed by Supplier and GEA in a formal technical
review to establish Certification quality goals requirements
(including completion dates). Certification of
material/components will be demonstrated through detailed process
capability analysis and exhibited process control.
Supplier agrees to assume the responsibility to demonstrate
conformance to these goals throughout the production cycle of the
material/component. GEA agrees that for material/components that
cannot be manufactured within the Certification criteria
requirement, a review between GEA Companies and Supplier will
take place to consider specification changes by the GEA Companies
and/or process modifications by the Supplier in order to
facilitate the Certification process.
2. PROCESS CAPABILITY AND CONTROL
(a) Scope
The Supplier agrees to PPM requirements, process capability
analysis and process control capability.
95
(b) Procedure
The Supplier agrees to review with GEA Companies its proposed
process flow (process map), process control techniques, and process
capability to consistently control processes within [*] of the
agreed upon specification tolerances.
The Supplier agrees to run pre-production qualifications to
demonstrate to GEA Companies that process capability is within
specification and meets agreed upon Cpk indices.
The Supplier agrees to possess, or to develop the necessary SPC
expertise to implement the process controls required by this
Contract.
The Supplier agrees to use commercially reasonable efforts to
ensure that the same degree of process capability is exercised with
custom subtier suppliers, excluding standard commercial parts
and/or materials, and that Supplier maintains the expertise to
evaluate same.
The Supplier will maintain and make available upon request to GEA
Companies, data supporting the Supplier's process capability and
continuing process control techniques.
The Supplier agrees to supply a certificate of compliance with each
shipment.
3. PURCHASED MATERIAL QUALITY STANDARDS
(a) Scope
Purchased Material Quality Standards (PMQS) are used to delineate
what characteristics are to be measured and where in the Supplier's
process they are measured on all materials/components supplied to
GEA Companies. The PMQS will also specify PPM Goals and Acceptance
levels, delineate the confirmation method utilized to insure
conformance to mutually agreed upon Critical to Quality (CTQ)
characteristics, and specify measurement tools, gauges, and test
equipment required to perform quality measurements. Since the
Supplier is most familiar with the processes, the Supplier agrees
to accept PMQS responsibility.
(b) Procedure
The Supplier agrees to produce material/components to the PMQS
requirements and to institute the necessary process controls and/or
inspections that will insure compliance.
96
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
PPM Goals and Acceptance Levels in the PMQS are defined as follows:
Incidental PPM for a part is determined by taking the product of
(i) the sum of the incoming and line rejections, for a specified
period of time, divided by the total receipts for the same period
of time and (ii) one (1) million.
Capability PPM for a process is established at a Goal Level of [*]
PPM. This reflects a process capability CPK of [*]. The Acceptance
Level will reflect current process capability. NOTE: In
establishing Acceptance Level PPM any processes that reflects a Cpk
of less than [*] must be reviewed with GEA for follow-up action
including timing for implementation.
Subjective Quality attributes that appear in the PMQS such as
appearance, odor & taste, etc. will be assigned individual PPM
acceptance levels by the using GEA sites on a case by case basis.
In developing the PMQS, the Supplier agrees to review and with GEA
Companies and Supplier's mutual concurrence, make appropriate
modifications to reflect the Supplier's process and GEA Companies
application considerations.
Supplier agrees that modified Existing Wire Harnesses, Special Wire
Harnesses and New Wire Harnesses PMQ's will be developed first and
existing Wire Harnesses material/component PMQ's secondly, and in
every case the preliminary PMQS will be transmitted to GEA
Companies for approval prior to implementation.
Supplier agrees that PMQS files will contain the latest revision
of the material/component drawings, material specifications,
process maps, and relevant process capability studies.
4. QUALITY CONFIRMATION
(a) Scope
The Supplier agrees to be totally responsible for
material/component quality in its manufacturing processes.
(b) Procedure
The Supplier agrees to have resources and facilities, either inside
or outside of the Supplier's facilities, to confirm Contract and
Specifications compliance and insure material/component quality.
97
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
The Supplier will utilize mutually agreed upon procedures and
material specifications. The Supplier will provide GEA with the data
confirming Contract compliance upon GEA Companies' request. Supplier
will implement process controls and/or Quality checkpoints in the
Material/Component manufacturing process that will provide the PPM
Quality status of the outgoing Material Components. (SPC techniques
such as control charts, mini-capability studies, and attribute charts
may be necessary to measure compliance to PPM goals.)
5. QUALITY RECORDS AND RETENTION
(a) Scope
GEA, having delegated first piece inspection and Quality Confirmation
routines to the Supplier, must nevertheless, continue to insure the
manufacture and receipt of quality material to be utilized in GEA
Companies' product. Therefore, the Supplier agrees in its performance
of process and quality control to record, maintain and make available
select quality data.
(b) Procedure
GEA Companies or their designee will conduct periodic Supplier Site
Audits, at a minimum of once per year, of the Supplier's quality
records, and manufacturing processes.
The Supplier agrees to maintain, at the Suppliers' facilities, all
quality records for three (3) years, unless otherwise specified
hereafter.
The Supplier agrees to maintain the latest approved first piece
inspection data, drawing, and part until part is obsolete.
The Supplier agrees to maintain part capability studies for the
duration of the production run.
The Supplier, whose processes have been certified and are supplying
certified material/components to GEA Companies, must collect and
retain process capability studies and statistical process control
documentation that demonstrate PPM conformance. This documentation
should be available for review by GEA Companies on a quarterly basis
upon request for the duration of the production run.
The Supplier agrees to prepare Statistical certificates of compliance
on a lot by lot basis if required by GEA Companies. Supplier agrees
to notify GEA Companies of ANY process changes that are being
considered prior to
98
implementation. All mutually agreed upon process changes must be
recorded and maintained with the material/component production
records.
6. ISO - 9002 CERTIFICATION
It is the GEA Companies' intention to be ISO certified by December 31,
1995. The Supplier agrees to support this effort and will take the
necessary steps to become ISO-9002 certified by the above date.
99
EXHIBIT G
PROPRIETARY RIGHTS
1. Trademarks.
(a) Wire Harnesses shall bear only such trade names and/or trademarks as
are specified in writing by GE to the Supplier. Any rights which may accrue from
such trade name/trademark usage shall inure to the sole benefit of GE or GE's
customer if the designated trademark and/or trade name is owned (or licensed) by
GE's customer.
(b) Supplier agrees not to use any of GE's (or GE's customers') trademarks
or trade names on or in connection with Wire Harnesses, except as permitted
under this Contract, and not to sell or dispose of any Wire Harnesses bearing
any of GE's (or GE's customers') trademarks or trade names to any person or
entity other than GE, unless expressly authorized to do so in writing by GE.
2. Patent Indemnification. (a) GE agrees to indemnify and hold Supplier
harmless against any and all claims that Wire Harnesses purchased pursuant to
this Agreement constitute an infringement of any third party patent, trade
secret or other proprietary right in the event that such claim is based upon or
arises as a result of the incorporation in the Wire Harnesses of designs
provided by GE or as a result of Wire Harnesses being manufactured in accordance
with the Specifications. GE shall assume the defense of any suit, action or
proceeding based on any such claim of infringement brought against Supplier and
GE shall pay any Indemnificable Losses damages assessed against or otherwise
payable by Supplier in any such suit, action or proceeding as a result of the
disposition thereof, provided Supplier on receiving notice thereof, promptly
notifies GE of such claim or of the commencement of any such suit, action or
proceeding or threats thereof, and affords GE the opportunity, in its sole and
absolute discretion, to determine the manner in which any such claim, suit,
action or proceeding shall be handled or otherwise disposed of. Supplier shall
give GE the cooperation GE requires at GE's expense for all reasonable and
direct costs and expenses incurred by Supplier. Notwithstanding the foregoing,
Supplier may be represented in any such claim, suit, action or proceeding by its
own counsel, at its own expense, provided, however, that Supplier shall not
consent to any judgment or decree in any such claim, suit, action or proceeding
or pay or agree to pay any sum of money or agree to do any other act in
compromise of any such claim of a third party without first obtaining GE's
consent thereto in writing. GE's obligation hereunder shall in no event apply to
any claims based upon any goods sold by Supplier to any third party.
(b) Supplier agrees to similarly indemnify and hold GE harmless against any
and all claims that Wire Harnesses purchased to this Agreement constitute an
100
infringement of any third party patent, trade secret or other proprietary right
to the extent that such claim is based upon or arises as a result of the
incorporation in the Wire Harnesses, of designs provided by Supplier.
3. Protection of Confidential Information. (a) The parties hereto
acknowledge and agree that the terms of this Contract are confidential to each
of them and unless required by law, shall not be disclosed to third parties
without the specific prior written approval of both parties. The parties hereto
acknowledge and agree that in the course of performing pursuant to the
Contract, each may have access to Confidential Information of the other party.
Each party agrees that it will maintain any Confidential Information of the
other party received during the term of this Agreement in confidence using the
same degree of care and discretion to avoid disclosure, publication or
dissemination of such Confidential Information to any third party as it uses
with its own similar information that it does not wish to disclose, publish or
disseminate, for a period of five (5) years from the date of initial receipt of
such Confidential Information, and during such period will only use such
Confidential Information for purpose of performing this Contract.
(b) The parties shall consult with each other prior to issuing public
announcements or other publicity in connection with the transactions
contemplated herein. In the event that any such announcements or other
publicity are hereafter considered, whether required by law or otherwise, the
parties shall consult with each other and shall use their respective best
efforts to keep all sensitive business information regarding such transactions
confidential.
(c) Each party's obligations set forth in this Section 3 shall survive
termination of this Contract for any reason.
101
EXHIBIT H
COPPER RE-XXXX MECHANISM
GE will purchase copper from supplier X in quantities needed to support
manufacture of Wire Harnesses by Supplier for sale to GE. This purchased copper
will be shipped by supplier X to Supplier's specified wire mill. Copper will be
sold by GE at the Rebill Price (defined below) and title will transfer together
with risk of loss to Supplier f.o.b. supplier X's dock. Thirty (30) days from
the date of sale by GE to Supplier the amount due from Supplier will be netted
against payable due Supplier from GE. GE will be responsible for freight charges
on copper shipped by supplier X to Supplier's specified wire mill.
Copper shipped to Supplier under this arrangement will be used solely for
Wire Harnesses manufactured by Supplier for sale to GE. Supplier will have sole
responsibility to resolve disputes with supplier X related to shipments of
copper such as short-shipments or defective material shipments. The "Rebill
Price" for copper will be [*] per pound and may be adjusted in GE's discretion.
102
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
EXHIBIT I
CURRENT PPM RATE
MANUFACTURING SITE CURRENT PPM RATE BY
MANUFACTURING SITE
Bloomington, Indiana [*]
Appliance Xxxx Xxxxxxxx 0
Xxxxxxxxxx, Xxxxxxxx [*]
Appliance Xxxx Xxxxxxxx 0
Xxxxxxxxxx, Xxxxxxxx [*]
Appliance Xxxx Xxxxxxxx 0
Xxxxxxxxxx, Xxxxxxxx [*]
Appliance Xxxx Xxxxxxxx 0/0
Xxxxxxxxxx, Xxxxxxxx [*]
Xxxxx Corporation
Lafayette, Georgia [*]
AGGREGATE CURRENT PPM RATE: [*]
103
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
EXHIBIT J
LISTING OF SAME MAJOR APPLIANCE PRODUCT LINES SOLD BY XXXX OR CAMCO
IN OR FOR THE UNITED STATES MARKET IN CALENDAR 1994.
CAMCO
ITEM NUMBER OF UNITS - 1994 ESTIMATE
---- -------------------------------
6 Cu. Ft. Dryers [*]
10 Cu. Ft. Refrigerators [*]
Dishwashers [*]
XXXX
ITEM NUMBER OF UNITS - 1994 ESTIMATE
---- -------------------------------
Gas Ranges [*]
Compact/12 Cu. Ft. Refrigerators [*]
104
* Filed under an application for confidential treatment
with the Securities and Exchange Commission.
