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EXHIBIT 10.14(b)
REBATE AND SUPPLY AGREEMENT
THIS REBATE AND SUPPLY AGREEMENT (this "Agreement") is entered into
this 12th day of May, 1997 by and among BARRIER FILMS LTD. - NEW YORK and
BARRIER FILMS CORPORATION (collectively, "Barrier"), WORLD CLASS FILM CORP.,
including its subsidiaries and affiliates whether currently in existence or
hereafter acquired ("World Class"), and OUTLOOK GROUP CORP., solely on behalf
of its subsidiary, Outlook Packaging, Inc. ("OGC").
RECITALS
WHEREAS, OGC is selling all of the 91,100 issued and outstanding
shares of Common Stock of Barrier, pursuant to the terms of that certain Stock
Purchase Agreement dated as of May 12, 1997, by and between the Buyer (as
defined therein) and OGC (the "Purchase Agreement");
WHEREAS, the execution and delivery of this Agreement are conditions
precedent to the parties' execution and delivery of the Purchase Agreement and
the consummation of the transactions contemplated hereby;
WHEREAS, this Agreement is intended by the parties to facilitate
payment by the Buyers of the Secured Promissory Note (as defined in the
Purchase Agreement);
WHEREAS, the parties acknowledge that a vital aspect of the
transaction contemplated by the Purchase Agreement is this Agreement, and it is
the intention of the parties that a significant portion of the purchase price
(represented by the Secured Promissory Note) will be paid through the payment
of credits under this Agreement;
WHEREAS, Barrier and World Class desire to supply monolayer and
co-extruded films to OGC, and OGC desires to purchase monolayer and co-
extruded films from Barrier and World Class, pursuant to the terms and subject
to the conditions herein stated;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and for other valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Supply. During the term of this Agreement, each of Barrier
and World Class (individually a "Seller" and collectively the "Sellers") agrees
to produce and sell to OGC monolayer and co-extruded films (including low
density, high density, polyethylene, nylon, polyester, polypropylene,
bi-oriented polypropylene and other packaging and laminating films) (the
"Films") as ordered by OGC from time to time, subject to the terms and
conditions set forth in this Agreement. The obligations of OGC set forth in
Section 4 hereof (i.e., the quantity order obligations) shall only apply to the
monolayer and co-extruded polyethylene Film types (the "Designated Films") and
not to any other types of Films, although the credits set forth in Section 6(d)
below apply to all Film types.
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2. Information to be Provided. As soon as practicable following
the date hereof, OGC shall provide to the Sellers a list of its current
purchases of Films and the price ranges, specifications and other material
terms applicable to such purchases. OGC shall also provide to the Sellers
physical samples for the Films and its specifications relating thereto, and its
estimated Film requirements over the next six months (and each succeeding
six-month period) which information is subject to adjustment from time to time.
OGC will not be responsible for any inaccuracies in its estimates of
requirements, except for gross negligence in significantly underestimating such
requirements. OGC will only be responsible for actual orders of Films which
may or may not be consistent with its estimated requirements.
3. Product Qualification. OGC shall afford the Sellers the
opportunity to qualify to manufacture and sell all Films ordered by OGC as
follows:
(a) First, the Sellers must inform OGC in writing as to
the Films they intend to offer to manufacture and sell to OGC, together with
the prices to be charged to OGC for such Films, delivery terms, specifications
and other material conditions. OGC shall then promptly determine whether the
price and other terms and conditions are at least as favorable (equal) as those
offered by OGC's and other available suppliers. If the Sellers fail to inform
OGC in writing as to any particular Film they intend to offer to manufacture
and sell to OGC within 30 days following their receipt of the information and
physical sample with respect to such Films as set forth in Section 2 above,
then OGC shall have no obligation to allow the Sellers to qualify such Film
under this Section 3 or to purchase any specified quantities thereof as set
forth in Section 4 below. In the event that the Sellers desire to, and are
subsequently able to, offer and manufacture any Films at a later date, then OGC
shall give the Sellers an opportunity at a mutually convenient time or times
during the term of this Agreement to qualify such Films pursuant to this
Section 3.
(b) Second, once the parties agree that the price and
other terms are at least as favorable as those offered by OGC's and other
available suppliers and further agree on the price and other terms for the
Films to be supplied by the Sellers to OGC, the Sellers shall produce a sample
order for the Films, and OGC shall inspect such order for competitive quality
and compliance with OGC's specifications. As used herein, the term "Acceptable
Quality" shall mean Films demonstrating quality competitiveness and compliance
with industry norms, applicable legal requirements and OGC's specifications
(within reasonably acceptable tolerances and variations as are customary and
normal in the industry). If the sample order demonstrates Acceptable Quality,
then the parties shall adhere to the supply levels set forth in Section 4(a)
below.
4. Supply Levels.
(a) After the Sellers have qualified to sell a particular
Designated Film to OGC as set forth in Section 3 above, OGC shall afford the
Sellers the opportunity to manufacture and sell, and OGC shall order, the
Designated Film, as follows:
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(i) First, OGC shall order a "minimum" sample
quantity of the Designated Film to be manufactured and sold by
the Sellers ("Minimum Quantity"), which order shall specify
the agreed upon price, quantity, delivery, specifications and
other terms. Upon receipt of such Minimum Quantity of the
Designated Film, OGC shall inspect the Designated Film to
determine whether the shipment complies with the terms of the
Minimum Quantity order and demonstrates Acceptable Quality.
If the shipment does not comply with the terms of the Minimum
Quantity order or demonstrate Acceptable Quality, then the
Sellers shall repeat this level.
(ii) Second, if the Sellers' shipment of the
Minimum Quantity of the Designated Film complies with the
terms of the order and demonstrates Acceptable Quality as set
forth in Section 4(a)(i) above, OGC shall order production
quantity (at least 50% of its aggregate orders for the
Designated Film) of the Designated Film ("Production
Quantity"), which order shall specify the agreed upon price,
quantity, delivery, specifications and other terms. Upon
receipt of each shipment of the Designated Film subject to the
Production Quantity order, OGC shall inspect the Designated
Film to determine whether the shipment complies with the terms
of the order and demonstrates Acceptable Quality. If the
shipment does not comply in all material respects with the
Production Quantity order or demonstrate Acceptable Quality,
OGC shall not be required to continue to order such Designated
Film under this subsection (ii) and the Sellers shall revert
to Section 4(a)(i) with respect to such Film.
(iii) Third, if the Sellers' shipments of the
Production Quantity of the Designated Film complies with the
terms of the order as set forth in Section 4(a)(ii) above and
demonstrates Acceptable Quality, OGC shall order full
production quantity (75% of its aggregate orders for the
Designated Film, or more at the discretion of OGC) of the
Designated Film ("Full Quantity"), which order shall specify
the agreed upon price, quantity, delivery, specifications and
other terms. Upon receipt of each shipment of the Film
subject to the Full Quantity order, OGC shall inspect the
Designated Film to determine whether the shipment complies
with the terms of the order and demonstrates Acceptable
Quality. If the shipment does not comply in all material
respects with the Full Quantity order or demonstrate
Acceptable Quality, OGC shall not be required to continue to
order such Designated Film under this subsection (iii) and the
Sellers shall revert to Section 4(a)(ii) with respect to such
Designated Film.
(b) If the Sellers revert back to or repeat Section
4(a)(i) above three times with respect to a particular Designated Film after
being at higher levels then OGC shall have the right not to purchase that
Designated Film from the Sellers.
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(c) In no event shall OGC be required to order from the
Sellers more than 75% of its aggregate orders for any Designated Film.
However, OGC may elect to order from the Sellers more than 75% of its aggregate
orders for the Designated Film and any quantity of other Film, in which case
the principal amount on the Secured Promissory Note may be repaid sooner than
scheduled because the credits set forth in Section 6(d) hereof are due and
payable regardless of whether they exceed the principal payments then due on
the Secured Promissory Note, and all such credits paid will be applied against
the outstanding principal balance on such Note.
(d) If, despite the Sellers' satisfaction of the
conditions of Section 4(a)(iii) above, OGC elects to buy less than 75% of its
estimated needs for the Designated Film in a given year, the "unearned" credit
provision set forth in Section 7 shall apply, although OGC shall be entitled to
make up any such deficiency in succeeding years.
(e) The Sellers shall have the right to refuse any orders
for the Films, in which case OGC shall not be obligated to order any specific
quantities of such Films and no adjustment or "unearned" credit will be made to
the Secured Promissory Note.
5. Orders. All orders of Films by OGC to the Sellers shall be
made pursuant to written purchase orders delivered by OGC to the Sellers
stating the price, quantity, delivery and other material terms and OGC's
specifications (if any), and shall be subject to OGC's standard terms and
conditions, including those stated on OGC's purchase orders.
6. Prices, Credits and Other Terms.
(a) The base prices for the Films to be charged by the
Sellers to OGC during the term of this Agreement shall be at least as favorable
as prices being charged by current suppliers of OGC and offered by the Sellers
to its other customers, subject to quality, quantity and delivery
specifications which may affect price. Such prices shall then give effect to
the credits outlined below. Prices agreed upon by OGC and the Sellers shall be
firm for a period of at least one year, subject to an appropriate reference
rate adjustment (such as market prices for applicable resins) made periodically
from time to time during the term hereof, as agreed to by the parties following
written notice of such adjustment provided by the Sellers at least 30 days
prior to the effective date of such adjustment. Notwithstanding the above,
prices may also be renegotiated once during each year to account for market and
other economic changes. OGC shall be entitled to "favored nation" treatment
with respect to prices for the Films, and prices charged to OGC shall
automatically be reduced to reflect the lowest amount then charged for such
Films by the Sellers to any of its other customers based on Film type and
volume. Unless otherwise agreed to by the parties, the prices for the Films
shall be F.O.B. OGC's designated destination(s) and include all packing,
shipping and delivery costs, and payment terms shall be net 30 days from date
of receipt of the delivered Films.
(b) The Sellers shall fill OGC's regular orders for the
Films within normal lead times which are 14 business days. The Sellers shall
fill special orders for co-extruded
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Films within 30 to 45 day lead times. Variations from such lead times and
other delivery schedules will cause OGC not to have any obligation to purchase
the Films subject to such orders and cause the Sellers to revert to a lower
level as provided in Section 4(a) above with respect to future orders of the
Films.
(c) OGC may from time to time order Films from the
Sellers on a consignment basis, in which case the Sellers shall deliver
specified quantities of Films to a warehouse or other location designated by
OGC, and OGC shall pay invoices for such Films as they are used by OGC. OGC
shall also be responsible for paying for any Films that have been delivered but
not used by OGC after 75 days. In no event will the Sellers delivery any
quantities of Films which exceed 75 days' expected usage pursuant to OGC's
consignment orders.
(d) During the term of this Agreement, OGC shall be
entitled to the following credits against the prices of the Films sold by the
Sellers to OGC: $0.10 per pound for every pound of monolayer film sold to OGC;
and $0.25 per pound for every pound of co-extruded film sold to OGC. Credits
for other Film types will be negotiated in good faith by the parties. Such
credits shall not be reflected on invoices for the Films delivered to OGC.
However, at the end of each annual period in which a scheduled principal
payment is to be made on the Secured Promissory Note, an accounting of the
total credits then earned by OGC shall be presented to OGC for approval. The
agreed upon credits for such period shall then be paid by the Sellers to OGC,
and the amount of such payment shall be applied to reduce the principal
payments otherwise then due on the Secured Promissory Note and affect the
interest rates applicable thereto in the manner provided in the Note. Credits
for any period shall be paid by the Sellers to OGC notwithstanding the fact
that they may exceed the principal amount then due on the Secured Promissory
Note.
(e) The Sellers shall maintain consistent product quality
and manufacture the Films in accordance with their quality assurance and
manufacturing standards, as well as OGC's specifications as stated or
referenced on the relevant purchase order. OGC shall have the right to reject
any quantity of Films that does not meet such quality standards and
specifications. The Sellers shall warrant to OGC that all Films sold to OGC
shall be free from defects in materials and workmanship, shall comply with
OGC's specifications and shall comply with all applicable laws. OGC shall
promptly notify the Sellers of any defective or rejected Films in accordance
with the usual customs and usage in the industry. Thereupon, OGC shall
receive, at its option, either a full refund and credit for any such rejected
or defective Films or a prompt shipment of replacement Films at no additional
cost to OGC. OGC shall return, at the Sellers' cost, all rejected or defective
Films.
7. Unearned Credit. OGC may elect not to purchase Films from the
Sellers in accordance with Sections 2, 3 or 4 above. This election shall not
constitute a breach hereof. However, if OGC makes such election and does not
afford the Sellers the opportunity to qualify and supply Designated Films in
accordance with such Sections, OGC shall notify the Sellers of the amount and
type of Designated Film which it has elected not
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to purchase from the Sellers during each year of this Agreement. Thereupon,
the Sellers shall calculate the amount of the credit (under Section 6(d)
hereof) that would have been earned by OGC if it had purchased such amount of
the Designated Film from the Sellers, and such aggregate "unearned" credits
shall be applied to reduce the principal amount on the Secured Promissory Note
otherwise due during such year and no interest shall be charged on such
reduction of the principal amount. However, OGC shall have the right to earn
or re-qualify for such "unearned" credit and restore its right to payment of
such reduction of the principal amount in any succeeding year of this Agreement
in the following manner: If, during a succeeding year, OGC orders quantities of
any Designated Film in excess of its applicable order quantity obligations
under Section 4(a) above for such Film (the amount of such excess being
referred to as the "Excess Order Amount"), OGC will receive payment for the
accrued credits on all such orders (as provided in Section 6(d) above), but the
principal amount on the Secured Promissory Note would only be reduced by the
amount of such payment less the amount of the paid credit attributable to the
Excess Order Amount up to the amount of the previously "unearned" credit. In
addition, the credits set forth in Section 6(d) above shall continue to apply
and be paid after the term of this Agreement until OGC has received an amount
equal to 50% of the value of the "unearned" credit in effect at the end of the
term hereof.
This provision does not apply to an election made by OGC not to
purchase Films as a result of a breach of this Agreement by the Sellers or
termination of this Agreement by OGC under Section 9 hereof. It also does not
apply to non-Designated Films (since no quantity obligation is imposed on OGC
for such Films) or elections made not to purchase Designated Films from the
Sellers in quantities in excess of those otherwise applicable under Section
4(a) or 4(b) hereof.
8. Term. Except as otherwise terminated pursuant to Section 9
below, the term of this Agreement shall be for a period of three years
commencing on the date hereof. However, if the Secured Promissory Note is
repaid in full prior to the expiration of this Agreement, the Agreement shall
continue in full force and effect, except that the credits set forth in Section
6(d) hereof shall terminate.
9. Termination.
(a) Any party may terminate this Agreement upon written
notice to the other parties (i) if any other party breaches this Agreement or
otherwise fails to perform any of its material obligations hereunder, and such
breach or failure (if curable) continues for a period of 30 days after written
notice of such breach or failure is given to such other parties; (ii) if such
other party commences or has commenced against it a proceeding under any
bankruptcy or similar law; has a receiver appointed for it or for any of its
properties; becomes insolvent or unable to pay its debts as they mature or
ceases to pay its debts as they mature in the ordinary course of business; or
discontinues its business, is liquidated or is dissolved; or (iii) as otherwise
provided herein. No termination of this Agreement shall release any party from
liability or obligation which at the time of such termination has already
accrued or which thereafter may accrue in respect of any act or omission prior
to
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such termination, or affect in any way the survival of any right, duty or
obligation of a party which, as is expressly stated elsewhere herein, is to
survive the expiration or termination of this Agreement. Each party expressly
agrees that a party which terminates this Agreement in accordance with this
Section 9 shall not be liable to the other party or parties for compensation,
loss or damage of any nature resulting from such termination, except as
provided in Section 9(b) below.
(b) If the defaulting party as described in Section 9(a)
above is OGC and as a result OGC does not purchase Films under this Agreement
and the Buyers are unable to pay amounts due under the Secured Promissory Note,
then OGC shall forfeit, as and for liquidated damages (which the parties
represent to be fair and reasonable), 50% of the principal amount then
outstanding on the Secured Promissory Note, and the remaining principal amount
on such Note shall thereupon cease to earn interest. If the defaulting party
as described in Section 9(a) above is any Seller, then OGC shall not be
required to purchase any Films from the Seller, this Agreement may be
terminated and the Secured Promissory Note and all other obligations under the
Purchase Agreement shall remain in full force and effect.
10. Force Majeure. If the performance of this Agreement or any
obligation hereunder is prevented, restricted or interfered with by an act of
God, war, riots, sabotage, embargo, explosion, flood, drought, fire,
earthquake, strike or labor dispute, inability to procure raw materials, power
or supplies, a law, order, rule, regulation, proclamation or other act or
omission of a governmental authority or otherwise due to causes beyond a
party's control (an "Event of Force Majeure"); the parties so affected upon
giving notice to the other party shall be excused from such performance to the
extent of such preventions, restriction or interference (and if the Event of
Force Majeure so affects the Sellers, interest on the Secured Promissory Note
shall temporarily cease to accrue, and the timing of the scheduled payments
shall be delayed, while the Event of Force Majeure is in effect), provided that
the parties so affected shall use all reasonable efforts under the
circumstances to avoid or remove such cause of nonperformance and shall
continue performance hereunder with the utmost dispatch whenever such causes
are removed. An Event of Force Majeure shall not subject a party to any
liability to the other party.
11. Independent Contractors. The parties affirm that this
Agreement establishes only a contractual relationship among independent
parties, and nothing herein shall be construed to constitute any party as an
employee, partner, joint venturer, agent or legal representative of any other
party for any purpose. No party shall have the authority to act for or to
obligate any other party in any way.
12. Confidentiality. All materials and information relating to
the manufacturer of the Films and all other confidential and/or proprietary
information which is disclosed or made available by a party (the "disclosing
party") to any other party (the "receiving party") shall be considered
confidential, shall be retained in strict confidence by the receiving party,
shall not be disclosed by the receiving party to any third person or used by
the receiving party except to the extent necessary in connection with the
manufacture, sale and use of the
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Films as contemplated by this Agreement. Such confidential information does
not include information which the disclosing party authorizes the receiving
party to disclose, is known by the receiving party prior to the disclosure by
the disclosing party, is disclosed to the receiving party by a third party
without any obligation of confidentiality to the disclosing party, is publicly
available at the time of disclosure other than as a result of a breach by the
receiving party of its obligation of confidentiality set forth herein, or is
required to be disclosed in any legal proceeding. Upon termination of this
Agreement, all tangible confidential information shall be immediately returned
to the respective disclosing party. The obligations contained in this Section
12 shall survive the termination or expiration of this Agreement.
13. Indemnification.
(a) Each Seller shall indemnify and hold harmless OGC and
its officers, directors, employees, agents, shareholders and affiliates from
and against any and all claims, losses, damages, costs and expenses relating to
or arising out of any breach by a Seller of any provision of this Agreement,
any wrongful, intentional, reckless or grossly negligent act or omission of a
Seller, any allegation that the Films (or the related technology, design,
patents or other intellectual property rights) infringes on the rights of any
third party, or any defective Films.
(b) OGC shall indemnify and hold harmless each Seller and
its officers, directors, employees, agents, shareholders and affiliates from
and against any and all claims, losses, damages, costs and expenses relating to
or arising out of any breach by OGC of any provision of this Agreement or any
wrongful, intentional, reckless or grossly negligent act or omission of OGC
(which shall include OGC's providing improper specification information or the
sale or use by OGC of the Films in a non-conforming manner).
14. Notices. Each notice, request, demand or other communication
("Notice") by any party to the other parties pursuant to this Agreement shall
be writing, and, except for purchase orders, order acknowledgements, and
routine documentation and correspondence, shall be personally delivered or sent
by U.S. certified or registered mail, return receipt requested, postage
prepaid, or by commercial courier, charges prepaid, or by facsimile
transmission (but each Notice sent by facsimile transmission shall be confirmed
by sending the original thereof to the other parties by U.S. mail or commercial
courier as provided herein), addressed to the address of the receiving parties
set forth below or to such other address as such parties shall have
communicated to the other party in accordance with this Section. Any Notice
hereunder shall be deemed to have been given and received when personally
delivered, on the date when sent by facsimile or on the third business day
following the date when sent by mail or commercial courier.
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If to OGC: Outlook Group Corp.
Attn: President
0000 Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
FAX: (000) 000-0000
with a copy to: Xxxxxxx & Xxxxx
Attn: Xxxxxxx X. Xxxxxxx, Esq.
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
FAX: (000) 000-0000
If to any Seller: Barrier Films Corporation
Attn: President
00 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
FAX: (000) 000-0000
with a copy to: Xxxxxx Xxxx Xxxxx, Esq.
000 Xxxx Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx Xxxxxxx, XX 00000
FAX: (000) 000-0000
15. Miscellaneous.
(a) No party may assign this Agreement or any of its
rights or obligations hereunder (whether voluntarily or by operation of law)
without the prior written consent of the other parties, and any such attempt at
assignment shall be ineffective.
(b) If any provision of this Agreement is held to be
illegal or unenforceable for any reason, such determination shall not effect
the remainder of this Agreement and such remainder shall remain in full force
and effect.
(c) This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York without regard to
principles of conflict of laws.
(d) This Agreement may not be amended or modified except
in writing signed by all of the parties. This Agreement, together with the
Purchase Agreement, the Guaranty, the Security Agreement, the Secured
Promissory Note, the Stock Pledge Agreement and the agreements and documents
referred to herein and therein, constitute the entire understanding of the
parties regarding the subject matter hereof, and supersede all prior or
contemporaneous agreements, understandings and discussions regarding such
subject matter.
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(e) This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(f) Each party seeing to enforce this Agreement which
prevails in any court proceeding regarding such enforcement shall be entitled
to reimbursement from the other party of its court costs and reasonable fees of
counsel and experts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first written above.
BARRIER FILMS CORPORATION
By:
___________________________________
Title:
________________________________
WORLD CLASS FILM CORP.
By:
___________________________________
Title:
________________________________
OUTLOOK GROUP CORP.
By:
___________________________________
Title:
________________________________
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