VOGHERA PET PREFORM SUPPLY AND LEASE OF RELATED ASSETS AGREEMENT
Exhibit 10.11
Execution Copy
THIS IS A VOGHERA PET PREFORM SUPPLY AND LEASE OF RELATED ASSETS AGREEMENT (the
“Agreement”), dated as of November 12, 2002, by and among Crown Cork Italy S.p.A., an indirect subsidiary of Crown (“Supplier”) and Constar Plastics of Italy S.r.l., an indirect subsidiary of Constar
(“Purchaser”).
Background
Supplier will supply directly to the Constar Customers on Purchaser’s behalf and Purchaser will purchase from Supplier on the terms and conditions set forth herein,
PET preforms presently manufactured at Supplier’s facility in Voghera, Italy (the “Voghera Facility”).
Terms
NOW, THEREFORE, in consideration of the mutual covenants herein and intending to be
legally bound hereby, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Definitions. Capitalized terms not defined in this Agreement shall have the meanings ascribed to them in the Corporate Agreement, dated as of the date hereof, between
Crown and Constar. As used in this Agreement, the following terms shall have the respective meanings set forth below:
1.1.1. “AAA” has the meaning set forth in Section 7.4.
1.1.2. “Affiliate” of any Person means any Person, directly or indirectly, controlling, controlled by or under common control with such Person.
1.1.3. “Agreement” has the meaning set forth in the preamble to the Agreement.
1.1.4. “Bankruptcy Event” means with respect to any
party, as applicable, (a) the making by such party of any assignment for the benefit of creditors of all or substantially all of its assets or the admission by such party in writing of inability to pay all or substantially all of its debts as they
become due; (b) the adjudication of such party as bankrupt or insolvent or the filing by such party of a petition or application to any tribunal for the appointment of a trustee or receiver for such party or any substantial part of the assets of
such party; or (c) the
commencement of any voluntary or involuntary bankruptcy proceedings (and, with respect to involuntary bankruptcy proceedings, the failure to be discharged within 60 days), reorganization
proceedings or similar proceeding with respect to such party or the entry of an order appointing a trustee or receiver or approving a petition in any such proceeding.
1.1.5. “Business Day” shall mean any day other than a Saturday, a Sunday or a day on which banks in Rome, Italy are
authorized or obligated by law or executive order to not open or remain closed.
1.1.6. “Constar” means Constar International Inc., a Delaware corporation.
1.1.7. “Constar Customers” has the meaning set forth in Section 2.1.
1.1.8. “Control,” “controlled by” and “under common control with”, as applied to
any Person, means the possession, directly or indirectly, of the power to direct the vote of a majority of the votes that may be cast in the election of directors (or other Persons acting in similar capacities) of such Person or otherwise to direct
or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or by contract or otherwise.
1.1.9. “Crown” means Crown Cork & Seal Company, Inc., a Pennsylvania corporation.
1.1.10. “Force Majeure Event” has the meaning set forth in Section 6.4.
1.1.11. “Full Industrial Cost” means the sum of direct
costs plus a reasonable share of overhead costs.
1.1.12. “Initial
Term” has the meaning set forth in Section 6.1.
1.1.13. “Lease” has the meaning set forth in Section 5.1.
1.1.14. “Margin” means the difference between total sales to Constar Customers less the cost paid for related PET Preforms to Supplier and less the depreciation on the assets sold by the
Supplier to the Purchaser.
1.1.15. “Person” means an
individual, a corporation, a partnership, an association, a governmental entity, a trust or other entity or organization.
1.1.16. “PET” shall mean polyethylene terephthalate.
1.1.17. “PET Preforms” means all existing types of PET preforms manufactured at the Voghera Facility as of the Initial Public Offering Date, which types of PET preforms are set forth,
for the avoidance of doubt, on Schedule A hereto (the “Existing PET Preforms”). PET Preforms shall also include any other PET preforms that are identified and mutually agreed upon by Supplier and Purchaser after the Initial
Public Offering Date from time to time (the “New PET Preforms”).
1.1.18. “Production Request” has the meaning set forth in Section 2.1.
1.1.19. “Purchaser” has the meaning set forth in the preamble to the Agreement.
1.1.20. “Release Request” has the meaning set forth in Section 2.1.
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1.1.21. “Supplier” has
the meaning set forth in the Preamble to the Agreement.
1.1.22. “Term” has the meaning set forth in Section 6.1.
1.1.23. “Transfer Date” has the meaning set forth in Section 5.1.
1.1.24. “Voghera Assets” means those assets set forth in Schedule C.
1.1.25. “Voghera Facility” has the meaning set forth in the Background section of this Agreement.
ARTICLE II
PURCHASE
OF REQUIREMENTS
2.1. Purchase Requirements.
(a) Subject to the other provisions of this Article II, Purchaser agrees to purchase from Supplier
100% of Purchaser’s requirements for PET Preforms for Purchaser’s customers specified on Schedule B hereto (the “Constar Customers”).
(b) At least 31 days prior to the beginning of each year, Purchaser shall provide Supplier with a non-binding forecast for the PET Preforms that it will purchase
from Supplier during such year, which shall represent a good faith estimate of Purchaser’s requirements for PET Preforms for the Constar Customers. On or before the 15th day of each month, Purchaser shall submit a firm order for production during the following month (a “Production Request”), which
shall not exceed 20 million PET Preforms, and a non-binding forecast for the following two months, which forecast shall represent a good faith estimate of Purchaser’s requirements for such two months. Purchaser shall be deemed to purchase, and
shall be responsible for payment to Supplier for, any PET Preforms manufactured by Supplier in response to a Production Request, regardless of whether Purchaser submits a Release Request for such PET Preforms. In addition, to maximize utilization of
the Voghera Assets, Supplier may produce PET Preforms based upon Purchaser’s non-binding forecasts. If Purchaser provides its written consent to such production, Purchaser shall be deemed to purchase, and shall be responsible for payment to
Supplier for, any PET Preforms manufactured by Supplier in response to such forecast, regardless of whether Purchaser submits a Release Request for such PET Preforms. At any time that Supplier is holding greater than 20 million PET Preforms in
inventory at the Voghera Facility in response to Production Requests or approved production based on Purchaser’s forecasts, Supplier shall promptly notify Purchaser of the number and type of PET Preforms held in inventory and shall not be
obligated to accept Production Requests or to produce and hold PET Preforms until such inventory is reduced below 20 million PET Preforms.
(c) From time to time Purchaser may submit requests to release PET Preforms for shipment (“Release Requests”) to Supplier. So long as the aggregate amount of PET Preforms released during a month
does not exceed that month’s Production Request and agreed existing
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stockholdings, Supplier shall satisfy any Release Request; provided, that Supplier shall not be obligated, but shall use commercially reasonable efforts, to ship PET Preforms pursuant to a
Release Request on less than 5 days notice. In the event that the aggregate amount of PET Preforms released during a month exceeds that month’s Production Request and agreed existing stockholdings, Supplier shall use its commercially reasonable
efforts to satisfy the Release Request; provided, however, that in no event shall Supplier be obligated to utilize production equipment other than the Voghera Assets. With respect to Release Requests that (in the aggregate, if
applicable) do not exceed the relevant month’s Production Request, Supplier will ship no less than 95% of the released PET Preforms to the Constar Customers, as directed by Purchaser, OTIF (on time, in full). The measurement of OTIF shipments
shall conform to historic practices of the Voghera Facility. If Supplier is unable to satisfy a Release Request, Supplier shall promptly notify Purchaser. After such notification, Purchaser may, at its option, direct Supplier to resequence
utilization of the Voghera Assets to satisfy the Release Request; provided, however, that, in the event that the aggregate amount of PET Preforms released during a month exceeds that month’s Production Request, Supplier shall be
under no obligation to resequence utilization of the Voghera Assets if such resequencing would adversely effect Supplier’s other operations at the Voghera Facility. If Supplier is unable to satisfy a Release Request that (in the aggregate, if
applicable) did not exceed the relevant month’s Production Request and Purchaser is able to secure an alternative supply, such PET Preforms shall not be included in calculating the requirements commitment in clause (a) above. Purchaser shall be
deemed to purchase, and shall be responsible for payment to Supplier for, any PET Preforms shipped by Supplier in response to a Release Request, regardless of whether the Constar Customer ultimately pays Purchaser for such PET Preforms. Supplier
shall not be responsible for collecting payment from the Constar Customer for PET Preforms manufactured and shipped hereunder.
(d) Consistent with historic practices at the Voghera Facility, Purchaser shall provide Supplier, or shall direct the Constar Customers to provide Supplier, at Supplier’s cost, with resin necessary to produce the PET
Preforms. All invoices from Purchaser or a Constar Customer to Supplier for resin shall be paid by Supplier on or before the last day of the month containing the date which is 70 days after the invoice date. Supplier shall not be deemed to breach
this Agreement as a result of, and shall have no liability to Purchaser for, any failure to perform its obligations hereunder that results from the failure of Purchaser or the Constar Customers to provide Supplier with resin necessary to produce the
PET Preforms.
(e) Within 30 calendar days of the end of each three-month period ending March 31, June
30, September 30 and December 31 of each year during the Term, Purchaser shall provide Supplier a certificate from a member of it’s senior management attesting to Purchaser’s conformance to its obligations under Section 2.1(a) of this
Agreement during such three-month period. If Purchaser does not provide such certificate to Supplier within such 30 calendar day period or upon Supplier’s request, Purchaser shall permit Supplier’s outside accountants to access the books
and records of Purchaser in order to review the books and records relating to purchases of such PET Preforms by the Constar Customers.
(f) Notwithstanding the foregoing, Supplier shall not be required to manufacture and/or ship any specific PET Preforms if Supplier reasonably determines that any such
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manufacture or shipment will result in a material violation of any applicable governmental laws or
regulations.
(g) The parties agree to use good faith efforts to modify the provisions of this Section
2 if either party is unsatisfied with the operation of such provisions; provided, that no party shall be under any obligation to agree to any such changes.
ARTICLE III
PRICE
3.1. Pricing. (a) For Existing PET Preforms, Purchaser will pay to
Supplier the prices set forth on Schedule A hereto for the relevant PET Preforms purchased pursuant to this Agreement.
(b) For New PET Preforms, mutually agreeable pricing will be established between Supplier and Purchaser on a case-by-case basis. Supplier shall have no obligation to supply, and Purchaser shall have no obligation to
purchase, New PET Preforms for which pricing cannot be agreed upon and any such New PET Preforms shall not be calculated in the requirements commitment set forth in Section 2.1(a). If pricing of New PET Preforms is agreed upon, such New PET Preforms
shall be calculated in such requirements commitment.
ARTICLE IV
DELIVERY
4.1. Delivery. Delivery of all PET Preforms sold under this Agreement shall be F.O.B. Supplier at the Voghera Facility. Title and risk of loss or damages to all PET Preforms shall
pass to Purchaser upon shipment, F.O.B. point, by Supplier to Purchaser. Purchaser shall pay for all freight and other costs associated with shipment of PET Preforms to the location of delivery. For PET Preforms delivered F.O.B. Supplier, Supplier
shall furnish the facilities and personnel for loading PET Preforms at the F.O.B. point.
4.2. Payment. Supplier shall provide invoices to Purchaser for PET Preforms and, if applicable, shipping or other charges upon the earlier of (i) release of such PET Preforms
pursuant to a Release Request or (ii) 90 days from the date of acceptance of the Production Request pursuant to which such PET Preforms were produced. All invoices from Supplier to Purchaser for PET Preforms shall be paid by Purchaser on or before
the last day of the month containing the date which is 40 days after the invoice date.
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ARTICLE V
LEASE OF RELATED ASSETS
5.1. Lease and Removal of Voghera Assets. The Voghera Assets shall remain at the Voghera Facility and Supplier shall, subject to the terms and
conditions set forth in this Article V, lease the Voghera Assets from Purchaser for the Term (the “Lease”). Within 90 days after the last day of the Term, Purchaser shall remove, at its expense, and shall be solely responsible for
removing, the Voghera Assets from the Voghera Facility (the “Transfer Date”). Purchaser shall provide Supplier with written notice of the Transfer Date at least 60 Business Days prior to the Transfer Date. If the Voghera Assets
shall not be removed on or prior to the Transfer Date, Purchaser shall reimburse Supplier all costs and expenses incurred by Supplier on account of maintaining and storing the Voghera Assets at the Voghera Facility, and any other incidental,
consequential or other damages or losses incurred by Supplier as a result of such non-removal until Purchaser removes the Voghera Assets. Notwithstanding the preceding sentence or anything else in this Agreement to the contrary, Supplier shall have
no responsibilities or obligations of any kind, including, without limitation, as to operation, storage, insurance or maintenance, with respect to the Voghera Assets after the Transfer Date.
5.2. Rent. Consideration for the lease of Voghera Assets from Purchaser to Supplier for the Term is incorporated in the
prices for Existing PET Preforms included in Schedule A and will be included in the prices for any New PET Preforms.
5.3. Insurance. Supplier shall maintain adequate insurance with respect to the Voghera Assets insuring against such risks customarily insured against in accordance with
Supplier’s practice until their removal from the Voghera Facility by Purchaser in accordance with Section 5.1 or until 90 days after the Term, whichever is earlier. Supplier shall, upon Purchaser’s reasonable request, provide evidence of
insurance and appropriate loss payable endorsements in favor of Purchaser. Purchaser hereby assumes and shall bear the entire risk of damage, whether or not insured against, of the Voghera Assets arising out of the operation of the Voghera Assets or
arising out of Purchaser’s breach of this Agreement, negligence or willful misconduct.
5.4. Maintenance and Improvements. During the Term, Supplier shall perform all maintenance reasonably required to keep the Voghera Assets in good operating order, repair, condition
and appearance and in accordance with normal industry standards, normal wear and tear and impairments of value excepted. Notwithstanding the foregoing, Purchaser, and not Supplier or any of its Affiliates, shall be obliged to conduct, or cause to be
conducted, mold refurbishments reasonably required to maintain the Voghera Assets and shall be responsible for the cost of repairing or replacing any Voghera Assets that are defective or malfunctioning (except to the extent that such defects or
malfunctions arise as a result of Supplier’s failure to maintain the Voghera Assets in accordance with the first sentence of this Section 5.4). Prior to the start of each calendar year, Supplier shall provide Purchaser with an estimate of
capital investments with respect to the Voghera assets for the next year. Neither Supplier nor any of its
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Affiliates shall make any capital expenditures in respect of capital investments with respect to the Voghera Assets without the prior written consent of Purchaser. Upon receipt of such consent,
Supplier shall make, or cause to be made, such capital expenditures and shall invoice Purchaser for any expenses incurred in undertaking such capital expenditures. If Purchaser does not consent to, or agree to reimburse Supplier for any such capital
expenditures, neither Supplier nor any of its Affiliates shall have any obligation to make such capital expenditures and none of them shall be liable for any interruptions or deficiencies if the supply of PET Preforms under this Agreement, any
deterioration of the Voghera Assets or any other liability, arising out of or resulting from the failure to make any such capital expenditure. The parties agree that capital expenditures subject to approval and reimbursement by Purchaser shall not
include costs associated with routine maintenance (other than mold refurbishments) covered by the first sentence of this Section 5.4.
5.5. Warranties. During the Term, Purchaser assigns to Supplier, and Supplier may have the benefit of any and all manufacturers’ warranties, service agreements and
patent indemnities (copies of same to be provided to Supplier), if any, with respect to the Voghera Assets, to the extent assignable by Purchaser, until they are removed by Purchaser.
5.6. No Interference. Purchaser covenants that it shall not grant or convey any interest that, if used or enjoyed in
accordance with its terms, would interfere with the use, enjoyment, or operation of the Voghera Assets by Supplier, its Affiliates or their respective permitted successors, assigns or subtenants at any time prior to the removal of the Voghera Assets
by Purchaser; provided, that Purchaser shall be permitted to grant a security interest in the Voghera Assets to secure the indebtedness of Purchaser or any of its Affiliates.
5.7. Possession and Quiet Enjoyment. Purchaser covenants with Supplier that Supplier and its Affiliates will enjoy
quiet possession of the Voghera Assets and the right to use the Voghera Assets free from claims of persons in possession and third parties claiming rights thereto.
5.8. Access. Prior to the Transfer Date, representatives of Purchaser may, at their own expense, during normal business
hours and upon reasonable notice, inspect the Voghera Assets and have access to the employees whose primary responsibilities relate to the Voghera Assets; provided, that a representative of Supplier shall be present at all such times; and,
provided, further, that no exercise of such inspection shall materially interfere with the normal operation of the Voghera Assets or the business of Supplier.
ARTICLE VI
TERM,
DEFAULT AND OTHER PROVISIONS
6.1. Term. This Agreement shall commence upon the Initial Public Offering Date and shall continue until December 31, 2003 (the “Initial Term”). Subject to
Purchaser’s ability to obtain at least one renewal of the supply agreement from Constar Customers, Purchaser hereby agrees to purchase from Supplier 100% of Purchaser’s requirements for PET Preforms for Constar Customers provided that
terms and conditions offered by Supplier are arm’s length and, in particular, the sale price allows the Purchaser a margin of at least 5% on sales to Constar Customers and does not exceed Supplier’s Full Industrial Cost increased by a 5%
xxxx-up.
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6.2. Events of
Default. (a) The following shall be considered events of default and shall give rise to a right of Supplier to terminate this Agreement within 45 days of Supplier’s discovery of such event of default: (i)
Purchaser fails to make timely payments for invoiced PET Preforms, subject to a 30-day cure period after notice regarding such breach, (ii) Purchaser materially breaches any other applicable provision of this Agreement, subject to a 30-day cure
period after notice regarding such breach or (iii) Purchaser or Constar experiences a change of Control such that Purchaser or Constar is controlled by a competitor of either Constar or Crown (provided that such termination shall not be effective
until six months from the date of the Change of Control). If Purchaser or Constar suffers a Bankruptcy Event, Supplier shall have the right to unilaterally make reasonable modifications to the payment terms set forth in Section 4.2 of the Agreement
at any time after such Bankruptcy Event. Supplier shall promptly notify Purchaser of any such modifications to the payment terms of this Agreement.
(b) The following shall be considered events of default and shall give rise to a right of Purchaser to terminate this Agreement within 45 days of Purchaser’s discovery of such event of
default: (i) Supplier materially breaches any applicable provision of this Agreement, subject to a 30-day cure period after notice regarding such breach or (ii) Supplier or Crown experiences a change of Control such that Supplier or Crown is
controlled by a competitor of either Constar or Crown (provided that such termination shall not be effective until six months from the date of the Change of Control).
(c) Each party shall provide the other party with prompt notice upon discovery of a default by the other party; provided, that failure to give such notice shall
not limit or restrict the ability of a party to terminate this Agreement subject to the cure periods provided in this Section 6.2.
6.3. No Waiver. If the party not in default continues to make or accept shipments, as the case may be, despite the other party’s default, such action shall not
constitute a waiver of the default, or in any way affect the rights under this Agreement of the party not in default. A waiver by either party of any breach of any provision shall not constitute a waiver of any other breach of such provision or of
any other provision.
6.4. Force Majeure. Neither Supplier
nor Purchaser shall be responsible for any failure or delay in performance due to causes beyond the reasonable control of the affected party that render performance commercially impracticable (a “Force Majeure Event”). Any party, if
affected by any such cause, may, upon written notice to the other specifying the reasons therefor, reduce its obligations to the other by an amount not in excess of the quantity that it is unable to deliver or purchase due to such cause. In the
event such a curtailment by either party continues in whole or in part for a period of 5 continuous days, then, in the case of a Supplier Force Majeure Event, Purchaser may arrange for temporary supply of its requirements until Supplier can resume
delivery of PET Preforms to Purchaser, and, in the case of a Purchaser Force Majeure Event, Purchaser shall use its best efforts to sell to third parties those PET Preforms
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which would have been delivered to the Constar Customers on Purchaser’s behalf (in accordance with Purchaser’s delivery schedule) in the absence of such curtailment. Notwithstanding
anything to the contrary in this Agreement, this provision shall not apply to or otherwise excuse the failure to pay any uncontested costs or fees due under this Agreement when due (including payment for PET Preforms produced in accordance with
Section 2.1(b), regardless of whether Purchaser submits a Release Request for such PET Preforms).
6.5. Warranty; Limitation of Liability. (a) Supplier warrants that all PET Preforms sold to Purchaser (i) shall be free from defects in workmanship and materials, except
for any defects arising out of actions taken by or at the direction of Purchaser or materials provided by or on behalf of Purchaser and (ii) shall comply with the historical specifications for Existing PET Preforms and with any agreed upon
specifications for New PET Preforms. Supplier’s liability under this warranty, whether in contract or tort, shall be limited exclusively to the repayment of the purchase price of the defective PET Preforms. Supplier will make no other
warranties with respect to the PET Preforms. OTHER THAN THE ABOVE WARRANTY, SUPPLIER MAKES NO WARRANTY, WHETHER OF MERCHANTABILITY, FITNESS OR OTHERWISE, EXPRESS OR IMPLIED, IN FACT OR BY LAW, AND SUPPLIER SHALL HAVE NO FURTHER OBLIGATION OR
LIABILITY UNDER THE ABOVE WARRANTY OR WITH RESPECT TO THE PET PREFORMS. SUBJECT TO THE FOLLOWING SENTENCE, SUPPLIER SHALL IN NO EVENT BE LIABLE FOR PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES.
(b) Purchaser agrees to waive all claims for shortages in the PET Preforms ordered and received hereunder unless such claims are submitted in writing to
Supplier within 30 days after receipt of notice from the Constar Customer of such shortage.
(c) Subject to the above provisions, Purchaser shall not bring any other action arising hereunder unless such action is brought within one year after the date such cause of action accrues.
(d) Supplier shall not be liable for, and Purchaser assumes responsibility for, all personal injury and property damage
resulting from the handling, possession, use or resale of the PET Preforms produced hereunder after such PET Preforms are delivered to the Constar Customer, whether the same is used alone or in combination with other substances, except to the extent
any such personal injury or property damage results from the willful misconduct of Supplier.
6.6. Confidentiality; Disclosures.
6.6.1. Confidentiality. The parties agree (a) to maintain all information, whether in written, oral, electronic or other form, necessary for or utilized or received pursuant to any
terms of this Agreement, as the case may be, including, without limitation, prices, cost components, payment terms, technical knowledge, features, know-how, material, manufacturing, Release Requests, Production Requests, tooling and equipment
specifications and other
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information necessary to carry out the terms of this Agreement, as the case may be (the “Confidential Information”), as secret and confidential and (b) not to disclose the
Confidential Information to any third person or party (except for employees, counsel, contractors, customers, consultants or vendors who have a need to know and are informed of the confidential nature of such information by the disclosing party).
Each party shall accept responsibility and be liable for any disclosure by any third person of any Confidential Information disclosed to such third person by such party. The parties will use the same measures to maintain the confidentiality of the
Confidential Information of any other party in its possession or control that it uses to maintain the confidentiality of its own Confidential Information of similar type and importance. Notwithstanding the foregoing, either party or their
Affiliates may describe this Agreement in, and include this Agreement with, filings with the U.S. Securities and Exchange Commission and any related prospectuses, including such filings or prospectuses in connection with any offering of securities.
Confidential Information will not include information that (i) is in or enters the public domain without breach of this Agreement, or (ii) the receiving party lawfully receives from a third party without restriction on disclosure and, to the
receiving party’s knowledge, without breach of a nondisclosure obligation.
6.6.2. Disclosure to Governmental Agency. Notwithstanding the foregoing, each party shall be permitted to disclose the Confidential Information and/or any portion thereof (i) to a
governmental agency or authority as required in response to a subpoena therefor, (ii) in connection with formal requests for discovery under applicable rules of civil procedure in a legal action before a court of competent jurisdiction to which such
party is a party and (iii) as otherwise required by law; provided, however, that, in any such case, each party shall notify the other party as early as reasonably practicable prior to disclosure to allow such party to take appropriate
measures to preserve the confidentiality of such information at the expense of such party.
6.6.3. Ownership of Information. All Confidential Information supplied or developed by either party will be and remain the sole and exclusive property of the party who supplied or
developed it; provided, however, that any inventions, discoveries, technical knowledge or know-how relating to the manufacture or sale of PET preforms or containers and arising from the Voghera Assets or the production of PET Preforms
pursuant to this Agreement shall belong exclusively to Purchaser and Supplier hereby irrevocably and unconditionally assigns and transfers to Purchaser all rights of every kind, nature or description that Supplier may have in or to such inventions,
discoveries, technological knowledge or know-how.
6.6.4. Return of Confidential
Information. Upon the written request of a party which has disclosed information covered by Section 6.6 in written, printed or other tangible form, all such readily available information and all copies thereof, including
samples or materials, and all notes or other materials derived from such information shall be returned to the party which disclosed such information.
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6.7. Right of
Setoff. Purchaser and Supplier shall waive all rights of setoff and recoupment either may have against the other or any of the other’s Affiliates with respect to all amounts which may be owed from time to time
pursuant to this Agreement.
6.8. Indemnification. With
respect to PET Preforms manufactured by Supplier pursuant to this Agreement, Purchaser shall defend, indemnify and hold Supplier and its Affiliates and their respective officers, directors, employees, successors and permitted assigns harmless
against any and all liability, damage, loss, cost or expense arising out of (i) the manufacture, use or sale of such PET Preforms or any products liability arising therefrom (except any liability directly related to and directly caused by the gross
negligence or willful misconduct of Supplier in manufacturing the PET Preforms) and (ii) all claims, suits or actions for bodily injuries suffered in connection with the operations or maintenance of the Voghera Assets and arising out of
Purchaser’s breach of this Agreement, negligence or willful misconduct. Furthermore, Purchaser shall indemnify, defend and hold Supplier and its Affiliates and their respective officers, directors, employees, successors and permitted assigns
harmless against all damages, claims, judgments, decrees, costs, expenses and demands for unfair competition or infringement of any United States or foreign trademark or copyright as a direct result of Supplier’s manufacture of PET Preforms for
Purchaser conforming to the specifications required by Purchaser or the failure of such conforming PET Preforms to comply with any federal, state, local or other law or regulation. Supplier shall not settle any claim for which it is entitled to
indemnification hereunder without the written consent of Purchaser, which consent shall not be unreasonably withheld.
ARTICLE VII
MISCELLANEOUS
7.1. Notices.
All notices and other communications required or permitted hereunder shall be in writing, shall be deemed duly given upon actual receipt, and shall be delivered (a) in person, (b) by registered or certified mail, postage prepaid,
return receipt requested or (c) by facsimile or other generally accepted means of electronic transmission (provided that a copy of any notice delivered pursuant to this clause (c) shall also be sent pursuant to clause (b)), addressed as follows:
if to Purchaser, to:
Xxx Xxxxx Xxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Facsimile:
if to Crown, to:
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Crown Cork Italy S.p.A.
Xxx Xxxxxxxxx 000
00000 Xxxxxxx
Attention: Xxxxx Xxxxxxx
Facsimile:
with a copy to
Crown Cork & Seal Company, Inc.
Xxx
Xxxxx Xxx
Xxxxxxxxxxxx, XX 00000
Attention: Facsimile:
or to such other addresses or telecopy numbers as may be specified by like notice to the other
parties.
7.2. Independent Contractor. None of the parties is
now, nor shall it be made by this Agreement, an agent or legal representative of the other party for any purpose, and neither party has any right or authority to create any obligation, express or implied, on behalf of the other party, to accept any
service of process upon it, or to receive any notices of any kind on its behalf. All activities by Supplier hereunder shall be carried on by Supplier as an independent contractor and not as an agent for Purchaser.
7.3. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the Commonwealth of Pennsylvania.
7.4. Dispute
Resolution: Negotiation and Arbitration.
7.4.1. The parties shall attempt
to resolve any dispute arising out of or relating to this Agreement promptly by negotiation in good faith between executives who have authority to settle the dispute. A party shall give the other party written notice of any dispute not resolved in
the ordinary course of business. Within 10 Business Days after delivery of such notice, the party receiving notice shall submit to the other a written response thereto. The notice and the response shall include: (i) a statement of each party’s
position(s) regarding the matter(s) in dispute and a summary of arguments in support thereof, and (ii) the name and title of the executive who will represent that party and any other Person who will accompany that executive.
7.4.2. Within 10 Business Days after delivery of the notice, the designated executives shall meet at a mutually
acceptable time and place, and thereafter, as often as they reasonably deem necessary, to attempt to resolve the dispute. All reasonable requests for information made by one party to any other shall be honored in a timely fashion. All negotiations
conducted pursuant to this Section 7.4 (and any of the parties’ submissions in
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contemplation hereof) shall be deemed Confidential Information and shall be treated by the parties and their representatives as compromise and settlement negotiations under the United States
Federal Rules of Evidence and any similar state rules.
7.4.3. If the matter in dispute has
not been resolved within 30 days after the first meeting of the executives to attempt to resolve the dispute, either party may submit the dispute to binding arbitration to the Philadelphia, Pennsylvania office of the American Arbitration Association
(“AAA”) in accordance with the procedures set forth in the Commercial Arbitration Rules of the AAA.
7.4.4. The Commercial Arbitration Rules of the AAA, as modified or revised by the provisions of this Section 7.4, shall govern any arbitration proceeding hereunder. The arbitration shall be conducted by three
arbitrators selected pursuant to Rule 13 of the Commercial Arbitration Rules, and pre-hearing discovery shall be permitted if and only to the extent determined by the arbitrator to be necessary in order to effectuate resolution of the matter in
dispute. The arbitrator’s decision shall be rendered within 30 days of the conclusion of any hearing hereunder and the arbitrator’s judgment and award may be entered and enforced in any court of competent jurisdiction.
7.4.5. Resolution of disputes under the procedures of this Section 7.4 shall be the sole and exclusive
means of resolving disputes arising out of or relating to this Agreement; provided, however, that nothing herein shall preclude the Parties from seeking in any court of competent jurisdiction temporary or interim injunctive relief to
the extent necessary to preserve the subject matter of the dispute pending resolution under this Section 7.4.
7.5. Consent to Jurisdiction.
Supplier and Purchaser hereby agree
and consent to be subject to the exclusive jurisdiction of the United States District Court for the Eastern District of Pennsylvania, and in the absence of such Federal jurisdiction, the parties consent to be subject to the exclusive jurisdiction of
any state court located in the City of Philadelphia and hereby waive the right to assert the lack of personal or subject matter jurisdiction or improper venue in connection with any such suit, action or other proceeding. In furtherance of the
foregoing, each of the parties (i) waives the defense of inconvenient forum, (ii) agrees not to commence any suit, action or other proceeding arising out of this Agreement or any transactions contemplated hereby other than in any such court (other
than the mandatory submission to arbitration in accordance with Section 7.4), and (iii) agrees that a final judgment in any such suit, action or other proceeding shall be conclusive and may be enforced in other jurisdictions by suit or judgment or
in any other manner provided by law.
7.6. Entire
Agreement. This Agreement constitutes the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes any prior agreement or understanding, written or oral, relating to the subject
matter of this Agreement.
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7.7. Successors/No Third Party
Beneficiaries. This Agreement shall not be assignable, except that (i) Supplier may, after giving notice to Purchaser, assign its rights and obligations under this Agreement so long as the assignee agrees in writing to
assume Supplier’s obligations hereunder; provided, that Supplier shall not assign its rights and obligations under this Agreement to a competitor of Purchaser in the PET preform and container industry without the prior written consent of
Purchaser, and (ii) Purchaser may, and hereby gives notice to Supplier that it intends to, pledge its rights and obligations under this Agreement to its lenders as collateral to secure indebtedness outstanding under its senior secured credit
facility and all renewals, refundings, refinancings and replacements thereof. This Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and permitted assigns. Nothing in this
Agreement, express or implied, is intended to or shall (a) confer on any person other than the parties hereto and their respective successors or permitted assigns any rights (including third party beneficiary rights), remedies, obligations or
liabilities under or by reason of this Agreement, or (b) constitute the parties hereto as partners or as participants in a joint venture. This Agreement shall not provide third parties with any remedy, claim, liability, reimbursement, cause of
action or other right in excess of those existing without reference to the terms of this Agreement.
7.8. Severability. If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be held invalid or unenforceable by a
court of competent jurisdiction, the remainder of this Agreement or the application of any such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable shall not be affected thereby, and each
term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law. If any of the provisions contained in this Agreement shall for any reason be held to be excessively broad as to duration, scope, activity or
subject, it shall be construed by limiting and reducing it, so as to be valid and enforceable to the extent compatible with the applicable law or the determination by a court of competent jurisdiction.
7.9. Counterparts. This Agreement and any amendments hereto may be executed in any
number of counterparts, each of which shall be deemed an original instrument, but all of which together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile shall be
as effective as delivery of a manually executed counterpart of this Agreement.
7.10. Section Headings; Interpretive Issues. The section and paragraph headings contained in this Agreement are for reference purposes only and shall not in any way affect the
meaning or interpretation of this Agreement. Supplier and Purchaser have participated jointly in the drafting and negotiation of this Agreement. In the event any ambiguity or question of interpretation or intent arises, this Agreement shall be
construed as if drafted jointly by Supplier and Purchaser and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement.
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7.11. Effectiveness. The
terms of this Agreement shall not become effective until the Initial Public Offering Date.
7.12 Pronouns. Whenever the context may require, any pronouns used herein shall be deemed also to include the corresponding neuter, masculine or feminine forms.
7.13. Further Assurances. The parties shall execute, acknowledge and
deliver, or cause to be executed, acknowledged and delivered, such instruments and take such other action as may be necessary or advisable to carry out their obligations under this Agreement and under any exhibit, document or other instrument
delivered pursuant hereto.
7.14. Amendment and
Modification. This Agreement may not be amended or modified except by written instrument duly executed by the parties hereto. No course of dealing between or among any persons having any interest in this Agreement will be
deemed effective to modify, amend or discharge any part of this Agreement or any rights or obligations of any person under or by reason of this Agreement.
15
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.
| CONSTAR PLASTICS OF ITALY S.R.L.
| ||
| By: |
/s/ XXXXXXXXXXXX XXXXXXX | |
| Name: Xxxxxxxxxxxx Xxxxxxx Title: Special Attorney | ||
| CROWN CORK ITALY S.P.A. | ||
| By: |
/s/ XXXXX XXXXXXX | |
| Name: Xxxxx Xxxxxxx Title: Managing Director | ||
16
Schedule A
Existing PET Preforms and Prices
In EUR
| Preform cost |
28g |
47g |
||||
| PET resin |
X |
X |
(assumes 1% spoilage) | |||
| Masterbatch |
X |
X |
(assumes 1% spoilage) | |||
| Voghera conversion cost, includes packaging |
4.85 |
5.87 |
||||
| |
|
|||||
| Ex-works price |
X |
X |
||||
| |
|
PET resin = preform weight in grammes x % PET x PET price x 1,01
Masterbatch = preform weight in grammes x % masterbatch x masterbatch price x 1,01
Voghera conversion costs assumes that the PET equipment sold to Constar is being leased back for zero rent
Schedule B
Constar Customers
Coca-Cola Bevande Italia Spa and any other Affiliates of The Coca-Cola Company located
in Italy
Schedule C
Voghera Assets
DESCRIPTION
mould 48 cavity (# 96024)
mould 48
cavity (# 96023)
mould 96 cavity (# 96054)
differences in charging moulds
cooling system moulds
injection machine 48 cavity
injection machine 48 cavity
injection machine 96 cavity
differences in charging
injection machine
n° 3 dehumidifiers Husky
n° 3 water coolers
n° 6 air condensers
n° 2 Somos drier D 900
n° 1 Somos drier D1600
n°5 Silos
PET transport system
PET transport system
LX300 PET machine P100/120 E100
servo B robot & flat belt conveyor
travelling bridge-crane
rotative compressor
Kaeser
refrigerating drier
dischargers
n°2 three-phase transformers
measuring device unit masterbach
electrical cabinet
blowing machine + switchboard
miscellaneous
miscellaneous
conveyor
air compressor
emergency
miscellaneous
manutention injection mold 48 cavity
manutention injection mold 48 cavity
manutention injection mold 96 cavity
electrical equipment for conditioning
conveyor belt cooling system
mould Coca Cola 1/2 litre
Kaeser compressor
materials to breathe in rarefied air
conveyor
hydraulic pump
vibrating table
