EXHIBIT 10.4
POWDER SUPPLY REQUIREMENTS AGREEMENT
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THIS AGREEMENT ("Agreement") is made and entered into as of this first day
of January, 1997, by and between PRIMEX TECHNOLOGIES, INC., a corporation duly
organized and existing under the laws of Virginia, and having its principal
office at 00000 Xxxxx Xxxxxx Xxxxx, Xx. Xxxxxxxxxx, Xxxxxxx 00000-0000
("Primex") and XXXX CORPORATION, a corporation duly organized and existing
under the laws of Virginia, and having an office at 000 Xxxxx Xxxxxxxx Xxxxxx,
Xxxx Xxxxx, Xxxxxxxx 00000 ("Olin"). (Olin and Primex each being referred to as
a "Party" individually and collectively as the "Parties".)
WITNESSETH:
WHEREAS, Olin has transferred to Primex all or substantially all of the
assets related to Olin's Ordnance Division, including its St. Marks, Florida
powder manufacturing plant ("St. Marks Plant") in anticipation of the spin-off
of Primex to the shareholders of Olin; and,
WHEREAS, Olin desires to purchase Product(s), as defined below, from Primex
to support the business and manufacturing activities of its Winchester Division
("Winchester"); and,
WHEREAS, Primex desires to sell Winchester such Products; and,
WHEREAS, the Parties desire to enter into this Agreement for the purchase
and sale of Products.
NOW, THEREFORE, in consideration of the above and the mutual undertakings
set forth below, the Parties intending to be legally bound, covenant and agree
as follows:
1. Definitions:
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For purposes of this Agreement, the following terms shall have the
following meanings:
(a) "Confidential Information" shall mean any and all information
disclosed to the receiving Party by a disclosing Party pursuant to this
Agreement, in any form such as, but not limited to, visual, oral, written,
graphic, electronic or model form, including but not limited to know-how and
trade secrets, whether of a business or a technical nature, whether patented or
not and whether in the laboratory, pilot plant or commercial plant stage
(including drawings, operating conditions, specifications, safety instructions,
environmental recommendations, emergency instructions, etc.) owned or controlled
by a Party.
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 2
(b) "Effective Time" shall mean such date as may hereafter be
determined by Olin's Board of Directors as the date as of which the
spin-off of Primex shall be effected.
(c) "Ineligible Offers" shall mean an offer by a third party to sell
powder during a period in which a petition has been filed and is pending
claiming that (i) said third party has received a "subsidy" as that term is
defined in Article 1 of the Agreement on Subsidies and Countervailing Measures
of the General Agreement on Tariffs and Trade 1994, with respect to such powder
and/or (ii) such powder sold by said third party is being "dumped" as that term
is defined in Article 2 of the General Agreement on Tariffs and Trade 1994.
(d) "Product(s)" shall mean propellant powder manufactured and/or sold by
Primex, including but not limited to St. Marks Powders and Synthesia Powders.
(e) "Requirements" shall mean the total amount of propellant powder used
by Winchester in any calendar year in loading ammunition (excluding ammunition
loaded by Winchester as the operator of any government owned, contractor
operated (GOCO) facility including the Lake City Army Ammunition Plant in
Independence, Missouri), excluding all such propellant powder that Winchester
purchases from a third party because:
(i) Primex is unable or unwilling to manufacture propellant powder at
its St. Marks, Florida facility and supply such powder within a commercially
reasonable time after a request therefor by Olin; or
(ii) Primex is unable to produce or supply propellant powder because
of an occurrence of force majeure, as defined in Section 18 below.
For the purposes of this subsection 1(e), Primex may supply St. Marks
Powder that has safety, handling and performance characteristics substantially
equivalent to the powder then offered by a third party to Olin. Primex and Olin
shall expeditiously and in good faith resolve differences in opinion on which
powders are substantially equivalent and, failing resolution, shall employ the
dispute resolution provisions set forth in this Agreement. As a clarification of
subparagraph (i) of subsection 1(e) of this Agreement: (1) only those powders
which are actually requested by Olin to be made by Primex may be excluded from
the Requirements pursuant to this Agreement; (2) specific powders that are
specified by the government to be used to manufacture particular rounds of
ammunition and which Primex cannot make are excluded from the Requirements
pursuant to this Agreement; and (3) powders that are used by any third party in
manufacturing ammunition for sale to Winchester
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 3
are excluded from the Requirements pursuant to this Agreement, unless Winchester
supplies any components to such third party for inclusion in such ammunition.
Primex shall advise Olin of its willingness and ability to produce and supply
any powder within fifteen (15) working days of a request by Olin.
(f) "Similar Product" shall mean any propellant powder, sold by Primex (or
its agent) to any third party commercial customer anywhere in the world, that is
substantially similar or identical to Product offered or sold by Primex to Olin
hereunder. (Exhibit A provides guidelines to establish which powders are
"substantially similar or identical to".)
(g) "St. Marks Powder(s)" shall mean propellant powder manufactured by
Primex at its St. Marks, Florida powder manufacturing plant, excluding Synthesia
Powders.
(h) "Synthesia Powder" shall mean propellant powder purchased by Primex
from Synthesia a.s., including but not limited to propellant powder distributed
by Primex pursuant to that certain "Distribution Agreement, U.S.A., Canada, And
Mexico" executed by Synthesia a.s. as of "14 III 96" which was assigned by Olin
to Primex.
2. Term:
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This Agreement shall become effective upon the Effective Time and shall
continue to, and including, December 31, 2002 unless it is sooner terminated as
provided herein.
3. Pricing:
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Price: The prices for Products purchased by Olin from Primex during the
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Term of this Agreement shall be established at competitive levels by mutual
written agreement by Olin and Primex from time-to-time.
4. Quantity:
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(a) Percentage of Requirements: During the term of this Agreement, Olin
shall purchase from Primex, and Primex shall sell to Olin at least the percent
of Olin's Requirements during each calendar year as set forth below, excluding
therefrom propellant powder that Olin purchases from a third party because
Primex declines to meet the price and other material terms (including
commercially
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 4
reasonable delivery dates) offered by a third party (excluding Ineligible
Offers) within five (5) business days after Olin provides Primex with
satisfactory evidence of said offer:
Calendar Year Percent of Requirements
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1997 100%
1998 90%
1999 85%
2000 80%
2001 75%
2002 70%
For purposes of Section 4, the price at which Primex is deemed to meet
the price offered by a third party shall take into account any relevant
differences in burning efficiencies between Primex's powder and the powder
offered by the third party.
(b) Synthesia Powder. No Synthesia Powder requested by Olin to be
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supplied by Primex shall count towards satisfying Olin's obligation to purchase
its Requirements from Primex; provided, however, Primex may waive this
restriction upon request by Olin on a case-by-case basis. Notwithstanding any
other provision of this Agreement, Olin shall have no obligation to purchase
Synthesia Powder hereunder.
(c) Preferred Customer. Olin shall be Primex's preferred customer of
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Products. However, nothing in this Agreement is intended to require Primex to
sell Products exclusively to Olin, except as may be specifically provided by the
Parties following the date first above written with respect to specific New
Products, as defined below.
(d) Supply Schedules. Olin will prepare supply schedules in accordance
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with Exhibit B, attached hereto.
5. Product Specifications:
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Product specifications are identified on Exhibit A, attached hereto and
made a part hereof by this reference. Specifications for New Products, as
defined below, shall be added to Exhibit A from time-to-time by mutual agreement
between the Parties.
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 5
6. New Product Development:
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The Parties recognize that from time-to-time powders or powder-related
products may be developed ("New Products"). Primex agrees to make New Products
available to Olin, except to the extent Primex is restricted from doing so by
development agreements entered into with unaffiliated third parties. Prior to
the initiation of a New Product development effort to be assisted by Olin, the
Parties shall agree on each Party's role in the New Product development effort,
including, but not limited to, such items as cost sharing, engineering support,
product test and the introduction and availability of the New Product to Olin on
an exclusive basis, and other customers generally. Pricing for New Products
shall be in accordance with Section 3, above.
7. Storage and Inventory:
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Primex shall maintain, at all times during the Term of this Agreement, a
sixty (60) calendar day supply ("Safety Stock") of each Product required by
Winchester as identified on the Firm Supply Schedule as defined in Exhibit B.
The sixty (60) calendar day Safety Stock shall consist of a thirty (30) calendar
day inventory of finished Product and the work-in-process to support the Firm
Supply Schedule. The sixty (60) calendar day Safety Stock shall be maintained
by Primex to insure the continued immediate availability of Product to support
Olin's requirements for each Product identified on the Firm Supply Schedule.
Olin shall be obligated to take delivery of all Products comprising the Safety
Stock in accordance with the Firm Supply Schedule, unless Primex relieves Olin,
in writing, of such obligation. During the Term of this Agreement, the Parties
may agree to increase or decrease the Safety Stock requirements. The sixty (60)
calendar day Safety Stock shall be maintained at Primex's sole cost and expense.
Any increases in the Safety Stock requested by Olin, and agreed to by Primex,
shall be at Olin's expense.
8. Acceptance:
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(a) Acceptance shall occur upon delivery of Product. Primex shall provide
Olin with certified test results verifying Product compliance with Product
specifications upon delivery. All Products shall be subject to the warranty
provisions contained herein.
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 6
(b) Each delivery shall constitute a separate contract and payment
therefore shall be made without regard to any other shipments.
9. Payment:
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Olin shall make full payment to Primex for all shipments within thirty (30)
calendar days after delivery of Product to Olin. If a good faith dispute
concerning a particular shipment of Product arises, Olin shall promptly notify
Primex, in writing, of the dispute and the Parties shall, in good faith, meet to
resolve the dispute. Unless otherwise agreed in the context of resolving a
dispute, all amounts unpaid by Olin after the thirty (30) day period referenced
above shall bear interest at the prime rate beginning on the thirty-first day
(31st) until paid. The prime rate shall be established on such thirty-first
(31st) day by the published prime rate charged by the Chase Manhattan Bank, New
York, New York, or any successor thereto.
10. Changes of Product Availability:
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(a) Primex shall promptly notify Olin, in writing, in advance of the
planned discontinuance or change in any Product or Product line that Olin
purchases.
(b) Olin shall promptly notify Primex of its planned discontinuance or
change of any ammunition loaded with the Product, including its intention to
load such ammunition with a new or different propellant powder, provided it does
not breach an obligation of confidentiality with a third party.
(c) Upon receipt of another party's notice of planned Product or
ammunition discontinuance or change, the Parties shall enter into immediate
discussions to mutually agree on a scheduled "phase-out" plan of that particular
Product or ammunition. The "phase-out" plan shall take into consideration the
minimum disruption to Olin's and Primex's business activities, minimum lot sizes
and support of the WINCHESTERr brand product lines. In the event the Parties
cannot agree on a Product "phase-out" plan, then Primex shall continue to
manufacture, make available and sell the Product in minimum lot sizes, to Olin
for twenty-four (24) consecutive months after the date of the notice of Product
discontinuance or change.
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 7
11. Packaging:
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(a) All Products will be packed with care by Primex and delivered in an
undamaged condition to the point of delivery.
(b) Primex may package Products in new or used fibre-pak containers
("Fibre-paks"). Olin agrees to return the Fibre-paks to Primex in full
truckload quantities in accordance with the "Conditions for Used Pack Acceptance
at St. Marks" set forth in Exhibit C, attached hereto. Primex shall be
responsible for Olin's reasonable return freight costs. In consideration of
each Fibre-pak returned to Primex in accordance with Exhibit C Primex agrees to
pay Olin the greater of: (1) any amount paid by Primex to any third party at any
time in the then-current calendar year for the respective size of Fibre-pak, or
(2) the following:
(i) Thirty cents ($0.30) for each six and one-half (6.5) gallon
Fibre-pak; and
(ii) one dollar ($1.00) for each fourteen and one-half (14.5) gallon
Fibre-pak.
12. Delivery:
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Title and risk of loss of all Products sold hereunder shall pass to Olin
upon delivery to Olin f.o.b., St. Marks, Florida, freight prepaid.
13. Quality Review:
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Olin shall have the right, upon reasonable prior notice to Primex and at
reasonable times, to send its employees, agents and representatives to visit
Primex production facilities and review Primex production and quality-control
techniques, for the sole purpose of assuring Olin of the consistent quality of
the Product(s) supplied hereunder; provided, however, that nothing in this
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Section 13 shall entitle any such employee, agent or representative of Olin to
review any confidential or proprietary information of Primex.
14. Warranty:
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(a) Primex warrants to Olin that: (i) for a period of twelve (12)
consecutive months after delivery, the Products sold hereunder shall conform to
the specifications identified in Exhibit C and be free from defects in material
and workmanship, and (ii) Olin will receive good title to all Products sold
hereunder, free and clear of
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 8
any security interest, lien or encumbrance. THE ABOVE WARRANTIES ARE EXCLUSIVE
AND IN LIEU OF ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(b) If Products are defective in material or workmanship or fail to meet
applicable specification(s), then Primex shall accept return of the defective
Products and promptly replace the defective Products with conforming Products at
its own cost, including transportation and delivery costs. Primex's obligations
hereunder are contingent upon the Product not being subject to misuse or abuse
by Olin and Primex's right to reasonable access to Olin's facilities to verify
the non-conforming Product.
(c) Without limiting the obligations identified in Section 15, the Parties
agree that Olin's sole and exclusive remedy and Primex's sole and exclusive
liability for the delivery of defective Product shall be as identified in this
Section 14 and in Section 19 hereof.
15. Indemnification:
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(a) Primex shall defend, indemnify and hold Olin, its directors, officers,
agents, servants and employees harmless from and against any and all
liabilities, claims, damages, costs, expenses and judgments (including but not
limited to reasonable attorneys' fees and disbursements) which are caused by or
alleged to be caused by manufacturing and/or design defects (including strict
liability) in the Product(s) purchased hereunder.
(b) Olin shall defend, indemnify and hold Primex, its directors, officers,
agents, servants and employees harmless from and against any and all
liabilities, claims, damages, costs, expenses and judgments (including but not
limited to reasonable attorneys' fees and disbursements) which (i) are caused by
Olin's negligent misuse or improper handling of Product(s), or (ii) result from
Olin's manufacturing and/or design defects (including strict liability) in
ammunition loaded with non-defective Product purchased hereunder.
(c) In cases where a third-party lawsuit has been filed alleging, among
other things, that the Products purchased by Olin hereunder or ammunition made
therefrom failed to meet Product specifications or were defective in material or
in some manner contributed to an occurrence giving rise to a claim of personal
injury, death or
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 9
property damage, the Parties agree to cooperate in the defense of the lawsuit.
All costs, expenses, attorneys' fees, settlements and/or judgments and other
amounts expended in the defense of the lawsuit shall be allocated between the
Parties in an equitable manner as determined by the Parties on a case-by-case
basis.
16. Limitation of Liability:
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Except as provided in Section 15 above, in no event shall either Party be
liable for special, consequential or incidental damages under this Agreement.
17. Secrecy:
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(a) Secrecy Obligation: Each of the Parties agrees: (i) to keep
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confidential the terms of this Agreement, except to the extent required by law;
and (ii) to keep confidential and neither disclose to others nor use except as
permitted herein any Confidential Information received from the other Party
pursuant to the Agreement.
(b) Limits On Disclosure: The receiving Party shall treat such
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Confidential Information in the same manner and with the same degree of care as
it uses with respect to its own Confidential Information of like nature and
shall disclose Confidential Information of the other Party only to its
employees who have a need to know it, provided that such employees are bound to
respect all secrecy obligations provided for in this Agreement.
(c) Exceptions: The obligation set forth in this Section 17(a) above
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shall not apply with respect to any Confidential Information which:
(i) Public Knowledge: Is generally available to the public or
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subsequently becomes generally available to the public through no breach by the
receiving Party of secrecy obligations under this Agreement or prior agreements
between the Parties concerning the Confidential Information; or
(ii) Prior Possession: The receiving Party can establish by competent
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evidence was in its possession at the time of disclosure and was not acquired in
confidence directly or indirectly, from the disclosing Party; or
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 10
(iii) Received From Third Party: Is received from a third party
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who is legally free to disclose such Confidential Information and who did not
receive such Confidential Information in confidence from the disclosing Party;
or
(iv) Approved For Disclosure: Is approved in writing for release by
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the disclosing Party; or
(v) Successor In Interest: Is disclosed to any permitted assignee of
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the Agreement, provided that such assignee agrees to be bound by the provisions
of the Agreement; or
(vi) Independently Developed: Is independently developed by the
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receiving Party without reference to the Confidential Information received from
the disclosing Party.
(d) Permitted Disclosures: The provisions of Section 17(a)
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notwithstanding, in exercising the rights granted under this Agreement, either
Party may disclose Confidential Information to others for purpose of
sublicensing (as permitted hereunder), design, engineering, construction or
operation of facilities permitted hereunder using Confidential Information; or
obtaining or giving consulting services under a license agreement permitted
hereunder, provided that any third party, to which such Confidential Information
is disclosed shall have first entered into a written secrecy and non-use
obligation at least as stringent as that imposed on the Parties pursuant to this
Agreement.
(e) Subpoena Or Demand: The provisions of Section 17(a) notwithstanding,
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a Party may disclose Confidential Information pursuant to a subpoena or demand
for production of documents in connection with any suit or arbitration
proceeding, any administrative procedure or before a governmental or
administrative agency or instrumentality thereof or any legislative hearing or
other similar proceeding, provided that the receiving Party shall promptly
notify the disclosing Party of the subpoena or demand and provided further that
in such instances, the Parties use their reasonable best efforts to maintain the
confidential nature of the Confidential Information by protective order or other
means.
18. Force Majeure:
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POWDER SUPPLY REQUIREMENTS AGREEMENT Page 11
(a) Neither Party shall be liable to the other for its failure to perform
any or all of its obligations hereunder if such failure is caused by strikes,
labor troubles, fire, flood, accidents, wars (domestic or foreign), riots, civil
commotions, sabotage, acts of God, explosion, embargo, or due to orders or
directives of any governmental authority having jurisdiction over the Parties,
or for any acts beyond the reasonable control of the affected Party.
(b) In the event Primex experiences an occurrence of force majeure,
impacting its ability to manufacture and/or deliver Products to Olin to meet
Winchester's needs, Primex shall immediately notify Olin, in writing, of the
event and the anticipated date of the resumption of Product manufacturing and/or
delivery activities.
(c) If Primex is delayed in the resumption of Product manufacturing and/or
delivery activities (for any reason other than any official act of the United
States Government asserting procurement priority over all or any part of
Primex's production facility located in St. Marks, Florida) beyond six (6)
months after the initiation of the force majeure event, or if Primex decides for
any reason to exit the business of manufacturing, producing and/or delivering
St. Marks Powder, Primex shall, at its sole option: (i) xxxxx Xxxx a limited,
royalty-free license to use and sublicense the most current technology and know-
how necessary to manufacture St. Marks Powders for delivery solely to Winchester
and its distributors and dealers, or (ii) grant a third party a limited,
royalty-free license to use the most current technology and know-how necessary
to manufacture St. Marks Powders for delivery solely to Winchester and its
distributors and dealers.
19. Termination:
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Either Party shall have the right to terminate this Agreement upon
twenty-five (25) calendar days advance written notice to the other
Party in the event the other Party breaches a material provision of
this Agreement and the breaching Party fails to substantially cure the
material breach within a period of time equal to: (i) said 25-day
period, plus (ii) the number of calendar days, not to exceed 14, of
any shut-down of Primex's St. Marks Powder production facility
commencing or ending within said 25-day period. If either Party elects
to exercise its right to assign this Agreement pursuant to Section 26
(c) hereto in connection with its merger or consolidation or the sale
of all or substantially all its assets related to, in the case of
Olin, its business of manufacturing and selling ammunition having a
caliber less than 20mm or, in the case of Primex, its business of
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 12
manufacturing and selling propellant powder and if the resulting,
surviving or transferee entity is engaged in or controlled, directly
or indirectly, by any person who is engaged in, in the case of an
assignment by Primex, the manufacture or sale of ammunition having a
caliber less than 20mm or shotshells, and, in the case of an
assignment by Olin, the manufacture or sale of propellant powder for
ammunition, the assigning Party shall notify the other Party of its
election to assign this agreement and the other Party for a period of
thirty (30) days after receipt of said notice shall have the right to
terminate this Agreement upon providing written notice to the
assigning Party and the resulting, surviving or transferee entity.
20. Independent Pricing and Quantity Audits:
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During the Term of this Agreement, and any renewal Terms thereof, each
Party (the "Auditing Party") shall have the right to appoint an independent
third party acceptable to the other Party (the "Audited Party"), to conduct an
audit of the relevant records of the Audited Party (including but not limited
to: (i) if Primex is the Audited Party, Primex's accounting and sales records,
and (ii) if Olin is the Audited Party, Olin's accounting and purchase records)
to determine compliance with the agreed to pricing and quantity requirement
procedures. The Audited Party agrees to make its records and employees
reasonably available to the auditors to promote the efficient and accurate
completion of the audit. Any discrepancies discovered by the audit shall be
resolved by mutual agreement between the Parties. The Auditing Party shall pay
the third party auditor for the audit. The Parties agree that the auditor shall
be instructed to keep the Audited Party's information confidential. The auditor
shall only report to the Auditing Party: (i) whether or not the Audited Party is
in compliance with the agreed to pricing and quantity requirement provisions
and, (ii) if the auditor reports that Audited Party is not in compliance with
any aspect of the pricing provisions the auditor shall only reveal to the
Auditing Party that portion of the Audited Party's information necessary to
identify the non-compliance. Under no circumstances shall the auditor disclose:
(i) to Olin the identity of Primex's customers, or (ii) to Primex the identity
of Olin's suppliers.
21. Notices:
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All notices and other communications hereunder shall be in writing and
hand delivered or mailed by registered or certified mail (return receipt
requested) or sent by any means of electronic message transmission (excluding
voice mail) with delivery confirmed (by voice or otherwise) to
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 13
the parties at the following addresses (or at such other addresses for a Party
as shall be specified by like notice) and will be deemed given on the date on
which such notice is received:
If to Olin: Xxxx Corporation
Winchester Division
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxx Xxxxx, XX 00000
Attention: Vice President,
Manufacturing
Fax no.: (000) 000-0000
If to Primex: Primex Technologies, Inc.
X.X. Xxx 000
Xx. Xxxxx, Xxxxxxx 00000-0000
Attention: Director, St. Marks
Operation
Fax no.:
and
00000 Xxxxx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000-0000
Attention: General Counsel
Fax no.: (000) 000-0000
Either Party may change their address by a notice given to the other
Party in the manner set forth above.
22. Choice of Law:
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This Agreement shall be governed by and construed in accordance with the
laws of the State of Illinois, excluding its choice of law rules.
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 14
23. Dispute Resolution:
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In the event of a controversy, dispute or claim arising out of, in
connection with, or in relation to the interpretation, performance,
nonperformance, validity or breach of this Agreement or otherwise arising out
of, or in any way related to this Agreement, including, without limitation, any
claim based on contract, tort, statute or constitution (collectively, "Agreement
Disputes"), the General Counsels of the relevant Parties or their designees
shall negotiate in good faith for a reasonable period of time to settle such
Agreement Dispute. If after such reasonable period such General Counsels or
their designees are unable to settle such Agreement Dispute (and in any event
after 60 days have elapsed from the time the relevant parties began such
negotiations), such Agreement Dispute shall be determined, at the request of any
relevant party, by arbitration conducted in St. Louis, Missouri before and in
accordance with the then-existing Rules for Commercial Arbitration of the
American Arbitration Association (the "Rules"), and any judgment or award
rendered by the arbitrator shall be final, binding and nonappealable (except
upon grounds specified in 9 U.S.C. 10(a) as in effect on the date hereof), and
judgment may be entered by any state or Federal court having jurisdiction
thereof in accordance with Section 9.19 hereof. Unless the arbitrator otherwise
determines, the pre-trial discovery of the then-existing Federal Rules of Civil
Procedure and the then-existing Rules 12, 13, and 13.1 of the Rules of the
United States District Court for the Southern District of Illinois shall apply
to any arbitration hereunder. Any controversy concerning whether an Agreement
Dispute is an arbitrable Agreement Dispute, whether arbitration has been waived,
whether an assignee of this Agreement is bound to arbitrate, or as to the
interpretation of enforceability of this Section 23, shall be determined by the
arbitrator. The arbitrator shall be a retired or former judge of any United
States District Court or Court of Appeals or such other qualified person as the
relevant parties may agree to designate, provided such individual has had
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substantial professional experience with regard to settling commercial disputes.
The parties intend that the provisions to arbitrate set forth herein be valid,
enforceable and irrevocable. The designation of a situs or a governing law for
this Agreement or the arbitration shall not be deemed an election to preclude
application of the Federal Arbitration Act, if it would be applicable. In his
award the arbitrator shall allocate, in his discretion, among the parties to the
arbitration all costs of the arbitration, including, without limitation, the
fees and expenses of the arbitrator and reasonable attorneys' fees, costs and
expert witness expenses of the parties. The undersigned agree to comply with
any award made in any such arbitration proceedings that has become final in
accordance with the Rules and agree to the entry of a judgment in any
jurisdiction upon any award rendered in such proceedings becoming final under
the Rules. The arbitrator shall be entitled, if
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 15
appropriate, to award any remedy in such proceedings, including, without
limitation, monetary damages, specific performance and all other forms of legal
and equitable relief; provided, however, the arbitrator shall not be entitled to
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award punitive damages.
24. Consent to Jurisdiction:
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Without limiting the provisions of Section 23 hereof, each of the parties
irrevocably submits to the exclusive personal jurisdiction and venue of (a) the
Circuit Court of the Third Judicial Circuit, Madison County, Illinois, and (b)
the United States District Court for the Southern District of Illinois for the
purposes of any suit, action or other proceeding arising out of this Agreement
or any transaction contemplated hereby. Each of the parties agrees to commence
any action, suit or proceeding relating hereto either in the United States
District Court for the Southern District of Illinois or if such suit, action or
other proceeding may not be brought in such court for jurisdictional reasons, in
the Circuit Court of the Third Judicial Circuit, Madison County, Illinois. Each
of the parties further agrees that service of any process, summons, notice or
document by U.S. registered mail to such Party's respective address set forth
above shall be effective service of process for any action, suit or proceeding
in Illinois with respect to any matters to which it has submitted to
jurisdiction in this Section 24. Each of the parties irrevocably and
unconditionally waives any objection to the laying of venue of any action, suit
or proceeding arising out of this Agreement or the transactions contemplated
hereby in (i) the Circuit Court of the Third Judicial Circuit, Madison County,
Illinois, or (ii) the United States District Court for the Southern District of
Illinois, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient forum.
25. Government Requirements:
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The Products are on the U.S. Munitions list, and may not be exported from
the U.S. without a license from the U.S. Department of State, which license
shall indicate the country of ultimate destination of such Products. In
addition, U.S. law prohibits the sale, transfer, or other disposition of
Products of U.S. origin to certain countries without authorization. Olin shall
not resell, divert, transfer, transship, reship or re-export, or use Products on
the U.S. Munitions list in or to any country other than that described on the
U.S. export license for the Products as the country of ultimate destination,
without the prior written approval of the U.S. Department of State.
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 16
26. Miscellaneous:
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(a) Amendments. The Parties hereto acknowledge and agree that in the
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interest of time, certain matters of a practical business nature such as minor
changes in delivery dates, shipment instructions, small variances in orders and
the like may be orally agreed to by the Parties provided that any disputes that
arise from such oral agreements shall not constitute breaches of this Agreement.
(b) Successors and Assigns. The provisions of this Agreement shall be
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binding upon, inure to the benefit of and be enforceable by the Parties and
their respective successors and permitted assigns.
(c) Assignability. This Agreement shall be assignable in whole in
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connection with a merger or consolidation of a Party hereto or the sale of all
or substantially all the assets related to Olin's business of manufacturing and
selling ammunition having a caliber less than 20mm and shotshells or Primex's
business of manufacturing and selling propellant powder so long as the
resulting, surviving or transferee entity assumes all the obligations of the
relevant Party hereto by operation of law or pursuant to an agreement in form
and substance reasonably satisfactory to the other Party to this Agreement.
Otherwise this Agreement shall not be assignable, in whole or in part, directly
or indirectly, by any Party hereto without the prior written consent of the
other, and any attempt to assign any rights or obligations arising under this
Agreement without such consent shall be void. Prior to any assignment, Xxxx and
Primex shall meet to review the Agreement and make changes and adjustments to
the Agreement as both Parties, in good faith, agree are mutually beneficial.
(d) Waivers. The failure of either Party to require strict performance by
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the other Party of any provision in this Agreement will not waive or diminish
that Party's right to demand strict performance thereafter of that or any other
provision hereof.
(e) Severability. In the event any one or more of the provisions
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contained in this Agreement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 17
therein shall not in any way be affected or impaired thereby. The Parties shall
endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions, the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
(f) Title and Headings. Titles and headings to sections herein are
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inserted for the convenience of reference only and are not intended to be a part
of or to affect the meaning or interpretation of this Agreement.
(g) Complete Agreement; Construction. This Agreement, including the
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Exhibits and the pricing agreements referenced in Section 3 above, shall
constitute the entire agreement between the parties with respect to the subject
matter hereof and shall supersede all previous negotiations, commitments and
writings with respect to such subject matter. In the event of any inconsistency
between this Agreement and any Exhibit hereto and said pricing agreement, the
Exhibit and pricing agreement shall prevail. The terms and conditions of this
Agreement shall prevail over any terms or conditions contained on purchase
orders, sales acknowledgments, or the like for Products under this Agreement.
(h) Sections 9, 14, 15, 16, 17, 22, 23, 24 and 25 shall survive the
termination of this Agreement.
(i) Exhibits. The Exhibits shall be construed with and as an integral
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part of this Agreement to the same extent as if the same had been set forth
verbatim herein.
(j) Third Party Beneficiaries. This Agreement is solely for the benefit
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of the Parties hereto and their respective subsidiaries and affiliates and
should not be deemed to confer upon third parties any remedy, claim, liability,
reimbursement, claim of action or other right in excess of those existing
without reference to this Agreement.
(k) Attorney Fees. A Party in breach of this Agreement shall, on demand,
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indemnify and hold harmless the other Party hereto for and against all out-of-
pocket expenses, including, without limitation, legal fees, incurred by such
other Party by reason of the enforcement and protection of its rights under this
Agreement. The payment of such expenses is in addition to any other relief to
which such other Party may be entitled hereunder or otherwise.
POWDER SUPPLY REQUIREMENTS AGREEMENT Page 18
IN WITNESS WHEREOF, this Agreement has been executed by the duly authorized
representatives of each Party as of the day and year first above written.
XXXX CORPORATION
By:
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Title:
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PRIMEX TECHNOLOGIES, INC.
By:
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Title:
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