<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 8, 2000
REGISTRATION NO. 333-95093
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION STATEMENT
UNDER THE
SECURITIES ACT OF 1933
------------------------
CABOT MICROELECTRONICS CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<S> <C> <C>
DELAWARE 3291 36-4324765
(STATE OR OTHER JURISDICTION OF (PRIMARY STANDARD INDUSTRIAL (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) CLASSIFICATION CODE NUMBER) IDENTIFICATION NUMBER)
</TABLE>
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870 NORTH COMMONS DRIVE
AURORA, ILLINOIS 60504
(630) 375-6631
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
MATTHEW NEVILLE
CABOT MICROELECTRONICS CORPORATION
CHIEF EXECUTIVE OFFICER
870 NORTH COMMONS DRIVE
AURORA, ILLINOIS 60504
(630) 375-6631
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
------------------------
COPIES TO:
<TABLE>
<S> <C>
THOMAS W. CHRISTOPHER, ESQ. DUNCAN C. MCCURRACH, ESQ.
FRIED, FRANK, HARRIS, SHRIVER & JACOBSON SULLIVAN & CROMWELL
ONE NEW YORK PLAZA 125 BROAD STREET
NEW YORK, NEW YORK 10004 NEW YORK, NEW YORK 10004
(212) 859-8000 (212) 558-4000
</TABLE>
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
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If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act,
check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
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If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the registration statement for the same
offering. [ ]
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If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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<CAPTION>
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PROPOSED MAXIMUM
AGGREGATE OFFERING AMOUNT OF
TITLE OF EACH CLASS OF SECURITIES TO BE REGISTERED PRICE(1) REGISTRATION FEE
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<S> <C> <C>
Common Stock, par value $.001 per share..................... $75,000,000 $19,800
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Preferred Share Purchase Rights(2).......................... -- --
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Total....................................................... $75,000,000 $19,800
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</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(o) under the Securities Act of 1933.
(2) The rights will initially trade together with the common stock. The value
attributable to the rights, if any, is reflected in the market price of the
common stock.
------------------------
THE REGISTRANT HEREBY AMENDS THE REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
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<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth expenses and costs payable by Cabot
Microelectronics (other than underwriting discounts and commissions) expected to
be incurred in connection with the issuance and distribution of the securities
described in this registration statement. All amounts are estimated except for
the Securities and Exchange Commission's registration fee and the National
Association of Securities Dealers' filing fee.
<TABLE>
<CAPTION>
AMOUNT
------
<S> <C>
Registration fee under Securities Act....................... $19,800
NASD filing fee............................................. 8,000
Nasdaq National Market fees................................. *
Legal fees and expenses..................................... *
Accounting fees and expenses................................ *
Printing and engraving expenses............................. *
Registrar and transfer agent fees........................... *
Miscellaneous expenses...................................... *
-------
Total............................................. $
=======
</TABLE>
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* To be filed by amendment.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") provides
that a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits and proceedings, whether civil, criminal, administrative, or
investigative (other than an action by or in the right of the corporation -- a
"derivative action"), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) incurred in connection with the
defense or settlement of such action, and the statute requires court approval
before there can be any indemnification where the person seeking indemnification
has been found liable to the corporation. The statute provides that it is not
exclusive of other indemnification that may be granted by a corporation's
certificate of incorporation, bylaws, disinterested director vote, stockholder
vote, agreement, or otherwise.
Our bylaws and our certificate of incorporation require us to indemnify to
the fullest extent authorized by the DGCL any person made or threatened to be
made a party to an action, suit or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that he or she is or was
a director or officer of the Company, or is or was serving at the request of the
Company as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust or other enterprise.
As permitted by section 102(b)(7) of the DGCL, our certificate of
incorporation eliminates the liability of a director to the corporation or its
stockholders for monetary damages for such breach of fiduciary duty as a
director, except for liabilities arising (a) from any breach of the director's
duty of loyalty to the corporation or its stockholders; (b) from acts or
omissions not in good faith or which involve intentional misconduct or a knowing
violation of law; (c) under
II-1
<PAGE> 3
section 174 of the DGCL; or (d) from any transaction from which the director
derived an improper personal benefit.
We intend to obtain primary and excess insurance policies insuring its
directors and officers and those of its subsidiaries against certain liabilities
they may incur in their capacity as directors and officers. Under these
policies, the insurer, on our behalf, may also pay amounts for which we have
granted indemnification to the directors or officers.
Additionally, reference is made to the Underwriting Agreement filed as
Exhibit 1.1 to this registration statement, which provides for indemnification
by our Underwriters, their directors and officers who sign the registration
statement and persons who control us, under certain circumstances.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES.
None.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
(A) Exhibits
The following documents are filed as exhibits to this registration
statement:
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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<C> <S>
1.1 Form of Underwriting Agreement.*
3.1 Certificate of Incorporation of Cabot Microelectronics
Corporation.*
3.2 By-Laws of Cabot Microelectronics Corporation.*
4.1 Form of Cabot Microelectronics Corporation common stock
certificate.*
4.2 Form of Shareholder Rights Agreement.*
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson
regarding the legality of the shares being registered.*
10.1 Form of Master Separation Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.*
10.2 Form of IPO and Distribution Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.*
10.3 Form of Tax Sharing Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.*
10.4 Form of Management Services Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.*
10.5 Fumed Metal Oxide Supply Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.+
10.6 Form of Intellectual Property and Confidentiality Agreement,
between Cabot Microelectronics Corporation and Cabot
Corporation.*
10.7 Form of Trademark License Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.*
10.8 Dispersion Services Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.+
10.9 Form of Employee Matters Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.*
10.10 Form of Registration Rights Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.*
</TABLE>
II-2
<PAGE> 4
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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<C> <S>
10.11 Purchase Agreement between Cabot Corporation and Intel
Corporation.+
10.12 Services Agreement by and among Davies -- Imperial Coatings,
Inc., Cabot Corporation, Donn Davies and JoAnn Davies.+
10.13 Form of Sublease for Barry, Wales facility.*
10.14 2000 Equity Incentive Plan.*
21.1 List of Subsidiaries.*
23.1 Consent of PricewaterhouseCoopers, LLP.**
23.2 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1).*
24.1 Power of Attorney (included on signature page).
27.1 Financial Data Schedule.**
</TABLE>
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* To be filed by amendment.
** Previously filed.
+ Portions of these exhibits have been omitted pursuant to a request for
confidential treatment.
(B) Financial Statement Schedules
Financial statement schedules have been omitted because they are not
applicable or the required information is shown in the combined financial
statements or notes thereto.
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
The undersigned registrant hereby undertakes that:
(1) To provide to the underwriters at the closing specified in the
underwriting agreement certificates in such denominations and registered in such
names as required by the underwriters to permit prompt delivery to each
purchaser.
(2) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(3) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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<PAGE> 5
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Amendment No. 1 to the Registration Statement to be signed
on its behalf by the undersigned, thereunto duly authorized, in the City of
Aurora, State of Illinois, on February 8, 2000.
CABOT MICROELECTRONICS CORPORATION
By: /s/ MATTHEW NEVILLE
------------------------------------
Matthew Neville
President and Chief Executive
Officer
Pursuant to the requirements of the Securities Act, this Amendment No. 1 to
the registration statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
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<C> <S> <C>
Chairman of the Board
*
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Kennett F. Burnes
President and Chief Executive
Officer, Director (Principal
Executive Officer)
/s/ MATTHEW NEVILLE February 8, 2000
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Matthew Neville
Vice President, Chief Financial
Officer and Treasurer (Principal
Financial and Accounting
Officer)
/s/ WILLIAM C. MCCARTHY February 8, 2000
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William C. McCarthy
Director
*
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Samuel W. Bodman
Director
*
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William P. Noglows
*By: /s/ MATTHEW NEVILLE February 8, 2000
----------------------------------
Matthew Neville
Attorney-in-Fact
</TABLE>
II-4
<PAGE> 6
EXHIBITS INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER EXHIBIT DESCRIPTION
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<C> <S>
1.1 Form of Underwriting Agreement.*
3.1 Certificate of Incorporation of Cabot Microelectronics
Corporation.*
3.2 By-Laws of Cabot Microelectronics Corporation.*
4.1 Form of Cabot Microelectronics Corporation common stock
certificate.*
4.2 Form of Shareholder Rights Agreement.*
5.1 Opinion of Fried, Frank, Harris, Shriver & Jacobson
regarding the legality of the shares being registered.*
10.1 Form of Master Separation Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.*
10.2 Form of IPO and Distribution Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.*
10.3 Form of Tax Sharing Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.*
10.4 Form of Management Services Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.*
10.5 Fumed Metal Oxide Supply Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.+
10.6 Form of Intellectual Property and Confidentiality Agreement,
between Cabot Microelectronics Corporation and Cabot
Corporation.*
10.7 Form of Trademark License Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.*
10.8 Dispersion Services Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.+
10.9 Form of Employee Matters Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.*
10.10 Form of Registration Rights Agreement, between Cabot
Microelectronics Corporation and Cabot Corporation.*
10.11 Purchase Agreement between Cabot Corporation and Intel
Corporation.+
10.12 Services Agreement by and among Davies--Imperial Coatings,
Inc., Cabot Corporation, Donn Davies and JoAnn Davies.+
10.13 Form of Sublease for Barry, Wales facility.*
10.14 2000 Equity Incentive Plan.*
21.1 List of Subsidiaries.*
23.1 Consent of PricewaterhouseCoopers, LLP.**
23.2 Consent of Fried, Frank, Harris, Shriver & Jacobson
(included in Exhibit 5.1).*
24.1 Power of Attorney (included on signature page).
27.1 Financial Data Schedule.**
</TABLE>
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* To be filed by amendment.
** Previously filed.
+ Portions of these exhibits have been omitted pursuant to a request for
confidential treatment.
<PAGE> 1
Exhibit 10.5
The omitted portions indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406, promulgated under the Securities Act of 1933, as
amended.
FUMED METAL OXIDE SUPPLY AGREEMENT
This FUMED METAL OXIDE SUPPLY AGREEMENT (this "Agreement"), executed this
20th day of January, 2000, is between Cabot Corporation ("Cabot"), a Delaware
corporation, and Cabot Microelectronics Corporation ("CMC"), a Delaware
corporation. Notwithstanding the execution date hereof, this Agreement shall
become effective upon the date of the initial public offering by CMC of shares
of CMC common stock.
WHEREAS, Cabot and certain of its subsidiaries and CMC will be parties to
a Master Separation Agreement, (the "Master Separation Agreement"), which will
provide, in part, for the separation from Cabot, of the business, assets and
liabilities of the Microelectronics Materials Division of Cabot (the "MMD
Business") and the transfer of the MMD Business to CMC;
WHEREAS, in the past, the Microelectronics Materials Division of Cabot
has purchased various fumed metal oxide products from Cabot;
WHEREAS, CMC desires to have Cabot provide to CMC certain fumed metal
oxide products after the separation of the MMD Business; and
WHEREAS, Cabot desires to provide such fumed metal oxides to CMC after
the separation of the MMD Business;
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
SECTION 1. TERM
This Agreement shall commence on the date of the initial public offering
by CMC of shares of CMC common stock, and shall continue until June 30, 2005
(the "Initial Term"). Unless either party shall give a notice of nonrenewal
prior to December 31, 2003, this Agreement shall continue after the Initial Term
until terminated by either party by a written notice of termination, which shall
terminate this Agreement effective on the first June 30 or December 31 more than
18 months after the date such notice is delivered. The Initial Term, together
with any continuations, are referred to herein as the "Term". Each year of the
Term beginning on the effective date or an anniversary thereof is referred to
herein as a "Term Year", including the stub period, if any, between the last
anniversary of the effective date and the end of the Term.
<PAGE> 2
SECTION 2. PRODUCTS
2.1 Purchase and Sale.
(a) Subject to the terms and conditions of this Agreement, during the
Term, Cabot shall provide to CMC, and CMC shall purchase from Cabot, the
Products (as defined below) in such quantities as specified by CMC, subject to
Sections 2.3 through 2.5 below. "Products" means:
(i) the fumed silica of the types set forth on Schedule A hereto (the
"Fumed Silica"), which shall conform to the specifications,
formulae and processes set forth on Schedule A hereto; and
(ii) the fumed alumina of the types set forth on Schedule B hereto
(the "Fumed Alumina" and together with the Fumed Silica, the
"Fumed Metal Oxides"), which shall conform to the specifications,
formulae and processes set forth on Schedule B hereto.
(b) Any amendment to Schedule A or Schedule B shall require the
consent of both CMC and Cabot. Unless otherwise agreed to by Cabot, any increase
in costs incurred by Cabot in manufacturing Products to comply with changes
requested by CMC to the specifications as set forth on Schedule A or Schedule B
shall be paid by CMC.
2.2 Forecasts.
CMC shall provide Cabot with forecasts (the "Forecasts") of the
quantities of Fumed Metal Oxides that CMC expects to purchase from Cabot (the
"Forecasted Quantities"). The Forecasts shall identify by grade, the Forecasted
Quantities and the Cabot facility or facilities that will produce and deliver to
CMC such Forecasted Quantities (including the volume to be made at each plant).
CMC shall provide the following Forecasts to Cabot:
(a) not more than sixty (60) but not less than thirty (30) days prior
to each January 1, April 1, July 1 and October 1 during the Term, a Forecast
indicating the Forecasted Quantity for each month of the calendar quarter
commencing on such January 1, April 1, July 1 and October 1 (the "Quarterly
Forecast"); provided, however, that in such Quarterly Forecast, the Forecasted
Quantity for any month may not exceed the Forecasted Quantity for the previous
month by more than [ ]%;
(b) not more than sixty (60) but not less than thirty (30) days prior
to each July 1 and January 1 during the Term, a semi-annual Forecast indicating
the Forecasted Quantity for the six (6) month period commencing on such July 1
and January 1 (the "Six Month Forecast");
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<PAGE> 3
(c) not more than sixty (60) but not less than thirty (30) days prior to
each July 1, a one (1) year Forecast indicating the Forecasted Quantity for the
calendar year commencing on the following July 1 (the "Annual Forecast"); and
(d) on or around each July 1, an eighteen (18) month Forecast indicating
the Forecasted Quantity for the eighteen month period commencing on the
following July 1 (the "18 Month Forecast"); provided, however, that CMC shall
provide Cabot with a revised eighteen (18) Month Forecast for the remainder of
the eighteen (18) month period covered by the last 18 Month Forecast as soon
reasonably practicable after CMC becomes aware of any material changes to such
18 Month Forecast.
For the purposes of this Agreement, Forecasts delivered by CMC to Cabot
after the execution hereof shall, upon the effectiveness of this Agreement, be
deemed to have been delivered hereunder.
With respect to planned shutdowns of Cabot's manufacturing facilities,
the parties shall work together and cooperate with each other regarding
necessary adjustments to forecasts and delivery schedules hereunder.
2.3 Cabot's Maximum Supply Obligations.
(a) The obligation of Cabot to supply Products to CMC under this
Agreement shall be subject to each of the following maximum monthly volume
limitations:
(i) the maximum monthly volume of Fumed Silica from Cabot's Tuscola,
Illinois facility (the "Tuscola Plant") shall be [ ] pounds per
month;
(ii) the maximum monthly volume of Fumed Alumina from Cabot's Tuscola,
Illinois pilot facility (the "Tuscola Pilot Plant") shall be [ ]
pounds per month; and
(iii) the maximum monthly volume of Fumed Silica from Cabot's Barry, Wales
facility (the "Barry Plant") shall be [ ] pounds per month.
In clarification of the above, any volumes of Fumed Silica and/or Fumed
Alumina supplied by Cabot under the Dispersions Services Agreement, of
even date herewith, shall not be considered in calculating the maximum
volumes of Fumed Silica and/or Fumed Alumina Cabot is obligated to supply
hereunder.
(b) In addition to the volume limitations set forth in 2.3(a) above, in
the event that CMC orders volumes of fumed silica from Cabot in excess of
Forecasted Quantities, Cabot shall not be obligated to supply to CMC such
Products in excess of the following volumes:
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<PAGE> 4
(i) for any calendar quarter and any plant, [ ]% of the volumes of
Fumed Silica for such plant set forth in CMC's Quarterly Forecast;
(ii) for any calendar half year (beginning on or after July 1, 2000) and
for any plant, [ ]% of the volumes of Fumed Silica for such
plant set forth in CMC's Sixth Month Forecast; and
(iii) for any year beginning July 1 and for any plant, [ ]% of the
volumes of Fumed Silica for such plant set forth in CMC's Annual
Forecast.
(c) The maximum supply obligations set forth in Sections 2.3 (a) and
(b) are referred to herein as the "Maximum Volumes". If CMC shall request
volumes of Fumed Silica or Fumed Alumina in excess of the Maximum Volumes
described above, Cabot shall use commercially reasonable efforts to supply such
volumes ("Excess Volumes"); provided that Cabot shall not be obligated to breach
its contractual obligations with other customers or to take any actions which it
deems detrimental to its business, in order to supply CMC with Excess Volumes.
2.4 Minimum Volumes. CMC shall be obligated to purchase from Cabot
during each six month period covered by a Six Month Forecast a "Minimum Volume,"
meaning at least [ ]% of the aggregate volumes of Fumed Silica forecasted to
be purchased by CMC as set forth in each Six Month Forecast. Cabot and CMC
recognize that damages for CMC's failure to purchase Minimum Volumes would be
difficult to ascertain and prove. Cabot and CMC agree that if, during any six
month period CMC fails to purchase from Cabot the Minimum Volume of Fumed Silica
for such six month period, CMC shall pay to Cabot liquidated damages in an
amount equal to the product obtained by multiplying (i) the difference (in
pounds) between (x) the applicable Minimum Volume and (y) the amount of Fumed
Silica actually purchased by CMC during the relevant six month period times (ii)
$[ ]. Cabot and CMC agree that such liquidated damages are the sole and
exclusive remedy for CMC's failure to purchase Minimum Volumes. Cabot and CMC
further agree that such liquidated damages represent a reasonable estimate of
Cabot's damages and do not constitute a penalty.
2.5 Exclusivity; Exception Thereto.
(a) CMC shall purchase from Cabot all of the Fumed Metal Oxides
necessary to produce the products produced by CMC on the effective date of this
Agreement. With respect to products developed and produced by CMC after the
effective date of this Agreement, CMC shall not be obligated to purchase from
Cabot any of the Fumed Metal Oxides necessary to produce such products.
(b) During the Term of this Agreement, Cabot shall not knowingly,
without CMC's prior written consent, directly or indirectly, sell any Fumed
Metal Oxides to any
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<PAGE> 5
person or entity other than CMC for use in the production of any goods or
products that compete with any CMP (chemical mechanical polishing) consumable
goods and products produced by CMC.
(c) In the event CMC requests a change to a Product specification, which
change is necessary in order to achieve a material performance difference in
CMC's end product, and Cabot is not able or is unwilling to modify such Product,
CMC shall have the right to obtain such modified product from any third party,
subject to any intellectual property rights Cabot may have.
(d) Notwithstanding Section 2.5(a) above, in the event that Cabot fails
to supply CMC with its requirements for Products for any reason, CMC shall have
the right to obtain such Products from any third party, subject to any
intellectual property rights Cabot may have.
SECTION 3. PRICING
3.1 Prices. Cabot shall sell the Products to CMC in accordance with
the following prices (the "Prices"):
(a) Fumed Silica Price.
The price for Fumed Silica shall be equal to the Base Price (as
defined below) plus the Feedstock Adjustment (as defined below). The price of
Fumed Silica to be purchased shall be determined by the date the order therefor
is placed with Cabot, with respect to all volumes specified therein to be
delivered within 90 days after the date such order is placed, and by the date
specified for delivery, with respect to all volumes specified for delivery
thereafter.
The "Base Price" shall be $[ ] per pound during the first Term
Year. The Base Price shall increase by $[ ] per pound for each subsequent
Term Year, to be effective commencing on the first day of each subsequent Term
Year.
The "Feedstock Adjustment" shall be calculated and applied every six (6)
months and is obtained by (i) calculating the difference between the New
Feedstock Cost per pound of fumed silica manufactured (as defined below) and the
Starting Feedstock Cost per pound of fumed silica manufactured (as defined
below) and (ii) dividing this difference by a yield factor of [ ], provided
that if the New Feedstock Cost is less than the Starting Feedstock Cost, the
Feedstock Adjustment shall be zero. The Feedstock Adjustment shall be calculated
and provided to CMC prior to each July1 and January 1 with respect to the
following six (6) month period and shall be based on CMC's Six Month Forecast
for such period as well as the historical feedstock cost information for the
most recent six month period ended May 31 (in the case of the July 1 adjustment)
and
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<PAGE> 6
November 30 (in the case of the January 1 adjustment).
The "New Feedstock Cost" shall be derived from the following formula:
New Feedstock Cost = [ ]
Where:
A = pounds of [ ] forecasted to be purchased by CMC in
the upcoming [ ] from the [ ].
B = pounds of [ ] forecasted to be purchased by CMC in
the upcoming [ ] from the [ ].
C = Total "Delivered Cost" of all [ ] consumed in the
manufacture of [ ] at the [ ] during the
[ ] divided by the total number of
pounds of [ ] produced at the [ ] (other than
[ ] which was toll manufactured), including off-quality
material. As used herein, the "Delivered Cost" of [ ]
means the purchase price paid by Cabot for such [ ],
including transportation costs and applicable sales and use taxes
as well as price adjustments related solely to the [ ],
and excluding [ ] adjustments or credits and handling costs,
labor and depreciation.
D = Total "Delivered Cost" of all [ ] consumed in the
manufacture of [ ] at the [ ] during the
[ ] divided by the total number of
pounds of [ ] produced at the [ ] (other than
[ ] which was toll manufactured), including off-quality
material.
The "Starting Feedstock Cost" shall equal the total "Delivered Cost" of
all [ ] consumed at the [ ] and [ ] during [ ] divided by the
total number of pounds of [ ] produced at the [ ] and [ ] (other
than [ ] which was toll manufactured), including off-quality material,
during such period.
CMC shall have the right to have a recognized accounting firm audit the
books and records of Cabot necessary to verify the Feedstock Adjustment provided
above. Such accounting firm shall be obligated to keep any information obtained
during
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the audit of Cabot's books and records confidential and may confirm to CMC only
whether, and to what extent, Cabot's calculations of the Feedstock Adjustment
deviate from the calculation of such accounting firm.
(b) Excess Volumes of Fumed Silica. The price for Excess Volumes of
Fumed Silica shall be as follows:
(1) Subject to Section 2.3(c) above, if Cabot has the
production capacity to produce the Excess Volumes of Fumed Silica at the times
and in the volumes requested by CMC without interfering with its supply of
products for other customers, Cabot shall produce such Excess Volumes and sell
them to CMC at the prices set forth in Section 3.1(a) hereof.
(2) Subject to Section 2.3(c) above, if Cabot would be required
to displace volumes intended for other customers, otherwise interfere with its
supply of products to other customers or obtain Products from other sources in
order to meet a request of CMC in respect of Excess Volumes of Fumed Silica, the
price for such Excess Volumes shall be determined by Cabot, provided that such
price shall not exceed [ ].
(c) Fumed Alumina Price.
Until Cabot shall begin commercial scale production of fumed alumina, the
price for fumed alumina shall be equal to $[ ] per pound. For purposes of
this agreement, "commercial scale production of fumed alumina" shall mean Cabot
having a fumed alumina production unit capable of producing fumed alumina at a
production rate greater than [ ] per year. Upon commencement by Cabot of
such commercial scale production of fumed alumina, Cabot and CMC shall
renegotiate the price per pound of Fumed Alumina.
(d) In addition to the above described purchase prices for the fumed
metal oxides, MMD shall reimburse Cabot for all reasonable costs incurred by
Cabot in conducting analytical services requested by CMC for [ ].
3.2 Cost Savings. Cabot and CMC acknowledge that it is their intention
to decrease the costs associated with manufacturing the Products, and to share
any cost savings resulting from joint efforts equally between them (other than
cost savings with respect to packaging, which the parties agree shall not be
passed on to CMC). Cabot and CMC agree to discuss, from time to time, ways to
jointly decrease such costs.
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<PAGE> 8
SECTION 4. ORDERS, SHIPPING, DELIVERY AND PAYMENT
(a) Orders for Products shall be issued by CMC from time to time. Each
order shall specify the date(s) the products are to be delivered, which date(s)
shall be not less than ten (10) business days prior to the date the order is
received by Cabot. For purposes of applying 2.3 and 2.4 only, each volume of
Product shall be deemed to be in the month specified for its shipment in CMC's
order; and if no date is specified, then in the month following the month in
which the order therefor is issued by CMC.
(b) All sales of Products under this agreement are made F.O.B. Cabot's
point of shipment. CMC shall be responsible for all transportation costs and
title and risk of loss shall pass to CMC upon delivery to carrier.
(c) All Products shall be prepared by Cabot for delivery to CMC, as
the case may be, including the necessary dunnage, to prevent damage during the
normal course of transportation.
(d) Cabot shall invoice CMC for the Products delivered to CMC during
each month by the fifteenth (15th) calendar day of the following month. Cabot
shall deliver such invoices to CMC by regular U.S. mail, or other methods such
as express U.S. mail, overnight courier or other means, if mutually acceptable.
(e) CMC shall pay each such invoice within fifteen (15) calendar days
of receipt thereof. Such payment shall be made by check or wire transfer in
readily available same day or next day funds denominated in United States
dollars. If payment is to be made by wire transfer, CMC shall request and Cabot
shall provide to CMC, wire transfer instructions.
SECTION 5. WARRANTIES
5.1 Warranty as to Products. Cabot represents and warrants to CMC
that, when shipped to CMC, the Products will conform in all respects to the
specifications then in effect and as then set forth in the materials specified
on Schedule A and Schedule B hereto. CABOT MAKES NO OTHER REPRESENTATION OR
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR ANY OTHER MATTER WITH RESPECT TO THE PRODUCTS, WHETHER
USED ALONE OR IN COMBINATION WITH OTHER SUBSTANCES, EVEN IF THE PURPOSES OR USES
OF SUCH PRODUCTS ARE KNOWN BY CABOT.
5.2 Remedies. If any Products do not conform in all respects to the
specifications then in effect and as then set forth on Schedule A and Schedule B
hereto, Cabot agrees to replace such Products with Products that conform to such
specifications.
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<PAGE> 9
Subject to the following sentence, CMC shall not be obligated to accept or pay
for Products that do not conform to the specifications then in effect for such
Products. If any such non-conformity is the result of materials, process
specifications or formulae provided by CMC to Cabot, CMC shall pay Cabot for the
Products and such volumes shall be included in determining the volumes of
Products delivered by Cabot to CMC hereunder. IN NO EVENT SHALL CABOT BE
RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
ARISING AS A RESULT OF ANY BREACH OF WARRANTY IN RESPECT OF ANY PRODUCTS UNDER
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 6. CONSENTS; NOTICES
Unless otherwise set forth herein, whenever any notice, consent or
approval is to be given in this Agreement, it must be in writing and delivered
in accordance with the provisions of this Section 6. Any such writing will be
duly given upon delivery, if delivered by hand, facsimile transmission or mail,
to the following addresses:
If to Cabot: Cabot Corporation
Business and Technical Center
Billerica, MA 01821
Attn: Fumed Metal Oxide Product Line Manager
Telecopier:
With a copy to:
Cabot Corporation
75 State Street
Boston, MA 02109
Attn: Law Department
Telecopier: 617-342-6039
If to CMC: Cabot Microelectronics Corporation
870 North Commons Drive
Aurora, IL 60504
Attn: Vice President of Operations
Telecopier: 630-375-5596
or to such other address as may be designated in writing by any of the parties
from time to time in accordance herewith.
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<PAGE> 10
SECTION 7. GENERAL
7.1 Severability. If any provision of this Agreement shall be found to
be invalid or unenforceable, then such provision or provisions shall not
invalidate or in any way affect the enforceability of the remainder of this
Agreement and such provision or provisions shall be curtailed and limited to the
extent necessary to bring the Agreement within any legal requirement and the
parties shall negotiate in good faith with respect to an equitable modification
of the provision or application thereof held to be invalid.
7.2 Modification; Waivers. Except as expressly provided herein, this
Agreement may be modified or amended only with the written consent of each party
hereto. Neither party hereto shall be released from its obligations hereunder
without the written consent of the other party. The observance of any term of
this Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) by the party entitled to enforce such
term, but any such waiver shall be effective only if in a writing signed by the
party against which such waiver is to be asserted. Except as otherwise
specifically provided herein, no delay on the part of either party hereto in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of either party hereto of any right,
power or privilege hereunder operate as a waiver of any other right, power or
privilege hereunder nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.
7.3 Succession. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and other
legal representatives and, to the extent that any assignment hereof is permitted
hereunder, their assignees.
7.4 Counterparts. This Agreement may be executed in counterparts.
7.5 Further Assurances. Each party agrees to provide any additional
documents and take any such further action as may be reasonably requested by the
other party in order to carry out the purpose and intent of this Agreement.
7.6 Entire Agreement. This Agreement contains the full and complete
undertaking and agreement between the parties hereto with respect to the sale of
fumed silica and fumed alumina by Cabot to CMC, and supersedes all other
agreements between Cabot and CMC, whether written or oral, except any
confidentiality agreements between the parties, which shall, to the extent such
agreements do not contradict the terms of this Agreement, continue in effect.
7.7 Headings. The headings of the sections and other subdivisions of
this Agreement are for convenient reference only. They shall not be used in any
way to
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<PAGE> 11
govern, limit, modify, construe this Agreement or any part or provision
thereof nor otherwise be given any legal effect.
7.8 Assignees and Third Parties. This Agreement may not be assigned by
either party without the prior written consent of the other party and any
attempted assignment without such consent shall be null and void; provided,
however, that Cabot may assign this Agreement to a subsidiary or affiliated
company. In addition, Cabot may make arrangements for the production and sale of
Products required hereunder to be manufactured and sold by a subsidiary or an
affiliate, including but not limited to Cabot Carbon Ltd. Such arrangements may
take the form of an assignment of certain rights and obligations hereunder or a
subcontract of certain obligations hereunder. Similarly, CMC may make
arrangements for the purchase of Products hereunder to be made by a subsidiary,
including but not limited to Cabot Microelectronics International Corporation.
Such arrangements may take the form of an assignment of certain rights and
obligations hereunder. However, all sales of Products pursuant to any such
arrangement shall be governed by the terms of this Agreement.
7.9 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of Delaware, without giving effect to
principles of conflicts or choice of laws of Delaware or of any other
jurisdiction.
7.10 Force Majeure. Each of the parties hereto shall be excused from
delays in performing or from failure to perform hereunder to the extent that
such delays or failures result from causes beyond the reasonable control of such
party, including, but not limited to, forces of nature, acts of God, strikes,
lockouts, wars, blockades, insurrections, riots, epidemics, restraints or
requirements of any government or government agency, civil disturbances,
explosions, breakage or accident to machinery or lines of pipe, unavailability
of raw material or supplies, strandings, perils of the sea, the binding order of
any court or governmental authority which has been resisted in good faith by all
reasonable means, and other cause, whether of the kind enumerated or otherwise,
not reasonably within the control of the party claiming suspension. Failure to
prevent or settle any strike shall not be considered to be a matter within the
control of the party claiming suspension. However, in order to be excused from
delay or failure to perform, such party must act diligently to remedy the cause
of such delay or failure.
7.11 Confidentiality. Each of Cabot and CMC agree to keep confidential
and not disclose, and shall cause their respective subsidiaries and affiliates
to keep confidential and not disclose, to any party or use for any purpose
(other than the performance of this Agreement), any proprietary or other
confidential information of the other party which is received pursuant to this
Agreement ("Confidential Information"). Confidential Information shall be
subject to the restrictions of this paragraph only if it is marked as
confidential or proprietary or, if not disclosed in tangible form, the
disclosing party
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<PAGE> 12
notifies the recipient of its confidential or proprietary nature prior to its
disclosure. For purposes of this Agreement, Confidential Information of a party
does not include, and a party and a party's subsidiaries and affiliates will
have no obligations under this provision with respect to, any information of the
other party or any subsidiary or affiliate of the other party (the other party
and subsidiaries and affiliates of the other party being referred to as the
"receiving party") which:
(i) is already known to the receiving party from a source other than
the disclosing party as evidenced by competent proof thereof; or
(ii) is or becomes publicly known through no wrongful act of the
receiving party (in which event the receiving party's obligations under this
Agreement in respect thereto shall terminate on the date such information enters
the public domain); or
(iii) is rightfully received by the receiving party from a third party
without violation of any obligations of confidentiality owed by the third party
to the disclosing party; or
(iv) is disclosed by the disclosing party to a third party without
restrictions on the third party's right to use or disclose such information; or
(v) is independently developed by employees or consultants of the
receiving party without use of or reference to the disclosing party's
Confidential Information; or
(vi) is approved for release by written authorization of the disclosing
party
7.12 Independent Contractors. CMC and Cabot are each independent
contractors. Nothing herein contained shall be construed to place CMC and Cabot
in the relationship of principal and agent, master and servant, partners, or
joint venturers, and, except as otherwise set forth in this Agreement, neither
party shall have, expressly or by implication, the power to represent itself as
having any authority to make contracts in the name of or binding upon the other,
or to obligate or bind the other in any manner whatsoever.
7.13 Resale Prohibition. The parties intend and agree that the fumed
silica and fumed alumina being sold hereunder to CMC is being sold solely for
the use by CMC and its subsidiaries in manufacturing their products.
Accordingly, CMC and its subsidiaries are prohibited from reselling any fumed
silica or fumed alumina purchased hereunder. However, in the event CMC
determines, in good faith, that the fumed metal oxides supplied hereunder, which
otherwise meet the specification set forth in Scheduled A or B, but which are
not fit for CMC's use in the manufacture of CMP slurries, CMC shall have the
right to resell such fumed metal oxides, provided, CMC first offers Cabot the
option to purchase such fumed metal oxides back from CMC at a price which is the
lower of (i) the price paid by CMC to Cabot for such material, or (ii) the price
at which CMC will resell such material.
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<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as a sealed instrument and have delivered this Agreement as of the day and year
first above written.
CABOT CORPORATION
By: /s/ Samuel W. Bodman
-----------------------------------------
Name: Samuel W. Bodman
Title: Chief Executive Officer
CABOT MICROELECTRONICS CORPORATION
By: /s/ Matthew Neville
-----------------------------------------
Name: Matthew Neville
Title: President and
Chief Executive Officer
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<PAGE> 14
Schedule A
Fumed Silica Specifications
Product Specification
- ------- -------------
[ ] [ ]
[ ] [ ]
[ ] [ ]
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<PAGE> 15
Schedule B
Fumed Alumina Specifications
Product Specification
- ------- -------------
[ ] [ ]
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<PAGE> 1
Exhibit 10.8
The omitted portions indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406, promulgated under the Securities Act of 1933, as
amended.
DISPERSION SERVICES AGREEMENT
This DISPERSION SERVICES AGREEMENT (the "Agreement"), executed this 20th
day of January, 2000, is between Cabot Corporation ("Cabot"), a Delaware
corporation, and Cabot Microelectronics Corporation ("CMC"), a Delaware
corporation. Notwithstanding the execution date hereof, this Agreement shall
become effective upon the date of the initial public offering by CMC of shares
of CMC common stock.
WHEREAS, Cabot and certain of its subsidiaries and CMC will be parties to
a Master Separation Agreement, (the "Master Separation Agreement"), which will
provide for the separation from Cabot of the business, assets and liabilities of
Microelectronics Materials Division of Cabot (the "MMD Business") and the
transfer of the MMD Business to CMC;
WHEREAS, in the past, the Microelectronics Materials Division of Cabot
has performed various dispersion services for Cabot;
WHEREAS, Cabot desires to have CMC provide to Cabot certain dispersion
services after the separation of the MMD Business; and
WHEREAS, CMC desires to provide such dispersion services to Cabot as
provided herein;
NOW, THEREFORE, in consideration of the foregoing premises and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
SECTION 1. TERM
This Agreement shall commence on the date of the initial public offering
by CMC of shares of CMC common stock, and shall continue until June 30, 2005
(the "Initial Term"). Unless either party shall give a notice of nonrenewal
prior to December 31, 2003, this Agreement shall continue after the Initial Term
until terminated by either party by a written notice of termination, which shall
terminate this Agreement effective on the first June 30 or December 31 more than
18 months after the date such notice is delivered. The Initial Term, together
with any continuations, are referred to herein as the "Term". Each year of the
Term beginning on the effective date or an anniversary thereof is referred to
herein as a "Term Year", including the stub period, if any, between the last
anniversary of the effective date and the end of the Term.
<PAGE> 2
SECTION 2. SERVICES
2.1 Purchase and Sale.
(a) Subject to the terms and conditions of this Agreement, during the
Term, CMC shall provide to Cabot, and Cabot shall purchase from CMC, the
Services (as defined below) in such quantities as specified by Cabot, subject to
Sections 2.3 through 2.6 below. "Services" means:
(i) the manufacturing and packaging of the type of dispersions set
forth on Schedule A hereto (the "Products") in accordance with the
specifications, formulae and processes provided by Cabot to CMC
and initially as set forth in the materials specified on Schedule
A hereto;
(ii) the packaging of the Products in accordance with specifications
set forth on Schedule A, which may be amended from time to time,
by mutual agreement; and
(iii) testing and other ancillary services as related thereto as may be
mutually agreed between Cabot and CMC from time to time.
(b) Any amendment to Schedule A shall require the consent of both CMC
and Cabot. Any increase in costs incurred by CMC in manufacturing and/or
packaging Products to comply with changes requested by Cabot to the
specifications as set forth on Schedule A shall be paid by Cabot.
(c) With respect to Products to be sold to customers of Cabot and/or
its subsidiaries which are located in the United States, Canada or Mexico
(collectively "North America"), Services shall be performed either by (i) CMC at
its facility in Aurora, Illinois (the "Aurora Plant"), or (ii) Davies Imperial
Coatings ("Davies"), pursuant to an agreement between CMC and Davies (the
"Davies Agreement"); provided that CMC shall continue to remain primarily liable
to Cabot for any Services provided by Davies. Cabot and CMC shall confer in good
faith in order to determine whether Services will be provided by the Aurora
Plant or Davies.
(d) With respect to Products to be sold to customers of Cabot and/or
its subsidiaries located in Europe, Services shall be performed at the
dispersions facility of Cabot Microelectronics International Corporation
("CMIC"), a wholly owned subsidiary of CMC, in Barry, Wales (the "Barry Plant").
(e) With respect to Products to be sold to customers of Cabot and/or
its subsidiaries located in regions other than North America or Europe, CMC
shall determine
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<PAGE> 3
the appropriate facility to perform such Services after review of its regional
capacity and capabilities and after consultation with Cabot.
(f) Notwithstanding anything to the contrary in subsections (c) and
(d) above, and subject to 2.3(a)(i), Cabot may specify Products to be
manufactured at the Aurora Plant, regardless of the ultimate geographic market
for such Products, provided that such Products would not be incompatible with
the dispersions manufacturing capabilities at the Aurora Plant or that such
Products would not create contamination issues with respect to the products CMC
manufactures at its Aurora Plant.
2.2 Forecasts.
Cabot shall provide CMC with forecasts (the "Forecasts") of the
quantities of Products that Cabot expects to purchase from CMC (the "Forecasted
Quantities"). The Forecasts shall identify the Forecasted Quantities of the
Products and the geographic locations for manufacture (i.e., the Aurora Plant,
Davies or the Barry Plant). Cabot shall provide the following Forecasts to CMC:
(a) not more than sixty (60) but not less than thirty (30) days prior
to each January 1, April 1, July 1 and October 1 during the Term, a Forecast
indicating the Forecasted Quantity for each month of the calendar quarter
commencing on such January 1, April 1, July 1 and October 1 (the "Quarterly
Forecast");
(b) not more than sixty (60) but not less than thirty (30) days prior
to on each July 1 and January 1 during the Term, a semi-annual Forecast
indicating the Forecasted Quantity for the six (6) month period commencing on
such July 1 and January 1 (the "Six Month Forecast");
(c) not more than sixty (60) but not less than thirty (30) days prior
to on each July 1, a one (1) year Forecast indicating the Forecasted Quantity
for the calendar year commencing on the following July 1 (the "Annual
Forecast"); and
(d) on or around each July 1, an eighteen (18) month Forecast
indicating the Forecasted Quantity for the eighteen month period commencing on
the July 1 (the "18 Month Forecast"); provided, however, that Cabot shall
provide CMC with a revised eighteen (18) Month Forecast for the remainder of the
eighteen (18) month period covered by the last 18 Month Forecast as soon
reasonably practicable after Cabot becomes aware of any material changes to such
18 Month Forecast.
For the purposes of this Agreement, Forecasts delivered by Cabot to CMC
after the execution hereof shall, upon the effectiveness of this Agreement, be
deemed to have been delivered hereunder.
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<PAGE> 4
2.3 CMC's Maximum Supply Obligations.
(a) The obligation of CMC to provide Products to Cabot shall be
subject to each of the following maximum monthly volume limitations:
(i) the maximum monthly volume of Products from CMC's Aurora, Illinois
facility (the "Aurora Plant") shall be [ ] gallons per month;
(ii) the maximum monthly volume of Products from Davies' Hammond, Indiana
facility (the "Hammond Plant") shall be [ ] gallons per month; and
(iii) the maximum monthly volume of Products from the Barry Plant shall be
[ ] gallons per month.
(b) In addition to the volume limitations set forth in 2.3(a) above,
in the event that Cabot orders volumes of Products from CMC in excess of
Forecasted Quantities, CMC shall not be obligated to supply to Cabot such
Products in excess of the following volumes:
(i) for any calendar quarter and any plant, [ ]% of the volumes
for such plant set forth in Cabot's Quarterly Forecasts;
(ii) for any calendar half year (beginning on or after July 1, 2000)
and any plant, [ ]% of the volumes for such plant set forth in Cabot's Sixth
Month Forecast; and
(iii) for any year beginning July 1 and any plant, [ ]% of the
volumes for such plant set forth in Cabot's Annual Forecast.
(c) The maximum supply volumes set forth in Sections 2.3 (a) and (b)
are referred to herein as the "Maximum Volumes". If Cabot shall order volumes of
Products in excess of the Maximum Volumes described above, CMC shall use
commercially reasonable efforts to supply such volumes ("Excess Volumes").
(d) Notwithstanding anything to the contrary in subsections (a) or (b)
above, if CMC shall increase its production capacity at its current dispersions
plants or at newly acquired or constructed dispersions plants, Cabot and CMC
shall negotiate in good faith regarding additional dispersions capacity that may
be available to Cabot and the price for dispersions services related to such
additional capacity.
2.4 Minimum Order Volumes.
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Cabot agrees to order Products from CMC subject to the minimum
batch size requirements set forth on Schedule A hereto.
2.5 Exclusivity.
(a) Except in connection with its [ ] businesses, and subject to
other existing obligations, during the Term Cabot will not contract with any
third party (other than Cabot affiliates, CMC, CMIC or Davies) for the provision
of contract or toll manufacturing services for the production of fumed metal
oxide dispersions.
(b) Notwithstanding subsection (a) above or subsection (c) below:
(i) Cabot shall have the right during the Term to produce fumed metal
oxide dispersions for sale, its own use or the sale or use of its
subsidiaries;
(ii) if CMC or Davies is unable or unwilling to supply certain products
or volumes in accordance with the terms hereof, or above the
Maximum Volumes set forth in Section 2.3 hereof, Cabot shall have
the right to have such products or additional volumes of
dispersions manufactured for it by other parties;
(iii) In the event Cabot requests a change to the specifications,
formulae or processes set forth on Schedule A, which change is
necessary in order to achieve a material performance difference in
Cabot's end product, and CMC is not able or is unwilling to modify
such Product, Cabot shall have the right to have such changed
products manufactured for it by any other party; and
(iv) Cabot shall have the right to contract for and purchase from third
parties fumed metal oxide dispersions that are produced with fumed
metal oxides that are not supplied by Cabot.
(c) If Cabot terminates this Agreement, Cabot shall, for a period of [
] following the date of such termination purchase fumed metal oxide dispersions
products and services only from CMC, Davies or third parties who are not engaged
in the production and/or marketing of CMP (chemical mechanical polishing)
consumables.
(d) During the Term of this Agreement, CMC shall not knowingly,
without Cabot's prior written consent, directly or indirectly, (i) perform
dispersions services for any person or entity other than Cabot for use in the
production of any goods or products that compete with any Cabot products, or
(ii) sell fumed metal oxide dispersions products into applications, other than
CMP applications, which compete with any Cabot product.
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<PAGE> 6
2.6 Supply of Raw Materials
Cabot shall be responsible for the supply to CMC of the fumed metal oxide
particles necessary for the manufacture of the Products ordered by Cabot. Any
such volumes of fumed metal oxides shall not be deemed supplied pursuant to the
Fumed Metal Oxide Supply Agreement, of even date herewith. CMC shall be
responsible for the supply of all other materials necessary for the manufacture
of the Products, including packaging materials.
SECTION 3. PRICING
3.1 Prices. CMC shall perform the Services and sell the Products in
accordance with the following prices (the "Prices"):
(a) with respect to Products manufactured and the services performed
by CMC, the price shall equal the "Dispersion Manufacturing Cost" incurred by
CMC plus [ ]% of such Dispersion Manufacturing Cost. As used herein, the
"Dispersion Manufacturing Cost" of fumed metal oxide dispersions shall mean,
[ ]. CMC's [ ] may be used for calculating such Dispersion
Manufacturing Cost, provided that both parties mutually agree that it fairly
approximates the above stated Dispersion Manufacturing Cost, and that both
parties mutually agree upon a method to make adjustments due to variances
between the [ ] and the actual Dispersion Manufacturing Cost.
(b) with respect to Products manufactured and the services performed
by Davies, the price shall equal the Dispersion Manufacturing Cost incurred by
CMC (excluding the costs of the fumed metal oxide particle supplied by Cabot)
plus [ ]% of such costs as an administrative charge.
Cabot shall have the right to have a recognized accounting firm audit the
books and records of CMC necessary to verify the Dispersions Manufacturing Cost
provided above. Such accounting firm shall be obligated to keep any information
obtained during the audit of CMC's books and records confidential and may
confirm to Cabot only whether, and to what extent, CMC's calculations of the
Dispersions Manufacturing Cost deviate from the calculation of such accounting
firm.
3.2 Cost Savings. Cabot and CMC acknowledge that it is their intention
to decrease the costs associated with manufacturing the Products, and to share
any cost
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<PAGE> 7
savings resulting from joint efforts therefrom equally between them. Cabot and
CMC agree to discuss, from time to time, ways to jointly decrease such costs.
SECTION 4. SHIPPING, DELIVERY AND PAYMENT
(a) Orders for Products shall be issued by Cabot from time to time.
Each order shall specify the date(s) the Products are to be delivered, which
date(s) shall be not less than ten (10) business days prior to the date the
order is received by CMC. For purposes of applying Section 2.3 only, each volume
of Product shall be deemed to be in the month specified for its shipment in
Cabot's order; and if no date is specified, then in the month following the
month in which the order therefor is issued by Cabot.
(b) All sales of Products under this agreement are made F.O.B. CMC's
point of shipment. Cabot shall be responsible for all transportation costs and
title and risk of loss shall pass to Cabot upon delivery to carrier.
(c) All Products shall be prepared by CMC for delivery to Cabot in
accordance with Cabot's reasonable instructions to be supplied by Cabot to CMC
as far in advance of, and not later than ten (10) business days prior to, a
requested shipment date.
(d) CMC shall invoice Cabot for the Products delivered to Cabot during
each month by the fifteenth (15th) calendar day of the following month. CMC
shall deliver such invoices to Cabot by regular U.S. mail, or other methods such
as express U.S. mail, overnight courier or other means, if mutually acceptable.
(e) Cabot shall pay each such invoice within fifteen (15) calendar
days of receipt thereof. Such payment shall be made by check or wire transfer in
readily available same day or next day funds denominated in United States
dollars. If payment is to be made by wire transfer, Cabot shall request and CMC
shall provide to Cabot, wire transfer instructions.
SECTION 5. WARRANTIES
5.1 Warranty as to Products. CMC represents and warrants to Cabot
that, when delivered to Cabot, the Products and Services will conform in all
respects to the specifications then in effect and as then set forth in the
materials specified on Schedule A hereto. CMC MAKES NO OTHER REPRESENTATION OR
WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE OR ANY OTHER MATTER WITH RESPECT TO THE PRODUCTS OR SERVICES,
WHETHER USED ALONE OR IN COMBINATION WITH OTHER SUBSTANCES, EVEN IF THE PURPOSES
OR USES OF SUCH PRODUCTS ARE KNOWN BY CMC.
-7-
<PAGE> 8
5.2 Remedies. If any Products do not conform in all respects to the
specifications then in effect and as then set forth on Schedule A hereto, CMC
agrees to replace such Products with Products that conform to such
specifications. Subject to the following sentence, Cabot shall not be obligated
to accept or pay for Products not conforming to the specifications then in
effect for such Products. If such non-conformity is the result of materials or
formulae provided by Cabot to CMC, Cabot shall pay CMC for the Services and such
volumes shall be included in determining the volumes of Products delivered by
CMC to Cabot hereunder. IN NO EVENT SHALL CMC BE RESPONSIBLE OR LIABLE FOR ANY
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING AS A RESULT OF ANY BREACH
OF WARRANTY IN RESPECT OF ANY PRODUCTS OR SERVICES UNDER THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 6. RELATIONSHIP OF PARTIES
(a) CMC and Cabot are each independent contractors. Nothing herein
contained shall be construed to place CMC and Cabot in the relationship of
principal and agent, master and servant, partners, or joint venturers, and,
except as otherwise set forth in this Agreement, neither party shall have,
expressly or by implication, the power to represent itself as having any
authority to make contracts in the name of or binding upon the other, or to
obligate or bind the other in any manner whatsoever.
(b) Cabot recognizes and agrees that certain dispersions services
shall be performed on CMC's behalf by Davies. However, such services by Davies
shall be considered to have been subcontracted by CMC to Davies, and ultimate
responsibility for the performance of such services shall remain with CMC. Cabot
shall have no direct contractual relationship with Davies with respect to
dispersion services obtained by CMC pursuant to this Agreement.
SECTION 7. INTELLECTUAL PROPERTY AND CONFIDENTIALITTY
(a) Any intellectual property relating to the process engineering or
method of production of dispersions ("Dispersions Intellectual Property")
developed by CMC or CMIC principally in the course of performing Services for
Cabot hereunder shall be jointly owned by Cabot and either CMC or CMIC, as the
case may be. Notwithstanding the above, Cabot shall not sublicense or assign
such intellectual property to any party (other than a subsidiary or affiliate of
Cabot) for use in the production and/or sale of CMP consumables. Similarly, CMC
shall not sublicense or assign such intellectual property to any party (other
than a subsidiary or affiliate of CMC) for use in the production and/or sale of
products for use in non-CMP applications.
(b) CMC or CMIC shall, upon the request of Cabot, grant a
non-exclusive license to Cabot, in exchange for a commercially reasonable
royalty payment from Cabot
-8-
<PAGE> 9
to CMC or CMIC, as the case may be, to be mutually agreed between the
appropriate parties, any Dispersions Intellectual Property developed by CMC or
CMIC other than in the performance of Services but which is used by CMC or CMIC
in the production of Products. Notwithstanding the above, Cabot shall not
sublicense or assign such intellectual property to any party (other than a
subsidiary or affiliate of Cabot) for use in the production and/or sale of CMP
consumables.
(c) CMC and CMIC shall use their commercially reasonable best efforts,
including by seeking to have included in the Davies Agreement appropriate
provisions, to have Davies bound by the provisions of subsections (a) and (b)
above to the same extent as CMC and CMIC.
(d) Each of Cabot and CMC agree to keep confidential and not disclose,
and shall cause their respective subsidiaries and affiliates to keep
confidential and not disclose, to any party or use for any purpose (other than
the performance of this Agreement), any proprietary or other confidential
information of the other party which is received pursuant to this Agreement
("Confidential Information"). Confidential Information shall be subject to the
restrictions of this paragraph only if it is marked as confidential or
proprietary or, if not disclosed in tangible form, the disclosing party notifies
the recipient of its confidential or proprietary nature prior to its disclosure.
For purposes of this Agreement, Confidential Information of a party does not
include, and a party and a party's subsidiaries and affiliates will have no
obligations under this provision with respect to, any information of the other
party or any subsidiary or affiliate of the other party (the other party and
subsidiaries and affiliates of the other party being referred to as the
"receiving party") which:
(i) is already known to the receiving party from a source other than
the disclosing party as evidenced by competent proof thereof; or
(ii) is or becomes publicly known through no wrongful act of the
receiving party (in which event the receiving party's obligations under this
Agreement in respect thereto shall terminate on the date such information enters
the public domain); or
(iii) is rightfully received by the receiving party from a third party
without violation of any obligations of confidentiality owed by the third party
to the disclosing party; or
(iv) is disclosed by the disclosing party to a third party without
restrictions on the third party's right to use or disclose such information; or
(v) is independently developed by employees or consultants of the
receiving party without use of or reference to the disclosing party's
Confidential Information; or
(vi) is approved for release by written authorization of the disclosing
party
-9-
<PAGE> 10
SECTION 8. CONSENTS; NOTICES
Unless otherwise set forth herein, whenever any notice, consent or
approval is to be given in this Agreement, it must be in writing and delivered
in accordance with the provisions of this Section 8. Any such writing will be
duly given upon delivery, if delivered by hand, facsimile transmission or mail,
to the following addresses:
If to Cabot: Cabot Corporation
Business and Technical Center
Billerica, MA 01821
Attn: Fumed Metal Oxide Product Line Manager
Telecopier:
With a copy to:
Cabot Corporation
75 State Street
Boston, MA 02109
Attn: Law Department
Telecopier: 617-342-6039
If to CMC: Cabot Microelectronics Corporation
870 North Commons Drive
Aurora, IL 60504
Attn: Global Manufacturing Manager
Telecopier: 630-375-5596
or to such other address as may be designated in writing by any of the parties
from time to time in accordance herewith.
SECTION 9. GENERAL
9.1 Severability. If any provision of this Agreement shall be found to
be invalid or unenforceable, then such provision or provisions shall not
invalidate or in any way affect the enforceability of the remainder of this
Agreement and such provision or provisions shall be curtailed and limited to the
extent necessary to bring the Agreement within any legal requirement and the
parties shall negotiate in good faith with respect to an equitable modification
of the provision or application thereof held to be invalid.
9.2 Modification; Waivers. Except as expressly provided herein, this
Agreement may be modified or amended only with the written consent of each party
hereto. Neither party hereto shall be released from its obligations hereunder
without the
-10-
<PAGE> 11
written consent of the other party. The observance of any term of this Agreement
may be waived (either generally or in a particular instance and either
retroactively or prospectively) by the party entitled to enforce such term, but
any such waiver shall be effective only if in a writing signed by the party
against which such waiver is to be asserted. Except as otherwise specifically
provided herein, no delay on the part of either party hereto in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any waiver on the part of either party hereto of any right, power or privilege
hereunder operate as a waiver of any other right, power or privilege hereunder
nor shall any single or partial exercise of any right, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, power or privilege hereunder.
9.3 Succession. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and other
legal representatives and, to the extent that any assignment hereof is permitted
hereunder, their assignees.
9.4 Counterparts. This Agreement may be executed in counterparts.
9.5 Further Assurances. Each party agrees to provide any additional
documents and take any such further action as may be reasonably requested by the
other party in order to carry out the purpose and intent of this Agreement.
9.6 Entire Agreement. This Agreement contains the full and complete
undertaking and agreement between the parties hereto with respect to the
manufacture and supply of fumed metal oxide dispersions, and supersedes all
other agreements between Cabot, on the one hand, and CMC, on the other, whether
written or oral except any confidentiality agreements between the parties, which
shall, to the extent such agreements do not contradict the terms of this
Agreement, continue in effect.
9.7 Headings. The headings of the sections and other subdivisions of
this Agreement are for convenient reference only. They shall not be used in any
way to govern, limit, modify, construe this Agreement or any part or provision
thereof nor otherwise be given any legal effect.
9.8 Assignees and Third Parties. This Agreement may not be assigned by
either party without the prior written consent of the other party and any
attempted assignment without such consent shall be null and void; provided,
however, that Cabot may assign this Agreement to a subsidiary or affiliated
company. In addition, CMC may make arrangements for the production and sale of
Services and Products required hereunder to be manufactured and sold by a
subsidiary or an affiliate, including but not limited to Cabot Microelectronics
International Corporation. Such arrangements may take the form of an assignment
of certain rights and obligations hereunder or a subcontract of certain
obligations hereunder. Similarly, Cabot may make arrangements for the purchase
of
-11-
<PAGE> 12
Products and Services hereunder to be made by a subsidiary, including but not
limited to Cabot Carbon Ltd. Such arrangements may take the form of an
assignment of certain rights and obligations hereunder. However, all sales of
Products and Services pursuant to any such arrangement shall be governed by the
terms of this Agreement.
9.9 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of Delaware, without giving effect to
principles of conflicts or choice of laws of Delaware or of any other
jurisdiction.
9.10 Force Majeure. Each of the parties hereto shall be excused from
delays in performing or from failure to perform hereunder to the extent that
such delays or failures result from causes beyond the reasonable control of such
party, including, but not limited to, forces of nature, acts of God, strikes,
lockouts, wars, blockades, insurrections, riots, epidemics, restraints or
requirements of any government or government agency, civil disturbances,
explosions, breakage or accident to machinery or lines of pipe, unavailability
of raw material or supplies, strandings, perils of the sea, the binding order of
any court or governmental authority which has been resisted in good faith by all
reasonable means, and other cause, whether of the kind enumerated or otherwise,
not reasonably within the control of the party claiming suspension. Failure to
prevent or settle any strike shall not be considered to be a matter within the
control of the party claiming suspension. However, in order to be excused from
delay or failure to perform, such party must act diligently to remedy the cause
of such delay or failure.
-12-
<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as a sealed instrument and have delivered this Agreement as of the day and year
first above written.
CABOT CORPORATION
By: /s/ Samuel W. Bodman
---------------------------------------
Name: Samuel W. Bodman
Title: Chief Executive Officer
CABOT MICROELECTRONICS CORPORATION
By: /s/ Matthew Neville
---------------------------------------
Name: Matthew Neville
Title: President and
Chief Executive Officer
-13-
<PAGE> 14
SCHEDULE A
North America
Products, Materials Specifying Specifications, Formulae,
Processes, Quality Control, Maintenance
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------------------------------
SPECIFICATION CMC TEST
FORMULA CONTROL PLAN (SPECIFICATION NO./ METHODS
PRODUCT (REVISION DATE) (EFFECTIVE DATE/REVISION LEVEL) REVISION DATE) (TEST METHOD NUMBER)
- -----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
[ ] 9/19/96 8-5-96, Rev. A [ ]-10/98-Rev. 1-10/98 101, 200, 300, 302
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] 1/19/00 5-1-97, Rev. A [ ]-10-1/0-Rev. 3-1/00 203, 6010A (1)
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] 5/4/95 10-1-97, Rev. A [ ]-4/98-Rev. 1-5/97 101, 200, 300, 302
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] 7/5/94 8-5-96, Rev. A [ ]-4/98-Rev. 1-5/97 101, 200, 300, 302
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] 2/1/93 10-1-97, Rev. A [ ]-4/98-Rev. 1-5/97 101, 200, 300, 302
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] 7/5/93 10-1-97, Rev. A [ ]-4/98-Rev. 1-5/97 101, 200, 300, 302
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] 7/6/94 10-1-97, Rev. A [ ]-4/98-Rev. 1-5/97 101, 200, 300, 302
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] 7/16/93 10-1-97, Rev. A [ ]-4/98-Rev. 1-5/97 101, 200, 300, 302
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] 9/27/94 10-1-97, Rev. A [ ]-4/98-Rev. 1-5/97 101, 200, 300, 302
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] 11/18/93 10-1-97, Rev. A [ ]-4/98-Rev. 1-5/97 101, 200, 300, 302
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] 8/23/96 10-1-97, Rev. A [ ]-4/98-Rev.1-5/97 101, 200, 300, 302
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] 9/19/96 8-5-96, Rev. A [ ]-4/98-Rev. 1-4/98 101, 200, 300, 302
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] 9/19/96 8-5-96, Rev. A [ ]-4/98-Rev. 1-4/98 101, 200, 300, 302
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] 6/9/98 6-9-98, Rev. B [ ]-6/98-Rev. B 6/98 400, 404, 408
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] 8/31/99 8-31-96, Rev. A [ ]-8/99-Rev. A 8/99 DTM 101, 201, 302, 303, 500, 607
- -----------------------------------------------------------------------------------------------------------------------------------
[ ] 1/19/00 1-19-00, Rev. B [ ]-1/00-Rev. 1 203, 6010A (1)
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- -------------------------------------------------------
MINIMUM
STANDARD ORDER
PACKAGE QUANTITY
- -------------------------------------------------------
<S> <C> <C>
[ ] [ ]
- -------------------------------------------------------
[ ] [ ]
- -------------------------------------------------------
[ ] [ ]
- -------------------------------------------------------
[ ] [ ]
- -------------------------------------------------------
[ ] [ ]
- -------------------------------------------------------
[ ] [ ]
- -------------------------------------------------------
[ ] [ ]
- -------------------------------------------------------
[ ] [ ]
- -------------------------------------------------------
[ ] [ ]
- -------------------------------------------------------
[ ] [ ]
- -------------------------------------------------------
[ ] [ ]
- -------------------------------------------------------
[ ] [ ]
- -------------------------------------------------------
[ ] [ ]
- -------------------------------------------------------
[ ] [ ]
- -------------------------------------------------------
[ ] [ ]
- -------------------------------------------------------
[ ] [ ]
- -------------------------------------------------------
</TABLE>
<PAGE> 15
SCHEDULE A
Europe
Products, Materials Specifying Specifications, Formulae,
Processes, Quality Control, Maintenance
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------------
SPECIFICATION
FORMULA CONTROL PLAN (SPECIFICATION NO./
PRODUCT (REVISION DATE) (EFFECTIVE DATE/REVISION LEVEL) REVISION DATE)
- ------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
[ ] (US-[ ]) 5/4/95 10-1-97 Rev. A [ ]-4/98-Rev. 1-5/97
- ------------------------------------------------------------------------------------------------------------------------------
[ ] D1.701.013 Rev 3 23/12/99 D1.701.013 Rev. 3 23/12/99 D1.701.013 Rev 3 23/12/99
- ------------------------------------------------------------------------------------------------------------------------------
[ ] D1.701.003 Rev.2 15/12/99 D1.701.003 Rev. 2 15/12/99 D1.701.003 Rev.2 15/12/99
- ------------------------------------------------------------------------------------------------------------------------------
[ ] D1.701.005 Rev 3 16/12/99 D1.701.005 Rev. 3 16/12/99 D1.701.005 Rev 3 16/12/99
- ------------------------------------------------------------------------------------------------------------------------------
[ ] D1.701.024 Rev. 2 16/12/99 D1.701.024 Rev. 2 16/12/99 D1.701.024 Rev. 2 16/12/99
- ------------------------------------------------------------------------------------------------------------------------------
[ ] (US-A1695) 7/5/93 10-1-97 Rev. A A1695-4/98-Rev. 1-5/97
- ------------------------------------------------------------------------------------------------------------------------------
[ ] D1.701.036 Rev.2 23/12/99 D1.701.036 Rev. 2 23/12/99 D1.701.036 Rev. 2 23/12/99
- ------------------------------------------------------------------------------------------------------------------------------
[ ] D1.701.037 Rev. 2 06/01/00 D1.701.037 Rev. 2 06/01/00 D1.701.037 Rev. 2 06/01/00
- ------------------------------------------------------------------------------------------------------------------------------
[ ] D1.701.038 Rev. 2 06/01/00 D1.701.038 Rev. 2 06/01/00 D1.701.038 Rev. 2 06/01/00
- ------------------------------------------------------------------------------------------------------------------------------
[ ] D1.701.040 Rev. 3 15/12/99 D1.701.040 Rev, 3 15/12/99 D1.701.040 Rev. 3 15/12/99
- ------------------------------------------------------------------------------------------------------------------------------
[ ] D1.701.002 Rev. 2 05/01/00 D1.701.002 Rev. 2 05/01/00 D1.701.002 Rev. 2 05/01/00
- ------------------------------------------------------------------------------------------------------------------------------
[ ] D1.701.017 Rev. 2 15/12/99 D1.701.017 Rev. 2 15/12/99 D1.701.017 Rev. 2 15/12/99
- ------------------------------------------------------------------------------------------------------------------------------
[ ] D1.701.033 Rev. 2 08/12/99 D1.701.033 Rev. 2 08/12/99 D1.701.033 Rev. 2 08/12/99
- ------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------
CMC TEST MINIMUM
METHODS STANDARD ORDER
(TEST METHOD NUMBER) PACKAGE QUANTITY
- -----------------------------------------------------------------------------------------------------
<S> <C> <C> <C>
CTM 400, 407, 404 [ ] [ ]
- -----------------------------------------------------------------------------------------------------
CTM 400, 407, 405 [ ] [ ]
- -----------------------------------------------------------------------------------------------------
CTM 400, 407, 406 [ ] [ ]
- -----------------------------------------------------------------------------------------------------
CTM 400, 407, 407 [ ] [ ]
- -----------------------------------------------------------------------------------------------------
CTM 400, 407, 411 [ ] [ ]
- -----------------------------------------------------------------------------------------------------
CTM 400, 407, 413 [ ] [ ]
- -----------------------------------------------------------------------------------------------------
CTM 400, 407, 416 [ ] [ ]
- -----------------------------------------------------------------------------------------------------
CTM 400, 407, 417 [ ] [ ]
- -----------------------------------------------------------------------------------------------------
CTM 400, 407, 418 [ ] [ ]
- -----------------------------------------------------------------------------------------------------
CTM 400, 407, 420 [ ] [ ]
- -----------------------------------------------------------------------------------------------------
CTM 400, 407, 424 [ ] [ ]
- -----------------------------------------------------------------------------------------------------
CTM 400, 407, 425 [ ] [ ]
- -----------------------------------------------------------------------------------------------------
CTM 400, 407, 426 [ ] [ ]
- -----------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 1
Exhibit 10.11
The omitted portions indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406, promulgated under the Securities Act of 1933, as
amended.
INTEL CORPORATION PURCHASE AGREEMENT - CHEMICALS/GASES
Agreement #: C-06438
----------------------
Effective Date: FEB. 18, 1999
----------------------
Expiration Date: DEC. 31,2001
----------------------
CNDA #: 17452
----------------------
BUYER: Intel Corporation (and all Intel divisions and
subsidiaries, hereinafter "BUYER" or "INTEL")
Intel Corporation
2200 Mission College Blvd
Santa Clara, CA 95052-8119
SUPPLIER: Cabot Corporation (hereinafter "SUPPLIER")
500 Commons Drive
Aurora, IL 60504
<TABLE>
<S> <C> <C>
X Terms and Conditions of Purchase Agreement - Goods
------
Addenda attached here to and X A Product Description and Price Schedule
------
Incorporated herein by reference X B Key Contacts & Intel Fab Locations
------
(Mark "X" where applicable.) X C Quality Requirements
------
X D Volume Commitments
------
E
------
F
------
</TABLE>
Buyer will purchase and Supplier will sell certain Items in accordance with the
Terms and Conditions and Addenda attached hereto. All Purchase Orders issued to
Supplier by Buyer during the term of this Agreement shall be governed only by
the Terms and Conditions of this Agreement notwithstanding any preprinted terms
and conditions on Supplier's acknowledgment or Buyer's Purchase Order. Any
additional or different terms in documents exchanged by the parties subsequent
to execution of this agreement are hereby deemed to be material alterations and
notice of objection to and rejection of them is hereby given.
INTEL CORPORATION SUPPLIER
By: /s/ Mumtaz Ahmed By: /s/ Matthew Neville
------------------------------- -------------------------------
Signature Signature
Mumtaz Ahmed Matthew Neville
- ---------------------------------- -------------------------------
Printed Name Printed Name
Commodity Manager GM & VP
- ---------------------------------- -------------------------------
Title Title
2/18/99 2/18/99
- ------------------------------------ -------------------------------
Date Date
<PAGE> 2
TERMS AND CONDITIONS OF PURCHASE AGREEMENT - CHEMICALS/GASES
1. DEFINITIONS
A. "Release" means Buyer's authorization to ship in accordance with the
Buyer's Purchase Order, and authorizing Supplier to ship a definite
quantity of Items to a specified schedule. The Release is contained in the
Purchase Order sent to Supplier.
B. "Items" means the goods which Supplier is to provide to Buyer as set forth
on Addendum A. Any Item which is custom made for Buyer shall be indicated
by an asterisk (*) on such Addenda A.
C. "Estimated Usage" or "Forecast" is the quantity Buyer reasonably expects
to Release, however, Buyer shall not be obligated to Release such
quantities of Items.
D. "Purchase Order" is Buyer's document setting forth specific line Items
ordered and Release information.
E. "CIF" means "Cost, Insurance and Freight (named port of shipment)."
Reference Incoterms 1990.
F. "DDP" means "Delivered Duty Paid (named place of destination)." Reference
Incoterms 1990.
G. "DDU" means "Delivered Duty Unpaid (named place of destination)."
Reference Incoterms 1990.
H. "FMO" is Fab Materials Operation (a department within Intel Corporation).
I. "FOB" means "Freight on Board (named port of shipment)." Reference
Incoterms 1990.
J. "FCA" means "Free Carrier (named place of destination)". Reference
Incoterms 1990.
2. TERM OF AGREEMENT
A. The term of this Agreement shall begin on the Effective Date and continue
to the Expiration Date, unless renewed pursuant to the terms of this
Section. After the initial term, this Agreement shall be automatically
renewed from year to year (for one-year periods) without action by either
party, unless terminated pursuant to Section 5 of this Agreement. At
Buyer's option, Items may be scheduled for delivery up to three (3) months
following expiration or termination of this Agreement.
B. This Agreement shall be effective to all Intel manufacturing facilities in
the U.S. and the non-U.S. facilities identified in Addenda hereto.
3. PRICING
A. Prices of Items are as set forth in Addendum A, and may only be modified
by mutual agreement. Supplier will publish newly negotiated prices to
corporate representative and all Site buyers within 10 days of signed
agreement.
B. For any Item of which Supplier supplied Buyer [ ], during the previous
calendar year, Supplier agrees that the price for such Item shall always
be Supplier's lowest net price charged any customer for like volumes of
such Item. If the net price charged to Buyer for such is greater than that
charged to another customer of Supplier for like volumes, Supplier shall
adjust its price to Buyer to the lower price for as long as Supplier
continues to offer such lower price to another customer. In addition, to
the extent Buyer was charged a higher price during a period that Supplier
was selling like volumes of such Item to another customer at a lower
price, Supplier shall refund to Buyer the difference in the purchase price
paid by Buyer and such lower price.
C. In the event Supplier offers any Item of which Supplier supplied Buyer [
] during the previous calendar year at a lower price (taking into account
volume discounts) either as a general price drop or only to some
customer(s) for any reason, Supplier shall immediately inform Buyer of
this price.
- 2 -
<PAGE> 3
D. Applicable taxes and other charges such as duties, customs, tariffs,
imposts and government imposed surcharges, and freight shall be stated
separately on Supplier's invoice.
E. Additional costs, except those described in Section 3(D) or in Addenda A
or D, will not be reimbursed without Buyer's prior written approval.
F. Buyer reserves the right to have Supplier's records inspected and audited
only by an independent third party auditor to ensure compliance with
section 3B of this Agreement. At Buyer's option or upon Supplier's written
demand, such audit will be performed by an independent third party at
Buyer's expense. However, if Supplier is found to not be complying with
section 3B of this Agreement in any way, Supplier shall reimburse Buyer
for all costs associated with the audit. The results of such audit shall
be kept confidential by the auditor, and only Supplier's failures to abide
by the obligations of this Agreement shall be reported to Buyer.
G. If a new product not included in Addendum A is to be purchased regularly,
its price will be negotiated by a corporate representative at the time of
initial purchase. If the product is for test purposes only at a given
site, its price may be established between Supplier and a Sitebuyer. Said
price shall be in effect until such time as an Intel part number is
created, at which time a corporate-wide price will be negotiated by a
corporate representative.
H. Supplier will publish quarterly updates of Addendum A to FMO, all Buyer's
Site Chemicals buyers and Buyer's Accounts Payable department, including
new chemicals, their negotiated prices, supplier part numbers, Intel part
numbers and any other changes. Quarterly updates of Addendum A will be
issued on 1/30, 4/30, 7/30 and 10/30 of each year. Names and addresses of
all parties to receive the updates will be provided and updated by Site
buyer (see Addendum B).
I. U.S. and non-U.S. prices will be fixed in U.S. dollars regardless of the
Item country of origin or destination. Buyer retains the right to buy from
Supplier or any subsidiaries of Supplier in U.S. dollars.
J. The cost of containers, both returnable and disposable, diptubes and any
required accessories will be included in the cost of the chemical
K. Warehousing costs will be separate from this Agreement and will be billed
separately.
4. INVOICING AND PAYMENT
A. Any applicable prompt payment discounts will be computed from the latest
of: (i) the scheduled delivery date; (ii) the date of actual delivery; or
(iii) the date a properly filled out original invoice or packing list is
received. Payment is made when Buyer's check is mailed or EDI funds
transfer initiated. Buyer shall make payment within forty-five (45) days
of receipt of the proper original invoice or packing list.
B. Original invoices or packing lists shall be submitted and shall include:
full legal company name, payment terms, freight terms, tax status and
rate, purchase agreement number from the Purchase Order, purchase order
number, line Item number, Release number, part number, complete bill to
address, description of Items, quantities, unit price and extended totals.
Buyer's payment shall not constitute acceptance. Invoice must match
Buyer's PO and packing slip exactly including unit of measure.
C. Supplier shall provide to Buyer's Accounts Payable, and update as
necessary, the names and phone numbers of a contact in Accounts
Receivable.
D. All international shipments must be accompanied by original invoice.
E. Supplier will invoice Buyer for material and services no later than 120
days after delivery.
5. TERMINATION
This Agreement may not be terminated by either party prior to the
Expiration Date, except upon material breach by the other party. The
Agreement may be terminated by
- 3 -
<PAGE> 4
either party on or after the Expiration Date by delivering to the other
party written notice of termination at least one year prior to the date of
such termination.
6. CONTINGENCIES
Neither party shall be responsible for its failure to perform due to
causes beyond its reasonable control such as acts of God, fire, theft,
war, riot, embargoes or acts of civil or military authorities. If delivery
is to be delayed by such contingencies, Supplier shall immediately notify
Buyer in writing and Buyer may either: (i) extend time of performance; or
(ii) terminate all or part of the uncompleted portion of the Purchase
Order at no cost to Buyer.
7. DELIVERY, RELEASES AND SCHEDULING
A. Any Forecasts provided by Buyer are for planning purposes only and do not
constitute a Release or other commitment by Buyer.
B. [Left intentionally blank]
C. Supplier shall notify Buyer in writing within two (2) business days of
receipt of Buyer's Purchase Order if Supplier is unable to make any
scheduled delivery and state the reasons therefor. The absence of such
notice constitutes acceptance of the Purchase Order and commitment to the
Release terms.
D. Supplier shall not deliver Items earlier than five (5) business days prior
to agreed scheduled delivery dates and Buyer may return early, excess, or
non-conforming shipments at Supplier's risk and expense.
E. Buyer may reschedule or cancel any Release in whole or in part prior to
the Release date at no additional charge.
F. Buyer may place any portion of a Release on hold by notice which shall
take effect immediately upon receipt. Releases placed on hold will be
rescheduled or canceled within a reasonable time.
G. Supplier shall not deliver Items until such Items are specified in an
issued Purchase Order which contains specific Release dates for specific
Items.
H. Purchase orders will specify the destination date at Buyer dock or
designated warehouse.
I. Supplier must notify FMO, Accounts Payable and all Site Chemical buyers
immediately in writing of any changes, including changes in delivery
schedules, part numbers, contact persons and the party to be invoiced.
J. Supplier must provide FMO with a Certificate of Analysis (C of A) or
sample for each lot to be shipped, as directed in the most current
appropriate Intel Specification (Addendum C).
K. Buyer may return any standard Item in same condition as received within
[ ] days of receipt. Buyer will pay return freight and disposal costs,
if necessary (Disposal costs paid only if the product conformed to all
required specifications in place). Reimbursement for Items returned will
be made by credit memo.
L. Supplier shall ship all Items according to the delivery address provided
on each Purchase Order submitted by Buyer.
M. Supplier shall provide and update as necessary the name and phone number
of one person which Buyer's representative may contact regarding
scheduling and delivery. Additionally, Supplier will provide 24-hour
hotline/contact number which Buyer may contact in case of emergency.
N. Supplier agrees to maintain safety stock on specified Items as mutually
agreed with Buyer's local sites. Supplier shall notify Buyer whenever
safety stock falls below minimum levels and will provide a corrective
action plan to replenish Items. In the event Buyer no longer intends to
purchase a particular Item from Supplier for use at a particular site,
Buyer shall so notify Supplier of such fact and Buyer shall purchase
Buyer's minimum required safety stock of such Items at that site.
- 4 -
<PAGE> 5
O. Supplier shall maintain an on-hand supply of emergency packaging material
sufficient to meet pre-agreed requirements with Buyer's Site Chemical
buyer.
8. ACCEPTANCE AND WARRANTY
A. Buyer may with reasonable advance notification inspect and test all Items
at reasonable times before, during and after manufacture. If any
inspection or test is made on Supplier's premises, Supplier shall provide
reasonable facilities and assistance for the safety and convenience of
Buyer's inspectors in such manner as shall not unreasonably hinder or
delay Supplier's performance. All Items shall be received subject to
Buyer's inspection, testing, approval and acceptance at Buyer's premises
notwithstanding any inspection or testing at Supplier's premises or any
prior payment for such Items. Items rejected by Buyer as not conforming to
this Agreement or Item specifications whether provided by Buyer or
furnished with the Item may be returned to Supplier at Supplier's risk and
expense and, at Buyer's request shall immediately be repaired or replaced.
B. Supplier warrants that all Items furnished here under shall be new, of the
grade and quality specified, conform to all agreed-to specifications, and
will be free of liens and encumbrances (excluding claims of intellectual
property infringement, which are the exclusive subject of Section 14).
These warranties shall survive any delivery, inspection, acceptance,
payment or resale of the Items. Original specifications and any subsequent
modifications to those specifications shall be agreed upon by both Buyer
and Supplier. SUPPLIER MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY
KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE OR ANY OTHER MATTER WITH RESPECT TO THE ITEMS, WHETHER USED ALONE
OR IN COMBINATION WITH OTHER SUBSTANCES, EVEN IF THE PURPOSES OR USES OF
SUCH PRODUCTS ARE KNOWN BY SUPPLIER.
C. During the Items' specified shelf life, at Buyer's option, Supplier shall
promptly repair, replace or refund the purchase price of all Items not
conforming to the foregoing warranties, and shall also refund the cost of
return shipping of such Items. Supplier will bear the risk of loss of such
Items while in transit. [ ] As used herein, "Non-Conformance Event"
shall mean the receipt by Buyer of a lot of Items which are not in
conformity with the warranty given in Section 8B above. IN NO EVENT SHALL
SELLER BE RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING IN WARRANTY UNDER THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. [ ] NOTHING IN THIS SECTION IS
INTENDED TO PLACE A LIMITATION ON EITHER PARTY'S LIABILITY IN TORT FOR
PERSONAL INJURY.
D. Freight charges for returned non-conforming Items shall be paid by
Supplier with the understanding that returns must be authorized in
accordance with Supplier's return authorization procedures. Returns must
be authorized by Supplier within 10 days of Buyer's request. Credit for
returned Items will be issued within 30 days of notification by Buyer.
E. Notwithstanding anything to the contrary contained in this Agreement,
Supplier represents and warrants to Buyer that there will be no disruption
in the supply of those goods and/or services which are under the direct
control of the Supplier as a result of or due to the date change from and
between December, 1999, and January, 2000, nor due
- 5 -
<PAGE> 6
to the year 2000 being a leap year. Supplier does not provide any such
warranty for disruptions caused by those goods and/or services which are
not under the Supplier's direct control. As used herein, "direct control"
refers to goods and/or services which the Supplier actively manages by
contract and/or owns. [ ]
9. PRODUCT SPECIFICATIONS/IDENTIFICATION/ ERRATA
A. Supplier shall not modify the specifications for Items without Buyer's
written consent. Supplier shall notify FMO and all Site Chemical buyers
immediately in writing of any change in Supplier's part number, in the
manufacturing process, packaging or description for any Item sold to Buyer
at least ninety (90) days in advance of any changes. Such notice shall
also be included in the quarterly update mentioned in Section 3 (I).
B. Supplier shall cooperate with Buyer to provide configuration control and
traceability systems for Items supplied hereunder.
C. Items must comply with Buyer's raw material specifications (Intel
Specification 07-400).
D. As long as Buyer is purchasing a particular Item, Supplier shall notify
FMO and all Site Chemical buyers at least one year in advance of expected
discontinuance of that Item. Exception: In the event of changes or
discontinuation required by governmental order or requirement, Supplier
shall notify Buyer in writing immediately. Notification of any change in
product specification must follow Intel's " Materials Change Control
Procedure." (Intel Specification 07-120).
E. Where an existing agreed-to Intel Specification (Addendum C) is updated,
the updated Specification must be agreed to by Buyer and Supplier before
it will be in effect.
10. CONTAINERS AND DIPTUBES
A. All necessary chemical containers, packaging and diptubes will be provided
by Supplier and included in the cost of the Item.
B. All containers and diptubes shall be inspected by Supplier before each use
and repaired or replaced as necessary.
C. At all times, ownership and title of containers and diptubes will remain
with the Supplier.
D. Buyer will not be responsible for any additional charges for acquisition,
termination or disposal of containers or diptubes.
E. In the event that containers or diptubes become damaged through neglect or
misuse by Buyer, Buyer will reimburse Supplier an amount agreed upon and
pro-rated based upon useful life.
F. All packaging including quartz, stainless steel, bottles, drums and ICBs,
shall be equipped with tamper evident seals.
11 PACKING AND SHIPMENT
A. Shipments to Israel: Delivery terms for Israel will be DDP Intel,
Jerusalem. Supplier fulfills its obligation to deliver when Items are made
available at Buyer's dock or designated warehouse. Supplier will bear all
risks, liabilities and costs involved in bringing the Items thereto. Buyer
will ship empty containers to the point of manufacture in a timely manner.
B. Shipments to Ireland: Delivery terms for Ireland will be DDU Intel,
Leixlip. Supplier fulfills its obligation to deliver when Items are made
available at Buyer's dock or designated warehouse. Supplier will bear all
risks, liabilities and costs involved in bringing the Items thereto,
excluding duties, taxes and other official charges payable upon
importation. Buyer will ship empty containers to the point of manufacture
in a timely manner.
C. For all other Intel Factories, both U.S. and non-U.S., Items shall be DDP
Buyer's dock or as otherwise specified in the Release. Buyer will ship
empty containers to the point of manufacture in a timely manner. All Items
shall be prepared for shipment in a manner
- 6 -
<PAGE> 7
which: (i) follows good commercial practice; (ii) is acceptable to common
carriers for shipment at the lowest rate; and (iii) is adequate to ensure
safe arrival. Supplier shall mark all containers with necessary lifting,
handling and shipping information, purchase order number, date of shipment
and the names of the Buyer and Supplier. Buyer shall notify Supplier of
the method of shipment and expected delivery date. If no instructions are
given, Supplier shall select the most cost effective carrier, given the
time constraints known to Supplier. Supplier shall ship only the quantity
of Items specified in the Release. Buyer may return at Supplier's expense
any Items in excess of the quantity stated in the Release.
D. Supplier shall be responsible for all Supplier's activities through
manufacture, storage, transport, and delivery of Items to Buyer. In the
event that Buyer must deploy emergency, safety, or materials personnel in
response to an emergency or non-compliance with Intel or regulatory
procedure involving Items supplied hereunder, Buyer and Supplier will
review the incident. If Buyer and Supplier agree that (i) such deployment
was necessary, and (ii)Supplier's negligent act or failure to act was the
proximate cause of such emergency or non-compliance, then Supplier agrees
to reimburse Buyer for the out-of-pocket cost incurred by Buyer in
deploying its personnel to respond to such incident. Supplier will not be
responsible for costs incurred by such deployment due to Buyer's negligent
act or failure to act. International shipments: Supplier will provide
Buyer's representative with shipping documents as requested. Buyer's
purchase orders will contain detailed shipping instructions.
E. Shipment of all Items qualified for Buyer's Preship or Direct Ship
Programs will be done in accordance with latest mutually accepted Intel
Specification 07-402 (Intel Chemical and Gas Quality Program.).
12. OWNERSHIP AND BAILMENT RESPONSIBILITIES
A. Any specifications, drawings, schematics, technical information, data,
tools, dies, patterns, masks, gauges, test equipment, and other materials
furnished or paid for by Buyer shall: (i) be kept confidential; (ii)
remain Buyer's property; (iii) be used by Supplier exclusively for Buyer's
orders; (iv) be clearly marked as Buyer's property and segregated when not
in use; (v) be kept in good working condition at Supplier's expense; and
(vi) be shipped to Buyer promptly on demand.
B. Supplier shall insure Buyer's property and be liable for loss or damage
while in Supplier's possession or control, ordinary wear and tear
excepted.
13. CONFIDENTIALITY AND PUBLICITY
A. During the course of this Agreement, either party may have or may be
provided access to the other's confidential information and materials.
Provided such are marked in a manner reasonably intended to make the
recipient aware, or the recipient is sent written notice within
forty-eight (48) hours of disclosure, that the information or materials
are "Confidential", each party agrees to maintain such information in
accordance with the terms of this Agreement and the CNDA referenced on the
signature page of this Agreement or any applicable separate nondisclosure
agreement between Buyer and Supplier. In the absence of a CNDA or other
written agreement, at a minimum each party agrees to maintain such
information in confidence and limit disclosure on a need to know basis, to
take all reasonable precautions to prevent unauthorized disclosure, and to
treat such information as it treats it's own information of a similar
nature, until the information becomes publicly available through no fault
of the non disclosing party. Supplier's employees who access Buyer's
facilities may be required to sign a separate non-disclosure agreement
prior to admittance to Buyer's facilities.
B. The parties agree that neither will disclose the existence of this
Agreement, nor any of its details or the existence of the relationship
created by this Agreement, to any third party without the specific,
written consent of the other. If disclosure of this Agreement
- 7 -
<PAGE> 8
or any of the terms hereof is required by applicable law, rule or
regulation, or is compelled by a court or governmental agency, authority
or body: (i) the parties shall use all legitimate and legal means
available to minimize the disclosure to third parties of the content of
the Agreement, including without limitation seeking a confidential
treatment request or protective order; (ii) the disclosing party shall
inform the other party at least ten (10) business days (i.e., not a
Saturday, Sunday or a day on which banks are not open for business in the
geographic area in which the non-disclosing party's principal office is
located) in advance of the disclosure; and (iii) the disclosing party
shall give the other party a reasonable opportunity to review and comment
upon the disclosure, and any request for confidential treatment or a
protective order pertaining thereto, prior to making such disclosure. The
parties may disclose this Agreement in confidence to their respective
legal counsel, accountants, bankers and financing sources as necessary in
connection with obtaining services from such third parties. The
obligations stated in this section shall survive the expiration or
termination of this Agreement.
14. PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS AND MASKWORK RIGHTS
A. Supplier makes no agreement to defend, indemnify or hold Buyer harmless
from any costs, expenses, losses, damages or liabilities incurred because
of actual or alleged infringement of any patent, trade secret or other
intellectual property right by, or arising from use of, [ ] slurry or
any other Items designated as custom by the parties. For all other Items,
Supplier agrees to indemnify and hold Buyer harmless from any costs and
expenses (including reasonable attorneys' fees) incurred in connection
with, and damages awarded to a third party as a direct result of,
adjudicated claims of infringement of any third party patent, trade
secret, trademark or other intellectual property right arising out of the
purchase of Items by Buyer or the use of Items by Buyer or Buyer's
customers, provided, however, that Seller is not obligated to so indemnify
Buyer, if (i) the sale of such Item by Supplier does not constitute
contributory infringement or inducement to infringe; or (ii) Buyer
modifies the Item; or (iii) Buyer uses the Item in a manner other than the
specific use for which the Item is sold by Supplier. Buyer shall promptly
notify Supplier of such claim or demand and shall permit Supplier to
participate in the defense thereof.
B. [ ] Supplier shall have the right to settle said claim at its
discretion.
C. If an injunction issues as a result of any such claim or action or if
Supplier determines in good faith that it is unable or unwilling to supply
an Item because the Item itself or the use of the Item may infringe a
patent or may constitute a misappropriation of a trade secret, Supplier
agrees at its expense and Buyer's option to either: (i) procure for Buyer
and Buyer's customers the right to continue using Items; (ii) replace them
with non-infringing Items; or (iii) modify them so they become
non-infringing. Buyer's sole remedy for Supplier's failure to supply or to
obtain the remedy elected shall be [ ], and upon [ ] Supplier
shall not be deemed in breach of this Agreement.
D. [ ]
15. HAZARDOUS MATERIALS
- 8 -
<PAGE> 9
A. If Items or any services provided hereunder include hazardous materials as
defined by relevant local, state, and national law, Supplier represents
and warrants that Supplier and its personnel providing services to Buyer
understand the nature of and hazards associated with the design and/or
service of Items including handling, transportation, and use of such
hazardous materials, as applicable to Supplier. Prior to causing hazardous
materials to be on Buyer's property, Supplier shall obtain written
approval from Buyer's Site Environmental/Health/Safety organization.
Supplier will indemnify Buyer from any environmental liability incurred by
Buyer which results from the shipment and delivery of hazardous Items to
Buyer, provided Buyer's negligence was not a proximate cause of such
liability.
B. Supplier will timely provide Buyer with material safety data sheets and
any other documentation reasonably necessary to enable Buyer to comply
with applicable laws and regulations.
C. Supplier hereby certifies that Items supplied to Buyer do not contain and
are not manufactured with any ozone depleting substances, as those terms
are defined by law.
16. CUSTOMS CLEARANCE
Upon Buyer's request, Supplier will promptly provide Buyer with a
statement of origin for all Items and with applicable customs
documentation for Items wholly or partially manufactured outside of the
country of import.
17. COMPLIANCE WITH LAWS
A. Supplier shall comply with all national, state, and local laws and
regulations governing the manufacture, transportation, and/or sale of
Items and/or the performance of services in the course of this Agreement.
In the United States, these may include, but are not limited to,
Department of Commerce, Environmental Protection Agency, and Department of
Transportation regulations applicable to hazardous materials.
B. Supplier represents and agrees that it is in compliance with Executive
Order 11246 and implementing Equal Employment Opportunity regulations and
the Immigration Act of 1987, unless exempted or inapplicable.
18. MERGER, MODIFICATION, WAIVER, AND REMEDIES
A. This Agreement contains the entire understanding between Buyer and
Supplier with respect to the subject matter hereof and merges and
supersedes all prior and contemporaneous agreements, dealings and
negotiations. No modification, alteration or amendment shall be effective
unless made in writing, dated and signed by duly authorized
representatives of both parties.
B. No waiver of any breach hereof shall be held to be a waiver of any other
or subsequent breach.
C. Except as otherwise expressly limited herein, the parties' rights and
remedies herein are in addition to any other rights and remedies provided
by law or in equity.
D. If any provision of this Agreement is determined by a court of competent
jurisdiction to be invalid, illegal or unenforceable, such determination
shall not affect the validity of the remaining provisions unless Buyer
determines in its discretion that the court's determination causes this
Agreement to fail in any of its essential purposes.
19. ASSIGNMENT
Neither party may assign or factor any rights in nor delegate any
obligations under this Agreement or any portion thereof without the
written consent of the other. However, Supplier may assign its rights and
obligations hereunder to its direct and indirect subsidiaries, without
such consent. Buyer may cancel this Agreement for cause should Supplier
attempt to make an unauthorized assignment of any right or obligation
arising hereunder.
- 9 -
<PAGE> 10
20. APPLICABLE LAW
This Agreement is to be construed and interpreted according to the laws of
the State of Delaware, excluding its conflict of laws provisions. This
Agreement is not subject to the United Nations Convention on Contracts for
the International Sale of Goods, in accordance with Article 6 thereof.
21. HEADINGS
The headings provided in this Agreement are for convenience only and shall
not be used in interpreting or construing this Agreement.
22. SPECIFIC PERFORMANCE
Notwithstanding anything else contained in this Agreement, the parties
hereto agree that failure to perform certain obligations undertaken in
connection with this Agreement would cause irreparable damage, and that
monetary damages would not provide an adequate remedy in such event. The
parties further agree that failure to deliver against accepted Purchase
Orders, or to deliver confirmed supply or pricing, are such obligations.
Accordingly, it is agreed that, in addition to any other remedy to which
the non breaching party may be entitled, at law or in equity, the non
breaching party shall be entitled to injunctive relief to prevent breaches
of the provisions of this Agreement, and an order of specific performance
to compel performance of such obligations in any action instituted in any
court of the United States or any state thereof having subject matter
jurisdiction.
23. SURVIVAL
The provisions of Sections: 1, 8, 13, 14, 15, 20 will survive any
termination or expiration of this Agreement. In addition, any license
granted pursuant to Section 25 which is exercised prior to the Expiration
Date shall remain in force and effect for a period of three (3) years
following the Expiration Date, and Section 25 shall survive for this
three-year time period following the Expiration Date.
24. VOLUME COMMITMENTS
A. Buyer's and Supplier's volume obligations and sales commitments for
[ ] are set forth in Addendum D for the years set forth therein.
B. Notwithstanding the volume obligations described above and set forth in
detail in Addendum D of this Agreement, in the event that (i) Buyer is
made a party to litigation arising from a claim of intellectual property
infringement for which Buyer is indemnified, pursuant to Section 14 above,
and (ii) Buyer determines, in good faith, after a thorough review of the
claim, underlying patent, requested relief, Buyer's defenses and other
relevant facts, that [ ], unless Supplier agrees in writing to
increase [ ] set forth in Section 14 to a level which exceeds [ ].
C. Notwithstanding the volume obligations described above and set forth in
detail in Addendum D of this Agreement, in the event Supplier does not
supply a particular
- 10 -
<PAGE> 11
Item for the reasons stated in Section 14C above, Supplier shall be
released from its contractual obligation to supply the affected Item to
Buyer.
25. LICENSE
A. Supplier agrees to grant to Buyer and/or its designee a contingent,
royalty-free, fully-paid, worldwide, non-exclusive, irrevocable license,
under those intellectual property rights that are owned by Supplier, or
licensed to Supplier (which Supplier has the right to sublicense), that
are necessary to make, use and import, and in the case of any such
designee, to sell to Buyer or offer for sale to Buyer, those specific
Items that Supplier is not able to supply under this Agreement for one of
the following reasons:
[ ]
The above described license is expressly limited to the right to make
Items for Buyer's sole use, or in the case of a designee, to make, sell or
offer for sale Items (not supplied for the reasons set forth above), in an
amount not to exceed those set forth in Addendum D, for Buyer's sole use.
In addition, the above described license shall not obligate Supplier to
disclose any trade secrets to Buyer or its designee other than the
formulation (i.e., the ingredients and proportions) of the Item which has
not been supplied. Any disclosure of such Item's formulation to Buyer
and/or its designee shall be subject to Buyer and/or its designee entering
into appropriate obligations of confidentiality with respect to such
formulation.
B. In the event (i) Buyer is made a defendant in litigation by any person or
entity other than [ ], arising from a claim of patent infringement for
which Buyer is indemnified, pursuant to Section 14 above; and (ii)
Supplier is willing to continue to supply the affected Items; and (iii)
Supplier is unable to settle such litigation [ ]; and (iv) Buyer
determines, in good faith, after a thorough review of the claim,
underlying patent, requested relief, Buyer's defenses and other relevant
facts, that [ ]:
(i) [ ] to Buyer and/or its designee [ ], and in the case of
any such designee, [ ], those specific Items (in an amount not to
exceed that set forth in Addendum D) that are the subject of such
litigation, provided, that Supplier [ ]. The [ ] in such case with
respect to the [ ] shall be [ ]
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<PAGE> 12
of the purchase price or fair market value (if produced by Buyer
internally) of the Item that is [ ]; or
(ii) [ ] to Buyer and/or its designee [ ], and in the case
of any such designee, [ ], those specific Items that are the subject
of such litigation. The [ ] in such case shall be [ ] of the
purchase price or fair market value (if produced by Buyer internally) of
the Item that is [ ]. The foregoing [ ] is expressly limited to
the right to [ ] (in an amount not to exceed that set forth in
Addendum D) for Buyer's sole use.
In the event Buyer exercises its right to have a [ ] to Buyer and/or
its designee under this Section 25B, any such [ ] shall not
subsequently revert to a [ ] under Section 25A, regardless of whether
Supplier subsequently stops supplying the affected Item.
- 12 -
<PAGE> 13
ADDENDUM A
PRODUCT DESCRIPTION AND PRICE SCHEDULE
A. [ ]
TABLE A
PRICES WHICH APPLY IF BUYER PURCHASES [ ]
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------
CABOT PART # PKG POINT OF MANUFACTURE DESTINATION PRICE PER GALLON
-----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
[ ] IBC United States United States (FOB local $[ ]
Warehouse)
---------------------------------------------------
Ireland (DDU) $[ ]
---------------------------------------------------
Israel (DDP) $[ ]
-----------------------------------------------------------------------------------------------------------------
[ ] IBC Barry, Wales United States (FOB local $[ ]
Warehouse)
---------------------------------------------------
Ireland (DDU) $[ ]
---------------------------------------------------
Israel (DDP) $[ ]
-----------------------------------------------------------------------------------------------------------------
[ ] IBC/DTA United States United States (FOB local $[ ]
Warehouse)
-----------------------------------------------------------------------------------------------------------------
</TABLE>
TABLE B
PRICES WHICH APPLY IF BUYER PURCHASES [ ]
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------
CABOT PART # PKG POINT OF MANUFACTURE DESTINATION PRICE PER GALLON
-----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
[ ] IBC United States United States (FOB local $[ ]
Warehouse)
---------------------------------------------------
Ireland (DDU) $[ ]
---------------------------------------------------
Israel (DDP) $[ ]
-----------------------------------------------------------------------------------------------------------------
[ ] IBC Barry, Wales United States (FOB local $[ ]
Warehouse)
---------------------------------------------------
Ireland (DDU) $[ ]
---------------------------------------------------
Israel (DDP) $[ ]
-----------------------------------------------------------------------------------------------------------------
[ ] IBC/DTA United States United States (FOB local $[ ]
Warehouse)
-----------------------------------------------------------------------------------------------------------------
</TABLE>
- 13 -
<PAGE> 14
TABLE C
PRICES WHICH APPLY IF BUYER PURCHASES [ ]
<TABLE>
<CAPTION>
-----------------------------------------------------------------------------------------------------------------
CABOT PART # PKG POINT OF MANUFACTURE DESTINATION PRICE PER GALLON
-----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
[ ] IBC United States United States (FOB local $[ ]
Warehouse)
---------------------------------------------------
Ireland (DDU) $[ ]
---------------------------------------------------
Israel (DDP) $[ ]
-----------------------------------------------------------------------------------------------------------------
[ ] IBC Barry, Wales United States (FOB local $[ ]
Warehouse)
---------------------------------------------------
Ireland (DDU) $[ ]
---------------------------------------------------
Israel (DDP) $[ ]
-----------------------------------------------------------------------------------------------------------------
[ ] IBC/DTA United States United States (FOB local $[ ]
Warehouse)
-----------------------------------------------------------------------------------------------------------------
</TABLE>
Prices for purchases of [ ] between the [ ] shown in the above
tables [ ] shall be determined by a straight line extrapolation of the
prices shown in the above tables.
The price per gallon of [ ] shall be calculated based upon the percent
share of Buyer's requirements for [ ] which Buyer forecasts for the
relevant calendar year. For example, if Buyer purchases [ ] from
Supplier in calendar year 2000, the price will be determined using Table B.
However, if Buyer purchases [ ] from Supplier in calendar year 2000,
the price will be determined using Table A.
B. [ ]
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
CABOT PART # PKG POINT OF DESTINATION PRICE BASED ON CUMULATIVE VOLUMES OF [ ] PURCHASED
MANUFACTURE
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
# [ ]-[ ]* [ ]-[ ]* [ ]-[ ]* [ ]-[ ]* [ ]-[ ]* >[ ]*
[ ] IBC United States United States (FOB $[ ] $[ ] $[ ] $[ ] $[ ] $[ ]
local warehouse)
United States Israel $[ ] $[ ] $[ ] $[ ] $[ ] $[ ]
(DDP)
United States Ireland (DDU) $[ ] $[ ] $[ ] $[ ] $[ ] $[ ]
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
* volumes in thousands of gallons
The price per gallon of [ ] shall be calculated based upon the
cumulative volume of gallons of [ ] purchased by Buyer from
- 14 -
<PAGE> 15
Supplier during the term of this Agreement. Adjustments to the price,
based upon the cumulative gallons of [ ] purchased by Buyer from
Supplier, shall take effect in the quarter following the quarter in which
Buyer surpasses a volume threshold.
C. [ ]*
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------------------------------------
CABOT PART # PKG POINT OF MANUFACTURE DESTINATION # PRICE PER GALLON
<S> <C> <C> <C> <C>
[ ] IBC United States United Sates (FOB local warehouse) $[ ]
[ ] IBC United States Ireland (DDU) $[ ]
[ ] IBC Barry, Wales Ireland (DDU) $[ ]
[ ] IBC Barry, Wales United Sates (FOB local warehouse) $[ ]
- -------------------------------------------------------------------------------------------------------------------------
</TABLE>
*[ ]
D. [ ]
<TABLE>
<CAPTION>
- ------------------------------------------------------------------------------------------------------------------------
CABOT PART # PKG POINT OF MANUFACTURE DESTINATION # PRICE PER GALLON
<S> <C> <C> <C> <C>
[ ] IBC United States United Sates (FOB local warehouse) $[ ]
- ------------------------------------------------------------------------------------------------------------------------
</TABLE>
- 15 -
<PAGE> 16
ADDENDUM B
KEY CONTACTS & INTEL FAB LOCATIONS
DEPARTMENT/TITLE NAME PHONE
OHKA:
Account Representative Brad Staley 630-375-5508
Accounts Receivable 630-585-9471
24-Hour Emergency Contact Brad Staley 630-375-5508
Schedule/Delivery Contact Soni Pahia 916-939-9364
General Bruce Zwicker 630-375-5540
INTEL:
FMO
Commercial Mumtaz Ahmed 408-765-88
Technical Ara Philipossian 408-765-6256
Joe Schoenholtz 408-765-2435
Buyers
Ireland Caitriona Delaney 011-353-1-606-8630
New Mexico Tami Freeman 505-893-3538
Fab 6 Oscar Ochoa 602-554-8417
Fab 12 Oscar Ochoa 602-554-8417
Israel
Fab 8 Anna Provad 011-972-2-5896357
Fab 18 Yaron Ozer 011-972-7-666-6953
Santa Clara
D2 Karen Ma 408-765-6152
Ethel Swindall 408-765-2392
Oregon Heather Holcomb 503-642-8693
Massachusetts
F17 Tony Quarta
Accounts Payable:
AZ/CA Linda Medill 503-696-3237
OR Jessica Ailshie 503-696-3046
NM Debbie Martin 503-696-3302
- 16 -
<PAGE> 17
ADDENDUM C
QUALITY REQUIREMENTS
LIST OF GOVERNING INTEL SPECIFICATIONS
<TABLE>
<CAPTION>
- -------------------------------------------------------------------------------------------
SPEC. NO. REV. TITLE ISSUE DATE
- -------------------------------------------------------------------------------------------
<S> <C> <C> <C>
07-116 0 MATERIALS CHANGE CONTROL POLICY 05/22/98
- -------------------------------------------------------------------------------------------
07-123 2 SUPPLIER CORRECTIVE ACTION POLICY 02/25/98
- -------------------------------------------------------------------------------------------
07-124 4 FMO/ATMO-DISCREPANT RAW MATERIAL DISPOSITION POLICY 06/09/98
- -------------------------------------------------------------------------------------------
07-400 7 CHEMICALS SPECIFICATION SYSTEM 06/05/97
- -------------------------------------------------------------------------------------------
07-401 6 PROCEDURE FOR SHIPPING & RECEIVING OF CHEMICALS 12/05/97
- -------------------------------------------------------------------------------------------
07-402 5 INTEL CHEMICAL QUALITY PROGRAM 06/26/98
- -------------------------------------------------------------------------------------------
07-403 2 SHIPPING OF TEMP-SENSITIVE CHEMICALS 12/05/97
- -------------------------------------------------------------------------------------------
07-411 4 PROCUREMENT SPEC FOR CHEMICALS 11/25/98
- -------------------------------------------------------------------------------------------
</TABLE>
- 17 -
<PAGE> 18
ADDENDUM D
VOLUME OBLIGATIONS
A. [ ]
During the years set forth below, Buyer shall be obligated to purchase
from Supplier [ ] During the years specified below, Supplier shall be
obligated to supply to Buyer [ ]
<TABLE>
<CAPTION>
[ ] SLURRY VOLUME OBLIGATIONS
- -------------------------------------------------------------------------------------
CALENDAR YEAR BUYER'S [ ] PERCENTAGE SUPPLIER'S [ ] PERCENTAGE
- -------------------------------------------------------------------------------------
<S> <C> <C>
1999 [ ]% [ ]%
- -------------------------------------------------------------------------------------
2000 [ ]% [ ]%
- -------------------------------------------------------------------------------------
2001 [ ]% [ ]%
- -------------------------------------------------------------------------------------
</TABLE>
Ninety days prior to the commencement of each calendar year, Buyer shall commit
and obligate itself to purchase from Supplier [ ] which it shall purchase
from Supplier during the upcoming year. The amount of [ ] which Buyer will
purchase, above the [ ], will be determined according to whether Supplier
meets requirements set by Buyer's Supplier Score Card.
B. [ ]
During the years set forth below, Buyer shall be obligated to purchase
from Supplier [ ] During the years specified below, Supplier shall be
obligated to supply to Buyer [ ]
- 18 -
<PAGE> 19
Notwithstanding the foregoing, during the course of any calendar year, Buyer
may, by giving 4 months advance written notification to Supplier, increase its
forecasted [ ] requirements for the remainder of the year (starting after
the 4 month notice period), provided, however, such new forecasted amount may
not exceed a volume which is greater than the product of the remaining volumes
from the original forecasted amount, multiplied by [ ].
<TABLE>
<CAPTION>
[ ] SLURRY VOLUME OBLIGATIONS
- ------------------------------------------------------------------------------------
CALENDAR YEAR BUYER'S [ ] PERCENTAGE SUPPLIER'S [ ] PERCENTAGE
- ------------------------------------------------------------------------------------
<S> <C> <C>
1999 [ ]% [ ]%
- ------------------------------------------------------------------------------------
2000 [ ]% [ ]%
- ------------------------------------------------------------------------------------
2001 [ ]% [ ]%
- ------------------------------------------------------------------------------------
</TABLE>
90 days prior to the commencement of 2001, Buyer shall commit and obligate
itself to purchase from Supplier [ ] which it shall purchase from Supplier
during 2001. The amount of [ ] which Buyer will purchase, above the [ ],
will be determined according to whether Supplier meets requirements set by
Buyer's Supplier Score Card.
C. [ ]
During the years set forth below, Buyer shall be obligated to purchase from
Supplier [ ] For each month of this Agreement, Supplier shall be obligated
to supply to Buyer [ ]
<TABLE>
<CAPTION>
[ ] SLURRY VOLUME OBLIGATIONS
- -----------------------------------------------------------------
CALENDAR YEAR [ ] PERCENTAGE [ ] PERCENTAGE
- -----------------------------------------------------------------
<S> <C> <C>
1999 [ ]% [ ]%
- -----------------------------------------------------------------
2000 [ ]% [ ]%
- -----------------------------------------------------------------
2001 [ ]% [ ]%
- -----------------------------------------------------------------
</TABLE>
D. [ ]
Neither Buyer nor Supplier have any volume obligations with respect to
[ ]
- 19 -
<PAGE> 20
With respect to all of the above describe Items, in the event Buyer does not
purchase a particular Item for use in its facilities in either [ ] for any
[ ] Supplier shall no longer be obligated to supply such Item to Buyer's
facilities in the relevant geographic region.
- 20 -
<PAGE> 1
Exhibit 10.12
The omitted portions indicated by brackets have been separately filed with the
Securities and Exchange Commission pursuant to a request for confidential
treatment under Rule 406, promulgated under the Securities Act of 1933, as
amended.
SERVICES AGREEMENT
This SERVICES AGREEMENT (the "Agreement"), dated October 27, 1998, by
and among Davies-Imperial Coatings, Inc. ("Davies"), an Indiana corporation
having a place of business at 1275 State Street, Hammond, Indiana, Cabot
Corporation ("Cabot"), a Delaware corporation having a place of business at 75
State Street, Boston, Massachusetts, and, for purposes of Sections 10.1, 11,
13.4, 15, 18, 19, 20.6 and 20.9, Donn Davies, an individual, and JoAnn Davies,
an individual.
WHEREAS, Cabot desires to have Davies provide to Cabot metal oxide
dispersion services; and
WHEREAS, Davies desires to provide metal oxide dispersion services to
Cabot;
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
SECTION 1. TERM
This Agreement shall commence on October 27 , 1998, and shall continue
until October 27, 2004 (the "Initial Term"). This Agreement shall thereupon be
automatically renewed for additional one (1) year periods (each a "Renewal
Term", and together with the Initial Term, the "Term"; each year of the Term
referred to herein as a "Term Year"), unless either party gives written notice
of its intention to terminate the Agreement at least 90 days prior to the
expiration of the Initial Term or any Renewal Term.
SECTION 2. SERVICES
2.1 Purchase and Sale. Subject to the terms and conditions of this
Agreement, during the Term, Davies shall provide to Cabot, and Cabot shall
purchase from Davies, the Services (as defined below) in such quantities as
specified by Cabot, subject to Section 2.4, below. "Services" means (a) the
manufacturing of the metal oxide dispersions set forth on Schedule A hereto (the
"Products") in accordance with the specifications, formulae and processes
provided by Cabot to Davies and initially as set forth in the materials
specified on Schedule A hereto, (b) the packaging of the Products in accordance
with specifications provided by Cabot from time to time, and (c) such ancillary
services as specified herein. Cabot may amend Schedule A from time to time on 30
days written notice to Davies provided such amendments either do not result in a
material increase in cost to Davies or are agreed to in advance by Davies;
Davies may only amend such schedule with Cabot's prior written consent.
2.2 Materials, Labor, etc.
(a) Subject to the following sentence, Cabot shall supply to Davies all
raw materials, packaging materials and filter media, with the exception of
wooden pallets and nominal filter bags, necessary for Davies to perform the
Services. In the event Cabot requests that Davies purchase specified materials,
Davies shall acquire the specified materials and shall bill Cabot therefor at
Davies' cost, including any handling charges incurred by Davies in connection
therewith. Title to all such materials shall remain with Cabot at all times.
<PAGE> 2
(b) Davies shall supply all materials and services, other than as set
forth in Section 2.2(a), above, necessary to provide the Services, including,
but not limited to, labor, administration, raw materials management, inventory
management, on-site warehousing, security, facility space, utilities,
maintenance, quality control, quality assurance, preparation of certificates of
analysis, order fulfillment, sample fulfillment, wooden pallets, coordination of
shipping and implementation of ISO conformance, as such may be set forth in
greater detail elsewhere in this Agreement. Subject to the following sentence,
Davies shall adequately insure all equipment at its Hammond, Indiana facility,
including the Cabot Assets, as defined below and as set forth on Schedule C
hereto. With respect to Products, as defined herein, Cabot shall adequately
insure all raw materials, finished goods and works-in-process.
2.3 Payment. Davies shall make good faith efforts to invoice Cabot
for its Services and for other charges on or before the second business day of
each month during the Term, but in no event later than the tenth day of such
month, and shall send such invoices to Cabot by express mail or similar means of
delivery. Cabot shall make a good faith effort to pay such invoices as soon as
possible following its first check run after it receives the relevant invoice,
but in any event, payment shall be made within ten (10) days after the date of
invoice.
2.4 Quantity. During each Term Year, Cabot will purchase Services
from Davies for not less than the lesser of (i) [ ] gallons of Product or
(ii) [ ] percent ([ ]%) of the total amount of orders received by Cabot
for Products for shipment to customer locations in North America. Cabot's
purchase of Services from Davies shall reflect its good faith expectations of
customer demand and Cabot shall use its reasonable efforts to distribute
substantially evenly the quantities of its purchases of Services to avoid
creating production capacity problems for Davies.
2.5 Failure to Provide Services. In addition to any other rights and
remedies of Cabot under this Agreement, in the event that Davies fails to supply
Cabot with its requirements for Services for any reason, Cabot shall have the
right to provide such Services for itself or purchase Services from sources
other than Davies. In such event, the amount of Products so provided or
purchased shall count toward the volume requirements of Section 2.4 hereof (each
a "Setoff"), provided, however, than in order for Cabot to be entitled to a
Setoff, Cabot must have provided Davies at least one week lead time on the
relevant order and the relevant order must not be for a quantity in excess of
[ ] per week.
SECTION 3. SHIPPING; DELIVERY
All Products shall be prepared for delivery to Cabot or a customer of
Cabot, as the case may be, in accordance with Cabot's instructions.
SECTION 4. PRICING
4.1 Prices. Davies shall perform the Services and provide such
miscellaneous services in connection therewith in accordance with the prices set
forth on Schedule B hereto (the "Prices").
4.2 Renegotiation. Cabot and Davies acknowledge that it is their
intention simultaneously to increase the quality of the Products and to decrease
the costs associated with manufacturing the Products, and to share any cost
savings between them. Recognizing that intention, on each two-year anniversary
of the execution of this Agreement, Cabot and Davies shall in good faith
negotiate any necessary changes (increases or decreases) to the Prices.
Necessary changes are changes that reflect changes in Davies' manufacturing
costs. In determining the changes to be made, the parties shall give
consideration to price pressures in the marketplaces of which the relevant
Products are a part. In no event shall the Price for Services relating to any
one Product be increased more than [ ]% per year.
2
<PAGE> 3
SECTION 5. CAPITAL EXPENDITURES
5.1 CapEx Investment. Cabot agrees to invest not less than One
Hundred Fifty Thousand Dollars ($150,000) (the $150,000 minimum referred to
herein as the "CapEx Investment") in capital improvements, capacity expansions
and/or capital expenditures to maintain capacity at Davies' facility relating to
the Services during each Term Year. Prior to making any such capital
expenditures, Cabot will consult with Davies to identify the priorities for such
expenditures.
5.2 CapEx Carryover. If Cabot does not spend the total amount of the
CapEx Investment in a given Term Year, Davies may carry over the unspent portion
of such CapEx Investment to the next Term Year, provided, however, that Cabot
may, at its sole option, pay Davies within ninety (90) days of the end of such
Term Year an amount in cash equal to such unspent portion, in which case there
shall be no carryover for such Term Year. Notwithstanding the foregoing
sentence, if in any given Term Year Cabot agrees to spend more than the CapEx
Investment for that Term Year (including any carryover) on capital improvements
and/or capital expansions at Davies' facility, the excess shall be credited
toward the CapEx Investment in future Term Years, beginning with the immediately
succeeding Term Year.
SECTION 6. MAINTENANCE AND IMPROVEMENTS
6.1 Maintenance.
(a) Davies shall be responsible for the proper customary maintenance of
all assets used, directly or indirectly, in its provision of Services, including
the Cabot Assets (as defined below). Notwithstanding the foregoing, Cabot shall
be responsible for costs under third-party maintenance contracts relating to the
[ ] system located at Davies' facility in Hammond, Indiana. The parties
acknowledge that to the extent certain maintenance items are not individually
specified on Schedule A hereto, the cost of such maintenance items are reflected
in the Prices for the Services.
(b) If Cabot makes a good faith determination that Davies is not
complying with Section 6.1(a) hereof, Cabot shall have the right to enter upon
Davies' premises in order to perform the maintenance required by Section 6.1(a).
Any amounts expended by Cabot pursuant to this Section 6.1(b) shall be credited
toward the CapEx Investment for such Term Year. The fact that Cabot makes use of
this Section 6.1(b) shall have no effect on any of its rights and remedies with
respect to Davies' failure to comply with Section 6.1(a).
6.2 Improvements. After taking into account the improvements made
pursuant to Section 5.1 hereof, Davies agrees to make all capital improvements
to its Hammond, Indiana facility that are necessary or advisable in order to
continue to provide the Services in a timely manner.
SECTION 7. RIGHT TO BID
Cabot shall provide Davies the opportunity to bid to provide the
Services with respect to all Cab-O-Sperse(R) and Semi-Sperse(R) metal oxide
dispersions to be manufactured in North America, other than those to be
manufactured solely by Cabot or any Cabot affiliate. As used in this Agreement,
"affiliate" means, with respect to any person or entity, any person or entity,
directly or indirectly controlling, controlled by, or under common control with
any such person or entity.
3
<PAGE> 4
SECTION 8. PROPRIETARY INFORMATION; CONFIDENTIALITY
8.1 Proprietary Information.
(a) Subject to Section 8.1(b) hereof, the term "Proprietary Information"
shall mean, whether disclosed prior to, on or after the date hereof and whether
or not marked or identified as confidential, formulae, specifications,
demographic and trade information, costs, intellectual property and applications
for the same (including, but not limited to, patents, copyrights, trademarks,
trade names, service marks, service names, technology, know-how, processes,
trade secrets, inventions, data and software), names of investors and customers,
and other strategic business, marketing, sales and financial information
relating to the relevant party's business (including, but not limited to
business plans, marketing strategy, and production information).
(b) The term "Proprietary Information" does not include any information
which (i) at the time of disclosure or thereafter is generally available to or
known by the public (other than as a result of the acts by the recipient or its
representatives in breach of this Agreement), (ii) was or becomes available to
the recipient on a non-confidential basis from a source other than the provider
or its advisors, provided that such source is not and was not bound by a
confidentiality agreement with the provider, or (iii) has been independently
acquired or developed by the recipient without violating any of its obligations
under this Agreement.
8.2 Ownership. All information and materials, including Proprietary
Information of Cabot, its subsidiaries and its affiliates and all physical
manifestations thereof, that are received by Davies from Cabot prior to, on or
after the date hereof in connection with the Services or that are or were
created or produced by Davies and are based upon, or are otherwise prepared with
use of or reference to, Proprietary Information of Cabot, shall be and remain
the sole and exclusive property of Cabot. Upon written request by Cabot, Davies
shall return to Cabot all tangible forms of the Proprietary Information of
Cabot, including any and all copies, and all unused samples of materials Cabot
may have provided.
8.3 Confidentiality.
(a) Davies acknowledges, understands and agrees that all Proprietary
Information of Cabot and its subsidiaries and affiliates is confidential and
shall remain the exclusive property of Cabot, its subsidiaries or its
affiliates, as the case may be. Cabot acknowledges, understands and agrees that
all Proprietary Information of Davies is confidential and shall remain the
exclusive property of Davies. Each of Cabot and Davies agrees that for a period
of [ ] from and after the termination or expiration of the Term, it shall
keep and hold as confidential, and shall require its directors, officers,
employees, agents and representatives, to keep and hold as confidential, any and
all Proprietary Information of the other unless disclosure is required by
applicable law or by terms of a subpoena or other order issued by a court of
competent jurisdiction. Each party shall promptly notify the other of any such
subpoena or order, shall contest any such subpoena or order and shall (to the
extent possible) permit the owner of such Proprietary Information to contest any
such subpoena or order. Except as so required, neither party shall disclose any
Proprietary Information of the other to third parties, or to its employees or
representatives who do not have a need to know it in connection with the subject
of the transactions contemplated by this Agreement, and neither party shall use
(or permit to be used) any Proprietary Information of the other except for the
purposes contemplated hereby. For purposes of this Section 8, the party
providing any of its Proprietary Information is sometimes referred to as the
"provider" and the party receiving any of the other's Proprietary Information is
sometimes referred to as the "recipient."
(b) Davies agrees to cause each of its employees as of the date of this
Agreement, and any person who becomes an employee of Davies during the Term, to
enter into a confidentiality agreement with Cabot that provides for essentially
the same kind and degree of confidentiality as set forth in Section 8.3(a)
hereof with respect to Davies.
4
<PAGE> 5
8.4 Redelivery Upon Termination. The recipient shall deliver or
cause to be delivered to the provider, or destroy, promptly after termination of
this Agreement for any reason any documents containing Proprietary Information
and any copies thereof which the recipient (or others to whom the recipient has
disclosed the same hereunder whether authorized hereby or not) may have and
shall permanently erase or cause to be erased all Proprietary Information from
any computer memory or storage.
SECTION 9. INTELLECTUAL PROPERTY
9.1 Intellectual Property.
(a) With regard to any inventions, improvements and technical
information that are created or produced on or after the date of this Agreement
by any of the parties hereto in connection with the Services, or that are based
upon or suggested by any Proprietary Information of Cabot (the foregoing,
collectively, referred to herein as the "Term IP"), Davies agrees that Cabot
will be the sole and exclusive owner thereof, including all patents, copyrights,
and other intellectual property rights therein. Davies hereby assigns and agrees
to assign, without any additional compensation, all right, title and interest in
and to such inventions, improvements and technical information, including all
patents, copyrights and other intellectual property rights therein, to Cabot.
Davies further agrees, at Cabot's request and expense, to provide assistance to
Cabot in every reasonable way to perfect and vest title in and to such
inventions, improvements and technical information, including all patents,
copyrights and other intellectual property rights therein, in Cabot and to
assist Cabot in every reasonable way in obtaining and enforcing patents,
copyrights, and other intellectual property rights in and to such inventions,
improvements and technical information throughout the world.
(b) The parties acknowledge that over the course of their relationship
and prior to the date of this Agreement, they, individually or jointly, have
created or produced certain inventions, improvements and technical information
relating to the processes and techniques for dispersing metal oxides (the
"Existing IP"). Except as provided in Section 8.2 hereof, the portion of the
Existing IP created or produced solely by Davies is referred to herein as the
"Davies IP." The portion of the Existing IP created or produced solely by Cabot
or jointly by Cabot and Davies, together with the Term IP, is referred to herein
as the "Cabot IP."
9.2 Licenses.
(a) Davies hereby grants to Cabot a fully paid-up, nonexclusive,
irrevocable, world-wide, perpetual license to use the Davies IP, including the
right for Cabot to sub-license the Davies IP to any of its subsidiaries,
affiliates or any third parties (collectively the "Sub-licensees").
Notwithstanding Section 8.3 hereof, the license provided for by this Section
9.2(a) shall include Cabot's and the Sub-licensees' right to use the Proprietary
Information of Davies.
(b) Subject to Section 9.3 hereof, Cabot hereby grants to Davies a fully
paid-up, nonexclusive, irrevocable, world-wide, perpetual license to use the
Cabot IP, provided, however, that Davies may neither transfer any or all of the
Cabot IP to any third party, nor grant a sub-license with respect to any or all
of the Cabot IP.
(c) The licenses granted pursuant to this Section 9.2 shall survive the
termination of this Agreement.
9.3 Use of IP to Benefit Competitors. Davies agrees that from and
after the date hereof, and notwithstanding any termination of this Agreement, it
will not use either the Davies IP or the Cabot IP for the benefit of any entity
which, directly or indirectly, competes with any business carried on by Cabot or
any of Cabot's affiliates.
5
<PAGE> 6
SECTION 10. RIGHT OF FIRST REFUSAL TO PURCHASE DAVIES' BUSINESS
10.1 Offer.
(a) If, at any time, Davies, Donn Davies or JoAnn Davies desires to sell
part or all of the equity of Davies (in an aggregate amount greater than 10% of
the total equity) or the assets owned by Davies and used or useful in connection
with its metal oxide dispersion business (in a single transaction or series of
transactions) (the portion of assets or equity, as the case may be, that Davies,
Donn Davies or JoAnn Davies desires to sell referred to herein as the
"Business"), whether by merger, stock sale, asset sale or otherwise or in a
single transaction or a series of transactions, such party or parties shall
submit a written offer (the "Offer") to sell the Business to Cabot as provided
herein. The Offer shall disclose which assets or stock is proposed to be sold,
the terms and conditions, including price and payment terms, of the proposed
sale, and the prospective purchaser of the Business. The Offer shall further
state that Cabot may acquire all but not less than all of the Business for the
price and upon the other terms and conditions set forth therein.
(b) If Cabot wishes to purchase the Business at the price and on the
terms and conditions set forth in the Offer, it shall, within 30 days from the
date of the Offer, notify Davies in writing (the "Acceptance").
10.2 No Transfer Except as Provided. Davies shall not, at any time
during the Term of this Agreement, in any manner convey or transfer the
Business, or any part thereof, except in accordance with the terms and
conditions contained in this Section 10.
10.3 Right to Sell to Third Party. If Cabot does not provide Davies
with an Acceptance within the 30-day period set forth in Section 10.1(b) hereof
(or if Cabot by notice to Davies earlier waives its right to purchase), Davies
shall be free, during the 120-day period following Davies' submission of the
Offer pursuant to Section 10.1(a) hereof, to convey the Business to the third
party identified in the Offer on terms and conditions (including price) no more
favorable to the third party than those contained in the Offer. If Davies does
not sell the Business within such 120-day period, the Business shall again
become subject to this right of first refusal.
10.4 Right to Remove Assets. If Davies enters into an agreement to
sell the Business to such third party in accordance with the provisions of this
Section 10, it shall notify Cabot at least 30 days prior to the closing of such
sale and Cabot shall be permitted at Cabot's expense to remove the Cabot Assets
(as defined below) prior to any such sale.
SECTION 11. NONCOMPETITION AND RELATED PAYMENTS
(a) Each of Davies, Donn Davies and JoAnn Davies (collectively, the
"Davies Group") hereby acknowledges the value each shall receive from the
execution of this Agreement by the other parties hereto, including Cabot, and
the benefits associated therewith. In consideration for such value each member
of the Davies Group hereby agrees that during the Term and the Additional
Non-Compete Period (as defined below), none of the members of the Davies Group
shall provide or assist any other person or entity to provide metal oxide
dispersion services to any Competitor. In the event of a breach of this Section
11(a) by any member of the Davies Group, none of the members of the Davies Group
shall receive any part of the Noncompetition Payment. For purposes of this
Section 11, "Competitor" shall mean any person or entity (other than Cabot and
Cabot's affiliates) that, directly or indirectly, competes with any business
carried on by Cabot or any of Cabot's affiliates. As used herein, "Additional
Non-Compete Period" shall mean (a) if Davies shall give notice of election not
to renew the Agreement in accordance with Section 1 hereof (a "Non-Renewal
Notice") or if Cabot shall terminate this Agreement pursuant to Section 13.1
hereof, a period of [ ] after the termination of the Agreement, or (b) if
Cabot shall give a Non-Renewal Notice or if both Davies and Cabot shall give a
Non-Renewal Notice or if Davies shall terminate this Agreement pursuant to
Section 13.3 hereof, a period of [ ] after the termination of the Agreement.
6
<PAGE> 7
(b) If Cabot shall give a Non-Renewal Notice, if Davies shall terminate
this Agreement pursuant to Section 13.3 hereof or if Cabot shall terminate this
Agreement pursuant to Section 13.1(a), 13.1(b) or 13.1(c), Cabot shall pay to
the Davies Group in consideration for such noncompetition covenant the following
total amount (the "Noncompetition Payment"), to be divided equally among those
members of the Davies Group in existence or living at the commencement of the
Additional Non-Compete Period:
(i) [ ] if such notice by Cabot is at the end of the Initial
Term;
(ii) [ ] if such notice by Cabot is at the end of the first
Renewal Term (if at all);
(iii) [ ] if such notice by Cabot is at the end of the
second Renewal Term (if at all); and
(iv) [ ] if such notice by Cabot is at the end of any
Renewal Term thereafter.
The Noncompetition Payment will be payable in two equal installments on the date
of any such termination and on the first anniversary thereof.
SECTION 12. WARRANTIES
12.1 Warranty as to Products. Davies represents and warrants to Cabot
that, when shipped to Cabot or a customer of Cabot, as the case may be, by
Davies, the Products will conform in all respects to the specifications then in
effect and as then set forth in the materials specified on Schedule A hereto.
12.2 Quality Control. Quality control with respect to the Products
shall be performed in accordance with the terms contained in the materials
specified on Schedule A hereto.
12.3 Rejection. Subject to the following sentence, Cabot shall not be
obligated to accept or pay for Services relating to any batch or lot containing
Product not conforming to the specifications then in effect for such Product. If
such non-conformity is the result of materials or formulae provided by Cabot,
Cabot shall pay Davies for the Services relating to such batch or lot and such
amount shall count toward the volume requirements contained in Section 2.4
hereof.
12.4 Warranty as to Violations. Davies represents and warrants that
there is no past or present violation of, and there is no pending or threatened
action, suit or proceeding relating to, any alleged violation of any laws,
ordinances, rules or regulations relating to the environment or otherwise
governing, directly or indirectly, any hazardous substances, wastes or materials
in connection with the business, properties or operations of Davies.
SECTION 13. TERMINATION
Cabot and Davies each acknowledge that in the performance of this
Agreement, including any exercise of termination rights under this Section, it
will act in good faith.
13.1 Davies Default. Cabot may terminate this Agreement in the event
of any one or more of the following occurrences (each a "Davies Default"):
(a) upon Davies' filing a petition for adjudication as a bankrupt, for
reorganization or for an arrangement under any bankruptcy or insolvency law;
7
<PAGE> 8
(b) if any involuntary petition under any bankruptcy or insolvency law
is filed against Davies, is not dismissed within thirty (30) days thereafter and
is then continuing;
(c) if Davies shall make an assignment of all or substantially all of
its assets for the benefit of creditors, or if Davies' interest under this
Agreement shall be taken upon execution;
(d) if Davies shall fail to perform any material covenant or material
obligation hereunder, except as excused under Section 20.10 hereof, and such
failure has not been cured within thirty (30) days following Cabot's written
notice to Davies of such failure; or
(e) in the event that Davies is no longer owned or controlled by either
Donn Davies or JoAnn Davies.
13.2 Continuation of Supply. Notwithstanding any termination of this
Agreement, in the event of a Davies Default, Davies shall nevertheless continue
to have the obligation to perform the Services for Cabot for a period of 120
days after termination of this Agreement by Cabot on the terms and conditions
contained herein.
13.3 Cabot Default. Davies may terminate this Agreement in the event
of any one or more of the following occurrences (each a "Cabot Default"):
(a) upon Cabot's filing a petition for adjudication as a bankrupt, for
reorganization or for an arrangement under any bankruptcy or insolvency law;
(b) if any involuntary petition under such law is filed against Cabot,
is not dismissed within thirty (30) days thereafter and is then continuing;
(c) if Cabot shall make an assignment of all or substantially all of its
assets for the benefit of creditors, or if Cabot's interest under this Agreement
shall be taken upon execution; or
(d) if Cabot shall fail to perform any material covenant or material
obligation hereunder and such failure has not been cured within thirty (30) days
following Davies' written notice to Cabot of such failure.
13.4 Effect of Termination.
(a) Termination of this Agreement, whether by lapse of time, mutual
consent, operation of law, exercise of right of termination or otherwise shall
not affect the ownership interests in the respective proprietary and other
rights of the parties.
(b) Upon any termination of this Agreement, Davies shall continue to
have the obligation to perform the Services to fill any outstanding orders
received by Davies prior to the receipt of notice of termination.
(c) The provisions contained in Sections 8, 9, 10.4, 11, 12, 13.2, 13.4,
14, 15, 18, 19 and 20.9hereof shall survive the termination of this Agreement.
8
<PAGE> 9
SECTION 14. CABOT ASSETS; PROTECTION OF RIGHTS
14.1 Cabot Assets. The parties acknowledge and agree that Cabot owns
all right, title and interest in (a) the equipment and assets listed on Schedule
C hereto and which are located at Davies' facility in Hammond, Indiana, (b)
those assets purchased with the CapEx Investment pursuant to Section 5 hereof,
(c) all raw materials and packaging materials provided to Davies pursuant to
Section 2.2(a) hereof, and (d) all Products (collectively, the "Cabot Assets").
All of the Cabot Assets shall be subject to removal in accordance with the terms
of this Agreement; provided, however, that all pipes, cables and wiring
installed in the walls, ceilings, roof, floors or subfloors of Davies' facility
and used in connection with the Cabot Assets shall remain property of Davies
whether supplied or installed by Cabot or Davies.
14.2 Protection of Rights. Davies shall do all such things and
execute all such documents (including without limitation, financing statements)
as Cabot deems necessary or desirable to enable Cabot to protect its title to
and preserve its rights in the Cabot Assets.
SECTION 15. REMEDIES
The relationship between Davies, Donn Davies or JoAnn Davies on the one
hand, and Cabot on the other hand, and which is reflected in this Agreement is
unique and has a value which may not be readily measured in monetary terms. Each
of Cabot, Davies, Donn Davies and JoAnn Davies agrees that in the event of a
violation by it of any of its undertakings hereunder, the non-breaching party
shall be entitled (a) to specific performance and injunctive and other equitable
relief; (b) to recover from the breaching party monetary damages caused by any
such violation; and (c) to any other rights and remedies that may be available
at law or in equity, which rights and remedies may be exercised, at the option
of the non-breaching party, concurrently with any other right or remedy provided
in this Agreement. The remedies provided herein shall not be exclusive and shall
be in addition to any other rights or remedies now or hereafter existing at law
or in equity, by statute or otherwise.
SECTION 16. RELATIONSHIP OF PARTIES
Davies and Cabot are each independent contractors. Nothing herein
contained shall be construed to place Davies and Cabot in the relationship of
principal and agent, master and servant, partners, joint venturers, and, except
as otherwise set forth in this Agreement, neither party shall have, expressly or
by implication, the power to represent themselves as having any authority to
make contracts in the name of or binding upon the other, or to obligate or bind
the other in any manner whatsoever.
SECTION 17. COMPLIANCE WITH LAWS
Davies warrants and agrees that during the Term it shall observe and
comply in all material respects with all applicable federal, state, local and
foreign laws, ordinances, statutes, standards, rules, regulations and orders,
including but not limited to those relating to safety and health and the
environment. Davies shall be responsible for obtaining all permits and licenses
from governmental authorities and from private parties that are required in
connection therewith. Davies shall be responsible for the handling, disposal and
release of packaging material waste generated by Davies during the term of this
Agreement. Cabot shall be responsible for the disposal of all off-quality
Product, except for that which is off-quality through no fault of Cabot. Cabot
and Davies shall make good faith efforts to jointly pursue a waste minimization
program in connection with the manufacturing of Products pursuant to this
Agreement.
9
<PAGE> 10
SECTION 18. CONSENTS; NOTICES
Unless otherwise set forth herein, whenever any consent or approval is
required of either party, it must be given to the other party in writing and
delivered in accordance with the provisions of this Section 18. Any notice of a
party shall be in writing and shall be given by (a) telecopier with original
posted first class mail, postage prepaid, within two (2) business days
thereafter; (b) certified or registered mail with an acknowledgment of receipt,
postage prepaid, return receipt requested; or (c) a reputable private courier,
such as Federal Express, which provides evidence of receipt as a part of its
delivery service, and addressed as follows:
If to Cabot: Cabot Corporation
500 Commons Drive
Aurora, IL 60504
Attn: Operations Director
Telecopier: (630) 585-9981
If to Davies: Davies-Imperial Coatings, Inc.
1275 State Street
P.O. Box 790
Hammond, IN 46325
Attn: Donn T. Davies
Telecopier:
---------------
If to Donn T. Davies: Donn T. Davies
c/o Davies-Imperial Coatings, Inc.
1275 State Street
P.O. Box 790
Hammond, IN 46325
Telecopier:
---------------
If to JoAnn Davies: JoAnn Davies
c/o Davies-Imperial Coatings, Inc.
1275 State Street
P.O. Box 790
Hammond, IN 46325
Telecopier:
---------------
or to such other address as may be designated in writing by any of the parties
from time to time in accordance herewith, and shall be deemed delivered two (2)
business days following delivery by hand, by private courier or when so
telecopied and five (5) business days following proper dispatch by certified or
registered mail. A business day is any Monday through Friday on which first
class mail is delivered.
SECTION 19. ATTORNEYS' FEES
If any action or proceeding is brought to enforce or interpret any
provision of this Agreement then, in addition to any other relief to which the
prevailing party may be entitled, the prevailing party shall be entitled to
recover its reasonable costs and attorneys' fees.
10
<PAGE> 11
SECTION 20. GENERAL
20.1 Severability. If any provision of this Agreement shall be found
to be invalid or unenforceable, then such provision or provisions shall not
invalidate or in any way affect the enforceability of the remainder of this
Agreement and such provision or provisions shall be curtailed and limited to the
extent necessary to bring the Agreement within any legal requirement and the
parties shall negotiate in good faith with respect to an equitable modification
of the provision or application thereof held to be invalid.
20.2 Modification; Waivers. Except as expressly provided herein, this
Agreement may be modified or amended only with the written consent of each party
hereto. Neither party hereto shall be released from its obligations hereunder
without the written consent of the other party. The observance of any term of
this Agreement may be waived (either generally or in a particular instance and
either retroactively or prospectively) by the party entitled to enforce such
term, but any such waiver shall be effective only if in a writing signed by the
party against which such waiver is to be asserted. Except as otherwise
specifically provided herein, no delay on the part of either party hereto in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any waiver on the part of either party hereto of any right,
power or privilege hereunder operate as a waiver of any other right, power or
privilege hereunder nor shall any single or partial exercise of any right, power
or privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder.
20.3 Succession. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective successors and other
legal representatives and, to the extent that any assignment hereof is permitted
hereunder, their assignees.
20.4 Counterparts. This Agreement may be executed in counterparts.
Each counterpart, including a signature page executed by each of the parties
hereto, shall be an original counterpart of this Agreement, but all of such
counterparts together shall constitute one instrument.
20.5 Further Assurances. Each party agrees to provide any additional
documents and take any such further action as may be reasonably requested by the
other party in order to carry out the purpose and intent of this Agreement.
20.6 Entire Agreement. This Agreement contains the full and complete
undertaking and agreement among the parties hereto with respect to the within
subject matter, and supersedes all other agreements between Cabot on the one
hand, and Davies, Donn Davies, or JoAnn Davies on the other, whether written or
oral except any confidentiality agreements between the parties, which shall, to
the extent such agreements do not contradict the terms of this Agreement,
continue in effect.
20.7 Headings. The headings of the sections and other subdivisions of
this Agreement are for convenient reference only. They shall not be used in any
way to govern, limit, modify, construe this Agreement or any part or provision
thereof nor otherwise be given any legal effect.
20.8 Assignees and Third Parties. This Agreement may not be assigned
by either party without the prior written consent of the other party and any
attempted assignment without such consent shall be null and void; provided,
however, that Cabot may assign this Agreement to a subsidiary or affiliated
company.
20.9 Governing Law. This Agreement shall be governed by and construed
and enforced in accordance with the laws of the Commonwealth of Massachusetts,
without giving effect to principles of conflicts or choice of laws of
Massachusetts or of any other jurisdiction.
11
<PAGE> 12
20.10 Force Majeure. Each of the parties hereto shall be excused from
delays in performing or from failure to perform hereunder to the extent that
such delays or failures result from causes beyond the reasonable control of such
party; provided that, in order to be excused from delay or failure to perform,
such party must act diligently to remedy the cause of such delay or failure.
[remainder of page intentionally left blank]
12
<PAGE> 13
IN WITNESS WHEREOF, the parties hereto have set their hands to this
Agreement as a sealed instrument and have delivered this Agreement as of the day
and year first above written.
DAVIES-IMPERIAL COATINGS, INC.
By: /s/ Donn Davies
-------------------------------------------
Its: President
CABOT CORPORATION
By: /s/ Matthew Neville
-------------------------------------------
Its: Vice President and General Manager
Solely for purposes of Sections 10.1, 11, 13.4, 15, 18,
19, 20.6 and 20.9:
/s/ Donn Davies
-------------------------------------------
Donn Davies
Solely for purposes of Sections 10.1, 11, 13.4, 15, 18,
19, 20.6 and 20.9:
/s/ JoAnn Davies
-------------------------------------------
JoAnn Davies
13
<PAGE> 14
SCHEDULE A
Products, Materials Specifying Specifications, Formulae,
Processes, Quality Control, Maintenance
<TABLE>
<CAPTION>
- ----------------------------------------------------------------------------------------------------------------------------------
FORMULA CONTROL PLAN SPECIFICATION DAVIES TEST METHODS
PRODUCT (REVISION DATE) (EFFECTIVE DATE/ REVISION LEVEL) (SPECIFICATION NO./ (TEST METHOD NUMBER)
REVISION DATE)
- ----------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
[ ] 9/19/96 8-5-96, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 5/04/95 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 9/27/94 4-28-98, Rev B [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 10/07/94 6-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 9/18/96 6-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 3/28/95 5-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 7-10-98 5-1-97, Rev A [ ] 101, 300
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 5/04/95 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 7/5/94 8-5-96, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 2/1/93 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 7/5/93 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 7/6/94 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 7/16/93 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 9/27/94 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 11/18/93 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 5/16/96 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 7/6/94 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 7/6/94 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 8/23/96 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 8/23/96 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 8/23/96 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 9/18/96 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 8/23/96 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 1/12/96 10-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 1/12/96 5-1-97, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 5/04/95 4-28-98, Rev B [ ] 101, 200, 300, 302, 600
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 12-June-98 8-5-96, Rev A [ ] 101, 200, 300, 302, 600
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 5/4/95 4-28-98, Rev B [ ] 101, 200, 300, 302, 600
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 5/13/97 10-1-97, Rev A [ ] 101, 200, 300, 302
[ ]
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 7/11/97 5-1-97, Rev A [ ] 101, 200, 300, 302, 400,
[ ] 600, 606
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 5/17/96 N/A [ ] 101, 200, 300, 302, 500
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 15
<TABLE>
<S> <C> <C> <C> <C>
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] [ ]
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 5/17/96 8-5-96, Rev A [ ] 101, 200, 300, 302, 500
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 3/21/96 N/A [ ] 101, 200, 300, 302, 500
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 5/23/96 8-5-96, Rev A [ ] 101, 200, 300, 302, 501
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 7/02/96 5-1-97, Rev A [ ] 101, 200, 300, 302, 501
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 9/19/96 8-5-96, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
[ ] 12/18/96 8-5-96, Rev A [ ] 101, 200, 300, 302
- ---------------------------------------------------------------------------------------------------------------------------------
[ ] 9/19/96 8-5-96, Rev A [ ] 101, 200, 300, 302
- ----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE> 16
SCHEDULE B
Prices
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------
CONVERSIONS CHARGES:
- --------------------
- --------------------------------------------------------------------------------------------------------------------------
Product Weight per 55-gal. Drum Price/Lb., F.O.B.
- ------- ----------------------- -----------------
Hammond, IN
-----------
- --------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
[ ] 516 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 500 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 491 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 531 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 505 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 506 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 492 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 548 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 509 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 516 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 506 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 500 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 499 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 500 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 500 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 500 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 500 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 500 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 548 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 492 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 495 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 492 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 613 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 489 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 493 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 17
<TABLE>
<S> <C> <C>
- --------------------------------------------------------------------------------------------------------------------------
[ ] 536 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 536 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 531 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 504 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 489 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 480 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 480 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 480 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 480 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 480 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 516 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
[ ] 515 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------
MISCELLANEOUS CHARGES:
- ----------------------
- --------------------------------------------------------------------------------------------------------------------------
Monthly Storage $[ ]
- --------------------------------------------------------------------------------------------------------------------------
Monthly Equipment Maintenance $[ ]
- --------------------------------------------------------------------------------------------------------------------------
Sample preparation
25 or less $[ ]
over 25 $[ ]
- --------------------------------------------------------------------------------------------------------------------------
Hazardous Material Labeling Charge $[ ]
- --------------------------------------------------------------------------------------------------------------------------
Dangerous Goods Preparation $[ ]
- --------------------------------------------------------------------------------------------------------------------------
Palletizing with 6-way bands $[ ]
- --------------------------------------------------------------------------------------------------------------------------
Pallets for Bracing Intel Tote Loads $[ ]
- --------------------------------------------------------------------------------------------------------------------------
Drum Condoms
single $[ ]
double $[ ]
- --------------------------------------------------------------------------------------------------------------------------
Power Washing
Regular $[ ]
Wash and Insert Dip-Tubes $[ ]
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
2
<PAGE> 18
<TABLE>
<S> <C>
- --------------------------------------------------------------------------------------------------------------------------
Aurora Delivery via Davies truck $[ ]
- --------------------------------------------------------------------------------------------------------------------------
Recertify Totes and install
certification placard $[ ]
- --------------------------------------------------------------------------------------------------------------------------
Install metal [ ] on totes $[ ]
- --------------------------------------------------------------------------------------------------------------------------
Rebills $[ ] per invoice
- --------------------------------------------------------------------------------------------------------------------------
</TABLE>
3
<PAGE> 19
SCHEDULE C
Asset List
Cabot Owned Equipment at Davies*
10/27/98
*The parties agree that this schedule is substantially
accurate as of October 27, 1998, but that greater detail,
and any assets inadvertently left off the list, will be
added within a reasonable time after execution of the
agreement
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
DESCRIPTION QUANTITY
- ---------------------------------------------------------------------------------------------------------
<S> <C>
10,000 pound Cardinal Scale 1
- ---------------------------------------------------------------------------------------------------------
500 pound scale 1
- ---------------------------------------------------------------------------------------------------------
75 pound scale 1
- ---------------------------------------------------------------------------------------------------------
[ ] 5
- ---------------------------------------------------------------------------------------------------------
[ ] 5
- ---------------------------------------------------------------------------------------------------------
[ ] 10
- ---------------------------------------------------------------------------------------------------------
Clean filling room 2
- ---------------------------------------------------------------------------------------------------------
36,000 BTU air conditioners 4
- ---------------------------------------------------------------------------------------------------------
24,000 BTU air conditioners 2
- ---------------------------------------------------------------------------------------------------------
200,000 BTU furnaces 2
- ---------------------------------------------------------------------------------------------------------
York air handler 2
- ---------------------------------------------------------------------------------------------------------
Stainless steel power washers 5
- ---------------------------------------------------------------------------------------------------------
Brass power washer 1
- ---------------------------------------------------------------------------------------------------------
[ ] 1
- ---------------------------------------------------------------------------------------------------------
[ ] 1
- ---------------------------------------------------------------------------------------------------------
[ ] 3
- ---------------------------------------------------------------------------------------------------------
Single housing filter unit 8
- ---------------------------------------------------------------------------------------------------------
Double housing filter units 5
- ---------------------------------------------------------------------------------------------------------
[ ] 1
- ---------------------------------------------------------------------------------------------------------
[ ] 1
- ---------------------------------------------------------------------------------------------------------
[ ] 1
- ---------------------------------------------------------------------------------------------------------
[ ] 1
- ---------------------------------------------------------------------------------------------------------
[ ] 1
- ---------------------------------------------------------------------------------------------------------
[ ] 3
- ---------------------------------------------------------------------------------------------------------
[ ] 6
- ---------------------------------------------------------------------------------------------------------
Bag dump/compactor units 4
- ---------------------------------------------------------------------------------------------------------
RO equipment only (excludes instrumentation) 1
- ---------------------------------------------------------------------------------------------------------
Mettler Toledo density meter 1
- ---------------------------------------------------------------------------------------------------------
[ ] 1
- ---------------------------------------------------------------------------------------------------------
Weber label printers 2
- ---------------------------------------------------------------------------------------------------------
VWR lab oven 1
- ---------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 20
<TABLE>
<S> <C>
- ---------------------------------------------------------------------------------------------------------
[ ] 1
- ---------------------------------------------------------------------------------------------------------
[ ] 2
- ---------------------------------------------------------------------------------------------------------
And lab balance 1
- ---------------------------------------------------------------------------------------------------------
</TABLE>
2
