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SUPPLY AGREEMENT
FOR THE
SUPPLY OF
SILICON METAL
BETWEEN
SIMCALA, INC.
AND
ALCAN ALUMINUM LTD.
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Certain portions of this exhibit have been deleted and confidentiality
filed with the Securities and Exchange Commission pursuant to a confidential
treatment request under Rule 24b-2 of the Securities Exchange Act of 1934, as
amended. The confidential portions of the exhibit that have been deleted are
indicated by "[***]" inserted in place of such confidential information. In
addition, all exhibits to this exhibit have been deleted and confidentiality
filed with the Securities and Exchange Commission.
SUPPLY AGREEMENT
1. CONTRACT DURATION:
This Agreement shall be effective April 1, 2000 and continue for a
period of four years through December 31, 2003 and year to year
thereafter unless canceled by either party upon 180 days written notice
prior to the expiry of the initial term or any renewal thereof.
2. Simcala, Inc. agrees to sell and Alcan agrees to buy effective July 1,
2000 silicon metal as defined in section 5 of this Agreement.
3. SHIPPING TERMS & PACKAGING:
Sebree
[***]
Montreal, Canada
[***]
4. BASIC BULK PRICE:
All prices are stated in U.S. currency. The silicon price affective on
April 1, 2000 for 2QOO is [***] per pound.
[***]
In the event that the above publication is no longer available, both
parties will meet to agree upon another basis on which to establish a
price.
MARKET CONDITIONS
[***]
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SEBREE PRICE
[***]
CANADIAN PRICE
[***]
5. QUANTITY:
[***]
6. QUALITY:
[***]
- Material must be [***]
- Material should be [***]
7. TERMS: [***]
8. ASSET DISPOSAL:
Should Alcan dispose of any of their plants with their demands for
silicon covered by this Supply Agreement both Alcan and Simcala agree
to meet to discuss the affected volume. Once an agreement is reached on
the volume, an amendment to the Supply Agreement will be issued in
writing. If no agreement is reached within 90 days of such asset
disposal, an automatic adjustment of the volume equivalent to the
average of the last 9 month releases to the Company, the assets of
which have been disposed of by Alcan, will be applied to the monthly
releases under this Agreement, for the remaining term of it.
9. FORCE MAJEURE:
Neither the Buyer nor the Seller shall be liable for any delay in the
fulfillment of or failure to fulfill this Contract for any cause not
reasonably within their control (including without limitation any act
of God, shortage of water, energy or other raw materials supplies,
lock-out or strike or other labor trouble, whether or not the demands
of labor are within the ability of the party so affected to meet; war
or insurrection or other civil disruption, regulations or acts of
government, government agencies or judicial action), or any such cause
not reasonably within the control of Buyer's intended customers for
these goods. The party so affected shall give prompt notice thereof to
the other.
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In the event of any such cause affecting Buyer or Seller, Buyer or
Seller may, at its option cancel this contract in whole or in part, or
delay performance hereunder for any period necessitated by such cause
and in event of such delay, this Contract shall otherwise remain in
full force and effect. In the event of such cause affecting Seller and
only so long as such cause exists, at Buyer's option, Seller shall
allocate its available goods among the Buyer and Seller's other
then-existing contract customers in direct proportion to their
contractual rights.
Upon cessation of the effects of such cause, if Buyer or Seller so
elects, Seller shall resume deliveries hereunder when possible and
continue until the full contract quantity, or any portion agreed upon
by Buyer and Seller.
10. All and any silicon metal purchased through this contract will be for
Alcan's consumption within the United States and Canada.
11. Any resale of silicon metal out of this contract is not permitted.
12. WARRANTIES AND CLAIMS:
Seller warrants that (a) the Product sold hereunder will conform to the
description herein set forth, within the tolerances of Buyer's
specifications as described herein; (b) such Product will not be
defective in material or workmanship; (c) the title to such Product
which Seller will convey the Buyer will be good and marketable; (d) the
transfer of such Product by Seller to Buyer will be rightful and (e)
such Product will be delivered free from any security interest or other
lien or encumbrance created by, or otherwise arising out of acts or
omissions of Seller. In the event of a breach of any warranty by Seller
given hereby as to the Product herein Seller shall be notified thereof
by Buyer promptly after discovery thereof and in any event within 90
days after receipt of such Product by Buyer or in case of any breach
which cannot reasonable be detected by Buyer within 10 days after such
detection, and in any event within one year after receipt of such
Product by Buyer. If such breach has occurred, and such timely notice
has been given, Seller will, at Buyer's option, repair or replace such
Product or refund or appropriately adjust the purchase price thereof,
or, in the case of a breach in warranties (c), (d), or (e) above, take
other appropriate action to remedy such breach; disposition of such
Product to be repaired or replaced or as to which a refund is to be
made shall be pursuant to Buyer's directions and at Seller's expense,
Seller will be given a reasonable opportunity to investigate all claims
and Buyer will cooperate in any such investigation.
13. SEVERABILITY OF TERMS:
This Agreement and every provision hereof shall be deemed to be
severable, and in the event that any Article, Paragraph, or Provision
hereby is invalid or illegal, or in the event any Article, Paragraph or
Provision hereof shall be construed as preventing the formation of a
valid binding contract between the parties to this
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Agreement, any such Article, Paragraph or Provision shall be deemed to
be stricken from this Agreement, and the remainder of this Agreement
shall continue to be in full force and effect as though such Article,
Paragraph or Provision was not contained in this Agreement.
14. ADDITIONAL TERMS:
All and any of the conditions of this Agreement supersede: Alcan's
General Clauses Contract of Sale of Goods, see APPENDIX B.
15. APPLICABLE LAW:
This Agreement shall be governed as to all matters affecting its
validity, construction or performance by the laws of the Province of
Quebec.
16. M.F.N.
[***]
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Executed as of August 8, 2000.
SIMCALA, INC.
By: /s/
-------------------------------------
Date: August 8, 2000
-----------------------------------
ALCAN ALUMINUM LTD.
By: /s/
-------------------------------------
Date: August 8, 2000
-----------------------------------
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