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EXHIBIT 10.9
SUPPLY AND PURCHASE AGREEMENT
CAUSTIC SODA
BETWEEN :
"CHLORALP" a corporation organized under the laws of France , whose registered
office is located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ , hereinafter
referred to as "ChlorAlp",
on the one hand,
AND :
▇▇▇▇▇-▇▇▇▇▇▇▇ CHIMIE, a Societe Anonyme organized under the laws of France,
having a corporate capital of 2.692.300.400 French Francs, whose registered
office is located at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, acting in
its own name and in the name and on the behalf of the Affiliates indicated in
Schedule 2 attached hereto, for as long as they are Affiliates (as defined in
Article 7.1. hereinbelow) of RPC, hereinafter collectively referred to as "RPC",
on the other hand,
ChlorAlp and RPC being hereafter referred to as the "Parties" ;
WITNESSETH :
- whereas ChlorAlp operates at Pont de Claix (Isere) a unit producing
chlorine and caustic soda products,
- whereas RPC operates several production units at Pont de Claix (Isere)
and other sites in France, and needs regular supply of caustic soda for
production of several products,
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- whereas ChlorAlp and RPC wish to enter into a long-term supply and
purchase agreement in order to provide RPC with caustic soda ;
ARTICLE 1 - OBJECT
The object of the present agreement (the "Agreement") is to define the terms and
conditions according to which ChlorAlp shall supply RPC, and RPC shall purchase
from ChlorAlp various grades of caustic soda, as indicated in Article 2.1. below
and as defined with their respective specifications ( the " Specifications " )
in Schedule 1 of this Agreement (hereinafter the "Product").
ARTICLE 2 - SUPPLY AND PURCHASE OBLIGATIONS
2.1. Caustic Soda Grades
Caustic Soda purchased from ChlorAlp by RPC under this Agreement shall
be of different grades according to the various uses and sites of RPC
concerned, i.e :
- Desalinated Caustic Soda ("Soude dessalee" ou "DS")
- Standard Caustic Soda ("Soude Standard")
- Mixed Caustic Soda ("Soude Melangee")
- Mercury Caustic Soda ("Soude Mercure")
- Diluted Mercury Caustic Soda ("Soude Diluee Mercure")
- Diluted Standard Caustic Soda ("Soude Diluee Standard")
- Electrolytic Caustic Soda ("Soude Electrolytique")
2.2. Quantity
The quantity of Product, which ChlorAlp undertakes to supply to RPC,
and which RPC undertakes to purchase from ChlorAlp, during each
calendar year of the Term of this Agreement as defined in Article 6
hereafter is defined as follows (hereinafter the "Quantity" or "Q") :
ChlorAlp undertakes to supply to RPC, and RPC undertakes to purchase
from ChlorAlp, during each calendar year of the Term of this Agreement
as defined in Article 6 hereafter, one hundred per cent (100 %) of the
quantities of Caustic Soda (expressed as a 100 % NAOH ) needed by RPC
for the captive use of any of its sites located in France (hereinafter
the "Quantity" or "Q") .
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For the calendar year 1996, the annual Quantity of Caustic Soda was
approximately [*] Metric Tons and for the calendar year 1997, the
annual Quantity is estimated to be around [*] Metric Tons.
For the implementation of this Article 2.1., the term "captive use"
shall mean the use of the Product made by RPC exclusively for its
internal requirements, existing during the Term of this Agreement, in
any of its sites located in France.
2.3. Supply Program
Each year, prior to October 31, RPC will notify to ChlorAlp of its
estimated purchase requirements for the Product during the subsequent
calendar year (the "Estimated Purchase Requirements"). The Estimated
Purchase Requirements divided by 12 months shall constitute the basis
for RPC's monthly orders, except during the months when turnarounds are
conducted. Therefore, RPC shall not unreasonably by more than 20 %
decrease or increase its monthly orders without prior notice to
ChlorAlp.
At least five business days before the first business day of month (m),
RPC shall send to ChlorAlp firm orders for deliveries of Product for
month (m) and shall communicate to ChlorAlp its best estimations of the
quantities of Product planned to be ordered for the two following
months (m + 1) and (m + 2), unless otherwise agreed between the
Parties. The calendar for weekly deliveries shall be sent by RPC to
ChlorAlp each Thursday at the latest for the following week, unless
otherwise agreed between the Parties.
RPC and ChlorAlp shall meet at the minimum twice a year with a view to
exchanging mutual information on RPC 's demands and needs, to updating
schedules and solving any difficulties in applying this Agreement.
2.4. Delivery
Caustic Soda shall be delivered by pipe, truck or railcar either EXW
Pont de Claix or DDP, as indicated in Schedule 2 attached hereto with
reference to the purchase prices, to the various delivery sites
indicated in the said Schedule 2, in accordance with the 1990 Incoterms
published by the International Chamber of Commerce . Turnarounds . The
Parties agree to coordinate in order to decide jointly the date and
duration of the turnarounds of their respective Pont de Claix
production units .
* Indicates information deleted based on a Confidential Treatment Request
pursuant to Rule 406 under the Securities Act of 1933.
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ARTICLE 3 - PRICE
3.1. The "Initial Price" ("P0") of the Product applicable during the fourth
quarter of 1997 and to be paid by RPC to ChlorAlp is defined - before
taxes and per metric ton - in Schedule 2 attached hereto.
3.2. Unless otherwise agreed upon between the Parties in specific cases,
such Initial Price shall be revised for the first time on January 1st
1998, and thereafter quarterly, in accordance with the following
revision formula :
[*]
where :
P(n) is the revised Price to be applied for the current quarter (n)
(the "Revision Quarter").
P(n - 1) : is the Price applied to the Product for quarter (n - 1)
immediately preceding the Revision Quarter.
H is the average value for a quarter of the monthly prices ( middle of
the range ) of Caustic Soda in France as published in the Harrimann
Chemsult Monthly Report.
H (n - 1) is the value of H for quarter (n - 1) immediatly preceding
the Revision Quarter.
H (n - 2) is the value of H for quarter (n - 2) immediately preceding
quarter (n - 1).
3.3. ChlorAlp shall invoice RPC on a monthly basis .
Payment term shall be of thirty days, end of the month, the tenth, and
made by bank transfer.
3.4. For purpose of this Section, Price and other prices of reference shall be
set in accordance with the INCOTERMS 1990 , as set forth in Schedule 2 , and
before taxes .
* Indicates information deleted based on a Confidential Treatment Request
pursuant to Rule 406 under the Securities Act of 1933.
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ARTICLE 4 - QUALITY . PRODUCT WARRANTY.
ChlorAlp warrants that the Product shall comply with the specifications as
described in Schedule 1 attached to the present Agreement (the
"Specifications"), and shall be free from defects and of good material and
▇▇▇▇▇▇▇ ship.
ChlorAlp shall be liable only for replacement of non-conforming lot of Product
under the following conditions :
All claims by RPC for non-conforming Products shall be deemed waived unless made
by RPC in writing within [twenty (20) days] from the delivery date of such
Product .
If ChlorAlp agrees with RPC's claim, it will, at its expense, immediately
replace the non-conforming lot of Product by a conforming lot of same.
If ChlorAlp does not agree with RPC's claim, either Party may request an expert
appraisal by an independant laboratory, to determine whether said Product
complies with said Specifications. The report of such independant laboratory
shall be conclusive and binding on the Parties hereto. All expenses related to
such appraisal shall be borne by the Party found in default .
RPC and ChlorAlp being "industrial of the same speciality", RPC acknowledge and
agree that the above warranty constitutes its exclusive remedy and ChlorAlp's
total liability for claims regarding any defective Product including but not
limited to "hidden defaults" ("vices caches") and that ChlorAlp excludes any
implied warranties of merchantability and fitness for a particular purpose and
all other express or implied representations or warranties. RPC waives all other
claims against ChlorAlp and ChlorAlp shall not be liable to RPC for any other
direct or indirect damages .
All limitations on RPC's remedies and on ChlorAlp's liability shall survive the
expiration, termination or cancellation of this Agreement.
ARTICLE 5 - TRANSFER OF TITLE AND RISK
Title to Caustic Soda and all risk for loss or any damage thereto shall pass to
RPC as the Product passes in accordance with the terms of delivery referred to
under Article 2.4 above .
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ARTICLE 6 - TERM
This Agreement shall come into force on October 1st, 1997, and, except as
provided in Article 7.2 below, shall remain in force for a period of five (5)
years (the "Term").Unless terminated by either Party giving written notice to
the other Party not less than one ( 1 ) year prior to the end of the Term , it
shall be renewed automatically for an unlimited period. Thereafter , it shall be
terminated by either Party giving at any time to the other Party not less than
(1) year prior written notice.
ARTICLE 7 - GENERAL PROVISIONS
7.1. Secrecy
Each Party agree that all information disclosed to it by the other Party
under the present Agreement (the "Information") shall be held and treated
in the utmost and strictest confidence and neither Party shall use said
Information to benefit itself or others, except for the purpose defined
in Article 1 hereabove. The receiving Party shall not disclose any
Information to a third Party unless ( i ) expressly authorized in writing
to do so by the disclosing Party, which shall not unreasonably withhold
its consent, provided, however, that, either Party may transmit any
Information disclosed hereunder to any of its Affiliate or ( ii ) the
disclosure of such Information is required by law, regulation, legal or
judicial proceedings , further to a tax investigation or a request from
any governmental or judicial authorities. Each Party shall be held
accountable for the compliance of these Affiliates with the terms of this
Article. For the implementation of this Agreement, the term "Affiliate"
of either Party shall mean a company which, directly or indirectly,
controls, is controlled by, or is under common control with said Party.
"Control" shall mean the control as defined by Articles 355.1 and
following of the law of July 24, 1996, on commercial companies.
The Parties agree that, notwithstanding the preceding provision, the
receiving Party shall be under no obligation with respect to any
Information, which it can demonstrate that :
- was, at the time of disclosure, available to the general
public, or
- became, at a later date, available to the general public
through no fault of the receiving Party, or,
- was in it possession before receipt, or
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- was disclosed to it without restriction on disclosure by a
third party which has the lawful right to disclose said
Information.
All obligations contained in this Article 7.1 shall survive for ten years
after termination of the present Agreement.
7.2. Early Termination
If either Party is in material breach of any of the terms and conditions
contained herein, the Party not in default shall be entitled to terminate
this Agreement forthwith upon giving notice in writing to the Party in
default and specifying the nature of the default, provided that the Party
in default shall not be entitled to rely on this provision. The Party in
default shall have a ninety (90) day delay after receipt of such a notice
to cure its default. Unless such default is cured no later than 90 days
following the receipt of such notice, this Agreement may be terminated at
the sole option of the Party giving such notice , provided that , in such
case, the terminating Party shall give the Party in default a prior
written termination notice within a thirty days delay following the
expiration of the 90 days delay .
Any such termination hereunder shall not prejudice any rights or benefits
accrued prior to the date of termination.
7.3. Force Majeure
Neither Party shall be held liable for any failure or delay in supplying
or taking delivery of the Product in accordance with the terms and
conditions of the present Agreement, where such failure or delay is due
to circumstances beyond its reasonable control, including, without
limitation, acts of God, regulations or acts of Government, strikes,
lock-outs, explosions, implosions, fires, floods, wars, insurrections,
riots, embargoes.
The Party affected by said circumstances shall promptly notify the other
Party of the existence thereof and shall use every reasonable effort to
eliminate or correct the cause preventing performance of this Agreement
as soon as possible.
Should ChlorAlp, under such Force Majeure circumstances, have a shortfall
of Caustic Soda, then ChlorAlp shall make its best efforts to minimize
the consequences of such
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Force Majeure for RPC and to resume as promptly as possible its
obligations under the present Agreement.
When the reason for invoking Force Majeure has ceased to exist, the
affected Party shall notify the other Party thereof and promptly resume
its obligations under this Agreement.
7.4. First Priority Supply
It is agreed upon between the Parties that in case ChlorAlp has a
shortfall of Caustic Soda due to whatever reason, including Force Majeure
circumstances, ChlorAlp shall at any time supply RPC 's requirements on a
first priority basis.
7.5. Hardship
In entering in this long-term Agreement, the Parties hereto agree that it
is impracticable to make provision for every contingency which may arise
during the term thereof, and the Parties hereby agree it to be their
intention that this Agreement shall operate between them with fairness
and without substantial and disproportionate prejudice to the interests
of either, and that, if in the course of the performance of this
Agreement unfairness or substantial and disproportionate prejudice to
either Party is expected or disclosed, then the Parties will use their
best endeavours to agree upon such action as may be necessary to remove
or modify such unfairness or prejudice and to reestablish as much as
possible the initial fairness of the present Agreement.
7.6. Assignment
No Party shall assign this Agreement to any third party without the prior
written consent of the other Party, which consent shall not be
unreasonably withheld.
Notwithstanding the hereinabove provision, and provided that its assignee
undertakes to take over all of its rights and obligations set forth in
this Agreement, either Party hereto shall have the right to assign this
Agreement, upon written notice to the other Party but without its prior
written consent, to :
- any of its Affiliates, provided that, in such case, (i) the assignor
shall remain jointly and severally liable for enforcement by the
assignee of its obligations under this
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Agreement, and (ii) if the assignee cease to be an Affiliate company
of the assignor, this Agreement shall have to be reassigned by the
assignee to the assignor ;
- its successor in interest as a result of a statutory merger or
consolidation, or to a company acquiring all or substantially all
of its business including the part concerned by this Agreement.
7.7. Applicable Law
This Agreement shall be governed by and construed and enforced in
accordance with the laws of France.
All disputes, differences, or controversies between the Parties arising
out of or relating to this Agreement, including the performance,
breach, validity or interpretation thereof, that can not be amicably
resolved between them shall be exclusively and finally settled under
the Rules of Conciliation and Arbitration of the International Chamber
of Commerce by three arbitrators appointed in accordance with said
Rules. The arbitration proceedings shall take place in Paris and shall
be conducted in French and/or in English.
ARTICLE 8 - MISCELLANEOUS
8.1. Entire Agreement
This Agreement and the schedules attached hereto represent the entire
understanding and agreement and supersedes all prior agreements,
understandings or arrangements among the Parties hereto with respect to
the subject matter hereof and can be amended, supplemented or changed,
and any provision hereof can be waived, only by written instrument making
specific reference to this Agreement and duly signed by or on behalf of
the Parties to this Agreement.
8.2. Waiver
Failure by any Party to this Agreement to enforce complete and
punctual performance of any obligation of the other Party shall not be
deemed a waiver of such Party's right thereafter to enforce that or any
other term hereof.
8.3. Severability
If at any time subsequent to the Effective Date, any provisions of this
Agreement shall be held by any court of competent jurisdiction to be
illegal, void or unenforceable, such
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provision shall be of no force and effect, but the illegality or
unenforceability of such provision shall have no effect upon and shall
not impair the enforceability of any other provision of this
Agreement.There will be added automatically as a part of this Agreement
a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
8.4. Notices
Any notice or other communications required or permitted between the
Parties hereunder shall be sufficiently given if in writing and
personally delivered or sent by registered or certified mail, return
receipt requested, postage prepaid, or if sent by facsimile transmission
with confirmation of receipt addressed as follows or to such other
address as the Parties shall have given notice of pursuant hereto :
ChlorAlp : Attn : General Manager
25 Quai ▇▇▇▇ ▇▇▇▇▇▇
92 408 Courbevoie
RPC : ▇▇▇▇▇-▇▇▇▇▇▇▇ Chimie S.A.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Cedex
Attn : M.POLAUD
IN WITNESS WHEREOF, the Parties hereto have duly executed this Agreement, as of
the day and year hereinafter written.
made in Paris
on October 17, 1997
▇▇▇▇▇-▇▇▇▇▇▇▇ CHIMIE S.A CHLORALP
By : /s/ M. Polaud By : /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------- ------------------------------
Title : President Title :
----------------------------- ---------------------------
RP Basic Industrial Products
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SCHEDULE 1 - SPECIFICATIONS
CAUSTIC SODA
Schedule 1 will be provided upon Request.
* Indicates information deleted based on a Confidential Treatment Request
pursuant to Rule 406 under the Securities Act of 1933.
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SCHEDULE 2 - PRICES
[*]
* Indicates information deleted based on a Confidential Treatment Request
pursuant to Rule 406 under the Securities Act of 1933.