1
EXHIBT 10.30
CAN SUPPLY AGREEMENT
This Agreement is made this 20th day of November, 1995, between
AMERICAN NATIONAL CAN COMPANY, a Delaware corporation, with its principal
offices at 0000 X. Xxxx Xxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000 ("ANC"), and
COCA-COLA ENTERPRISES INC., with its principal offices at P. O. Xxx 000000,
Xxxxxxx, Xxxxxxx 00000-0000 ("Buyer"), and covers the manufacture and supply by
ANC to Buyer and the purchase by Buyer of two-piece aluminum beverage can
bodies and ends (herein collectively referred to as "cans" or "containers") of
the specifications and quantities referred to hereinbelow.
WHEREAS, the parties are desirous of entering into a long-term supply
agreement covering certain of Buyer's requirements of Containers; and
WHEREAS, the parties are desirous of establishing pricing for the
containers to be purchased and sold hereunder, with a floor and ceiling cost
for aluminum ingot ("Ingot Band") which will, over the term of this Agreement,
limit the extreme volatility which both parties have experiences in the recent
past with respect to can pricing and particularly with respect to aluminum
costs; and
WHEREAS, in order to accomplish this goal of predictability of
pricing, the parties are willing to commit themselves to purchase and sell, as
the case may be, the quantity of containers stated herein utilizing aluminum
covered by an Ingot Band, and the parties recognize that each of them has the
ability to protect itself against the fluctuation in the cost of aluminum above
or below the Ingot Band by purchasing the appropriate downside or upside
protection, which is available in the marketplace.
NOW, THEREFORE, in consideration of the mutual covenants set forth
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereby agree as
follows:
1. Description of Products. This Agreement relates to containers
of the specifications set forth on Exhibit A attached hereto, required by Buyer
at its can filling location(s) set forth on Exhibit B (and at any additional or
substitute facilities designated by Buyer where Buyer may fill cans).
2. Term. The initial term of this Agreement shall be five (5)
years commencing January 1, 1996 and terminating December 31, 2000. This
Agreement shall be automatically extended for one additional year beyond the
initial term (i.e., until December 31, 2001) if, during the period July 1, 1999
through December 31, 1999, the daily London Metal Exchange cash settlement
price for aluminum ingot plus the Midwest premium for that ingot (the "Midwest
Ingot Price") is outside of the Ingot Band (i.e., above the ceiling cost or
below the floor cost) referenced on Exhibit C attached hereto, on more than 75%
of the dates when the market is open.
2
3. Volume.
(a) Buyer agrees to buy and ANC agrees to sell, in each calendar
year during the term of this Agreement, ## billion cans. Can bodies and ends
shall be purchased by Buyer and supplied by ANC in substantially equal volumes.
(b) The foregoing annual volume of containers to be purchased
hereunder may not be changed by Buyer during the terms of this Agreement
without the written consent of ANC although ANC will use its commercially
reasonable best efforts to accommodate year over year changes hereafter
requested by Buyer in its annual volume.
(c) ANC will not be required to provide more than ##% of Buyer's
annual band-priced volume hereunder in either of the following six month
periods throughout the term hereof: (i) April 1 through September 30; (ii)
October 1 through March 31.
(d) Buyer's annual forecasts of volume, provided for under
paragraph 6 below, shall each contain a breakdown of forecasted volumes for
each location set forth on Exhibit B (and any additional or substitute Buyer
filling locations), which forecasts shall remain in effect until adjusted by
Buyer upon reasonable advance notice to ANC; provided, however, that such
adjustments shall not affect Buyer's purchase commitment set forth in Paragraph
3(a) above.
4. Pricing
(a) Prices under this Agreement shall be established and adjusted
in accordance with the terms, conditions and limitations set forth on Exhibit C
attached hereto. In addition to the price adjustment mechanisms set forth on
Exhibit C, any changes in the specifications of containers supplied hereunder
may result in an upward or downward price adjustment.
(b) ANC will in no event be required to meet competitive band
formulas or other competitive offers driven by lower metal costs; however, and
notwithstanding the foregoing, ANC intends to be competitive with specific
offers not driven by lower metal costs.
(c) Buyer and ANC recognize and agree that fluctuations in the
price of aluminum may drive the spot price of aluminum above the ceiling price
or below the floor price of the Ingot Band, as such ceiling and floor prices
may be adjusted from time to time in accordance with Exhibit C. However, Buyer
and ANC agree to purchase and sell the quantities agreed to hereunder with
aluminum ingot costs no higher than such ceiling prices not lower than such
floor prices notwithstanding any such fluctuations. The parties recognize that
protection against any such market fluctuation is available to be purchased in
the marketplace.
(d) Buyer and ANC agree to share equally in any savings resulting
from reductions in the amount of metal used to make cans. Buyer's share of
such savings will be passed along to Buyer only after ANC has recovered the
cost of any expenditures made by it in connection with the implementation of
such metal reductions.
5. Payment Terms. Payment terms shall be: 1% 10, net 30 days.
Interest shall be assessed on all past-due amounts at the annual rate of two
(2%) percent above the prime rate of interest at the First National Bank of
Chicago, Chicago, Illinois.
##CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SEC
3
6. Delivery. Buyer shall advise ANC, prior to October 31, of its
annual requirements of containers under this Agreement for the upcoming
calendar year (the "Forecasted Volume"). ANC shall not be required under any
circumstances to sell band priced containers to Buyer in excess of such
Forecasted volume. If the Forecasted Volume is in excess of or less than the
volume referred to in subparagraph 3(a) above, ANC shall only be required to
use its commercially reasonable best efforts to provide such excess to Buyer or
accommodate such shortfall. In the event that the Forecasted Volume is in
excess of the volume referenced in subparagraph 3(a), ANC shall first attempt
to secure metal within the then current bank pricing range. If ANC is
unsuccessful in securing band pricing for such excess, then ANC shall so advise
Buyer and Buyer shall notify ANC whether ANC should purchase metal to satisfy
such excess requirements. If Buyer requests ANC to purchase such metal, the
metal price shall be based on the Midwest Ingot Price on the date ANC purchases
the metal.
7. Effect of Termination. Upon termination of this Agreement,
for any reason, Buyer shall accept all completed, specially fabricated or
lithographed containers and related items previously ordered, acquired or
committed for by ANC in reasonable quantities in anticipation of Buyer's normal
can requirements.
8. Warranties, Claims and Limitation of Liability.
(a) ANC hereby warrants to Buyer that the containers to be
manufactured and sold to Buyer hereunder shall be free from defects in
workmanship and materials, and shall conform to the specifications set forth in
Exhibit A attached hereto. EXCEPT AS EXPRESSLY STATED ABOVE, THERE ARE NO
OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO,
THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(b) ANC shall not be liable to Buyer or to any other person where
the claimed damages result from: (1) Buyer's faulty assembly or closure of the
can body and loose end; (2) rust or outside corrosion on containers occurring
after Buyer's receipt, except when caused by ANC's faulty workmanship or
imperfect materials; (3) the failure of Buyer (or any other party excluding ANC
from time to time having custody or control of allegedly defective goods) to
exercise reasonable care in conveying, warehousing, using, packing, handling,
distributing or storing filled or unfilled containers; or (4) the failure of
empty or filled containers exported or use in foreign countries unless a
special warranty has been specifically approved by ANC to cover such exported
containers.
(c) Seller shall give immediate consideration to settlement of
Buyer's claims, but in no event shall Seller be liable on any claim unless
notice thereof is received by ANC promptly following Buyer's discovery of an
alleged defect in a container.
(d) ANC's liability to Buyer hereunder shall be limited to Buyer's
cost of the defective containers, cost of the contents of the containers lost
as a direct result of the defect, and the reasonable cost of recovery and
disposition of defective containers (but as to the latter, only to the extent
reasonably required). ANC shall also be responsible for claims by third
parties (including governmental entities) to the extent arising out of a
container defect provided that ANC is given adequate notice of such claim and
the opportunity to defend such claim by counsel of its own choosing.
4
9. Force Majeure. Except for the payment of money due hereunder,
ANC and Buyer shall be excused for failure to perform under this Agreement
where such failure results from circumstances beyond the affected party's
reasonable control including, without limitation, such circumstances as fire,
storm, flood, earthquake, strikes, work stoppages or slowdowns, delay or
failure of transportation or suppliers, acts of the public enemy, acts of God
or acts, regulations, priorities or actions of the United States, a state or
any local government or agents or instrumentalities thereof.
10. Notices. All notices, requests or other communications shall
be in writing, and shall be deemed given when delivered personally or deposited
in the United States mail, postage prepaid, or to a courier service and
properly addressed to Buyer at: P. O. Xxx 000000, Xxxxxxx, XX 00000-0000,
Attention Xxxxxxx X. Xxxxxx, Director of Purchasing and Xxxxx X. Xxxxx, General
Counsel and to ANC at: 000 X Xxxx Xxxx Xxx., Xxxxxxx, XX 00000, Attention:
Sales Department, or to such other address as either party may, from time to
time, designate to the other in writing.
11. Assignability. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of the parties hereto, including,
without limitation, a subsidiary, a purchaser, transferee or successor by
merger of substantially all of the business or assets of either Buyer or ANC.
Buyer hereby agrees to require the purchase or transferee of all or any portion
of its can filling operations to assume that portion of this requirements
contract that relates to the portion of its operations being sold or
transferred.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date and year first above written.
AMERICAN NATIONAL CAN COMPANY COCA-COLA ENTERPRISES INC.
By: /s/XXXXX X. XXXXXX By: /s/ XXXXX X. XXXXXXXXX
------------------------- ----------------------
Xxxxx X. Xxxxxx Xxxxx X. Xxxxxxxxx
Title: Senior Vice President Title: President and Chief Operating
Sales Officer
5
EXHIBIT A
12 Ounce Aluminum Can Body
- 4 prints on metal
202 Diameter Aluminum Stay-On-Tab Ends
Cans must meet or exceed specifications, performance and quality criteria as
mandated by The Coca-Cola Company as they may change from time to time.
6
EXHIBIT B
Buyer's Filling Locations(s)
----------------------------
1. Downey, CA
2. College Park, GA
3. Houston, TX
4. Xxxxx, MN
5. Baltimore, MD
6. San Leandro, CA
7. Orlando, FL
8. Xxxxxxxxxx, XX
0. Xxxxxx, XX
10. Twinsburg, OH
11. Ft. Worth, TX
12. Phoenix, AZ
13. Hollywood, FL
14. West Memphis, AR
15. Bellevue, WA
16. Xxxxxxx Heights, MA
17. Dallas, TX
18. Cleveland, TN
19. Jacksonville, FL
20. Detroit, MI
21. Sandston, VA
22. Denver, CO
23. Mattoon, IL
24. Gretna, LA
25. Wilsonville, OR
26. Xxxxxxxx Xxxxxxx, XX
00. Xxx Xxxxx, XX
28. Grand Rapids, MI
29. Austin, TX
30. Little Rock, AR
31. Flint, MI
32. Xxxxxxxx, XX
00. Xxxxxxx, XX
34. McAllen, TX
7
EXHIBIT C
MECHANISMS FOR ADMINISTRATION OF PRICING OF CONTAINERS
1. Can Price Components. Prices of cans to be purchased and sold
hereunder will be determined by reference to changes in the following 3 cost
components:
(a) Cost of aluminum ingot ("ingot cost");
(b) Cost of conversion of ingot into can, end or tab sheet ("ingot
conversion cost"); and
(c) Cost of conversion of can, end and tab sheet into finished
container ("can sheet conversion cost").
2. Initial Can Price. Effective January 1, 1996, the base price for cans
to be supplied to you under this agreement will be $## 12 ounce cans and 202
ends. This price is based upon an ingot cost of $## per pound, an ingot
conversion cost of $## per pound for 0.0112 gauge body stock, $## per pound for
0.0086 gauge clear soft drink end stock and $## per pound for tab stock. This
base price will be adjusted as of January 1, 1996 to reflect any changes in the
above ingot cost and ingot conversion cost assumptions as follows: the ingot
cost will be determined based upon the average of the daily Xxxxx'x Metal week
transaction prices (i.e. the straight arithmetic average official London Metal
Exchange (LME) cash settlement prices plus the Midwest Premium on such prices)
during the period June 1, 1995 through November 30, 1995. The ingot conversion
cost is not yet set but is expected to change by about $0.02 per pound to cover
increases in the cost of coating materials on ends and tabs only. Changes by
Buyer to the specifications set forth in Exhibit A prior to January 1, 1996 may
also result in an adjustment to the base price.
An example of the January 1, 1996 base price calculation is set forth
on Attachment 1.
3. Adjustments to Can And End Pricing Within The Band. Prices for all
Containers (cans and ends) covered by this Agreement will be adjusted every six
months on April 1 and October 1, with the first such adjustment taking place on
April 1, 1996. These price adjustments will be driven by changes in the cost
of the three components described in paragraph 1 above as follows:
(a) Price adjustments reflecting changes in ingot cost will be
determined by reference to the average of the Xxxxx'x Metal Week transaction
prices (i.e., the straight arithmetic average official London Metal Exchange
cash settlement prices plus the Midwest Premium on such prices) during a
six-month period prior to the particular adjustment date (the Average Ingot
Price). For the April 1 adjustment date, the six-month average period will be
between September 1 and February 28 immediately preceding such April 1 date.
For the October 1 adjustment date, the averaging period will be from March 1 to
August 31 immediately preceding such October 1 date (i.e., for the April 1,
1996 adjustment date, the
##CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SEC
8
relevant averaging period will be September 1, 1995 to February 28, 1996 and
for the October 1, 1996 adjustment date, the relevant averaging period will be
from March 1, 1996 to August 31, 1996). An example of the impact of an ingot
cost change on the can price is shown in Attachment 2.
Notwithstanding the foregoing and subject to the adjustments described
below, ingot cost, inclusive of the Midwest Premium for such ingot, will never
be higher than a ceiling cost of $## per pound or lower than a floor cost of
$## per pound (the "ingot band"). Such ingot band will remain fixed until
April 1, 1997, at which time such band will be adjusted in the amount of
one-half of the percentage change in the monthly average Producer Price Index
for Intermediate Materials, Supplies and Components as reported in Table 1 of
the monthly "Summary Data From the Producer Price Index News Release"
(hereinafter called the Producer Price Index) for the period January 1, 1996
through December 31, 1996 over the average for the January 1, 1995 through
December 31, 1995 period. The ingot band will be similarly adjusted on April 1
of 1998, 1999, 2000 and 2001 if this Agreement is extended in accordance with
the term of this Agreement. All adjustments will be based on the changes in
the Producer Price Index for the calendar year immediately preceding the
adjustment date. An example of a calculation of the ingot band adjustment is
set forth below:
EXAMPLE OF CALCULATION OF INDEX CHANGE:
Index Average for the period 102.0 (Straight average of each monthly
January 1, 1995 to December 31, index for period January 1, 1995
1995 to December 31, 1995)
Index Average for the period 104.0 (Straight average of each monthly
January 1, 1996 to December 31, index for period January 1, 1996
1996 to December 31, 1996)
Percentage Change 1.96%
Half of a Percentage Change 0.98%
EFFECT OF ABOVE INDEX CHANGE ON FLOOR AND CEILING INGOT COSTS:
Ingot Cost Per Pound Prior Effective April 1, 1997
-------------------- ----- ------------------------
Floor Price ## x 1.0098 = ##
Ceiling Price ## x 1.0098 = ##
(b) Price adjustments reflecting changes in both the ingot
conversion cost and the can sheet conversion cost will not be implemented until
April 1, 1997. At that time, increases in such conversion costs will be no
more than one-half of the year over year Producer Price Index increase
described in paragraph 3(a) above with reference to adjustments to the ingot
band. This adjustment procedure will be repeated on April 1, 1998, 1999, 2000,
and 2001 if this contract is extended for an additional year. An example of
the impact of conversion cost changes on the can price is set forth in
##CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SEC
9
Attachment 3.
(c) The parties agree that in the event of significant changes in
the cost of items which are not reflected in the Producer Price Index, the
parties will meet to discuss making appropriate adjustments for these items.
(d) All price adjustments reflecting changes in costs shall be
supported by detailed documentation reasonably acceptable to Buyer.
10
ATTACHMENTS 1 - 4 TO EXHIBIT C##
## CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SEC
