EXHIBIT 10.4
CERTAIN CONFIDENTIAL INFORMATION OTHERWISE HEREIN HAS BEEN OMITTED; SUCH
(REDACTED) INFORMATION IS CONFIDENTIAL AND HAS BEEN FILED SEPERATELY WITH THE
U.S. SECURITIES AND EXCHANGE COMMISSION.
SUPPLY AGREEMENT
THIS AGREEMENT made and entered into this 25th day of August, 1993, by
and between Brunswick Technologies, Inc., a Maine corporation (the "Buyer") and
Vetrotex CertainTeed Corporation, a Delaware corporation (the "Seller").
BACKGROUND
Seller currently sells certain fiberglass reinforcing products to
Buyer. Buyer and Seller are this date entering into an agreement (the "Stock
Purchase Agreement") pursuant to which Seller will purchase certain equity
securities of Buyer. The Stock Purchase Agreement provides that Seller and Buyer
will enter into an agreement pursuant to which Buyer will purchase from Seller
and Seller will supply to Buyer not less than 90% of Buyer's requirements of
fiberglass raw material at the prices and upon the other terms and conditions
hereinafter provided.
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained and intending to be legally bound hereby, the parties hereto
agree as follows:
1. Sale and Purchase of the Products. Seller shall sell and deliver to
Buyer, and Buyer agrees to purchase from Seller, the fiberglass products
identified in 'section 2(a) hereafter (the "Products") on the terms set forth
herein. Further, Seller shall make available and supply, on a timely basis,
Products that meet
the "Specifications", as defined in Section 4 hereafter, in such quantities as
Buyer may require, and Buyer shall purchase from Seller not less than 90% of
Buyer's requirements for the Products during the Term (as hereinafter defined)
of this Agreement.
2. Prices for the Products. The price for each of the Products during
the term hereof shall be as follows:
(a) For the period commencing with the date hereof and until
December 31, 1993, the price by Product shall be as follows:
Product Price per Pound
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(b) For calendar year 1994, the price for each of the
Products shall be adjusted for price changes which have been realized by the
industry for each such Product between September 30, 1992 and November 15, 1993.
(c) For calendar year 1995 and for that part of calendar year
1996 during which this Agreement is in effect, the price for each of the
Products shall be adjusted for price
*** CERTAIN CONFIDENTIAL INFORMATION OTHERWISE HEREIN HAS BEEN OMITTED; SUCH
(REDACTED) INFORMATION IS CONFIDENTIAL AND HAS BEEN FILED SEPERATELY WITH THE
U.S. SECURITIES AND EXCHANGE COMMISSION.
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changes which have been realized by the industry for each such product between
November 15, 1993 and November 14, 1994 for 1995, and between November 15, 1994
and November 14, 1995 for 1996.
(d) Written notice of any price adjustments provided for in
subsections (b) and (c) above shall be provided to Buyer on or before November
30 of the year prior to the calendar year for which such adjustments are to
become effective.
3. Delivery and Payment Terms. ***
4. Specifications. Each of the Products sold to Buyer hereunder shall
be manufactured in accordance with Seller's published specifications for such
Products as the same may be in effect from time to time and such other
specifications as may be agreed upon in writing by the parties hereto (together,
the "Specifications").
*** CERTAIN CONFIDENTIAL INFORMATION OTHERWISE HEREIN HAS BEEN OMITTED; SUCH
(REDACTED) INFORMATION IS CONFIDENTIAL AND HAS BEEN FILED SEPERATELY WITH THE
U.S. SECURITIES AND EXCHANGE COMMISSION.
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5. Warranties.
Seller warrants that the Products sold under this Agreement shall
conform to the Specifications, and be free from manufacturing defects. BUYER'S
EXCLUSIVE REMEDY FOR NON-CONFORMING OR DEFECTIVE PRODUCTS SHALL BE REPLACEMENT
OF SUCH NON-CONFORMING OR DEFECTIVE PRODUCTS AT SELLER'S EXPENSE AT THE PLANT
FROM WHICH SUCH PRODUCTS WERE INITIALLY SHIPPED AND, PENDING SUCH REPLACEMENT,
ISSUANCE OF APPROPRIATE CREDIT INVOICES AS PROVIDED IN PARAGRAPH 8 HEREOF. IF
BUYER HAS TIMELY REJECTED OR REVOKED ACCEPTANCE OF NON-CONFORMING OR DEFECTIVE
PRODUCTS IN ACCORDANCE WITH PARAGRAPH 8 HEREOF AND SELLER IS UNABLE TO REPLACE
SUCH NON-CONFORMING OR DEFECTIVE PRODUCTS AND IS UNABLE TO FURNISH OTHER
PRODUCTS THAT MEET SELLER'S WARRANTY WITHIN 60 DAYS OF SUCH REJECTION OR
REVOCATION OF ACCEPTANCE, BUYER SHALL BE ENTITLED TO A REFUND OF ITS PURCHASE
PRICE FOR SUCH NON-CONFORMING OR DEFECTIVE PRODUCTS IF PREVIOUSLY PAID. SELLER'S
LIABILITY FOR ANY LOSS OR DAMAGE ARISING OUT OF OR RESULTING FROM DELIVERY OF
NON-CONFORMING OR DEFECTIVE PRODUCTS OR NON-DELIVERY OR LATE DELIVERY OF
PRODUCTS SHALL NOT EXCEED THE PURCHASE PRICE THEREOF, REGARDLESS OF WHETHER SUCH
LIABILITY ARISES IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO NEGLIGENCE OR
STRICT LIABILITY OR OTHERWISE). TO THE FULL EXTENT PERMITTED BY LAW, NEITHER
SELLER NOR BUYER SHALL BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY
CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT. SELLER MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR
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PURPOSE, NOR IS THERE ANY OTHER WARRANTY, EXPRESS OR IMPLIED, ON THE PART OF
SELLER EXCEPT AS EXPRESSLY PROVIDED ABOVE. In no event shall any of the
warranties given by Seller hereunder be assignable by buyer.
6. Confidentiality.
a) Buyer agrees that all technical information relating to the
Products, and all know-how relating to the manufacture and/or processing of the
Products, whether already developed or developed during the Term hereof, are
owned by Seller. Seller agrees that all information developed by Buyer relating
to the application of the Products to Buyer's products, and all information
relating to Buyer's business in general, whether such information has been
developed or is developed during the Term hereof, is owned by Buyer. The
information owned by Seller and the information owned by Buyer is collectively
referred to herein as "Confidential Information". The following types of
information are excluded from the definition of Confidential Information as used
herein:
(i) information which is or hereafter becomes generally known
to the public through no fault or act of the receiving party;
(ii) information which is in the lawful possession of
receiving party at the time of disclosure thereof by disclosing party to
receiving party as shown by receiving party's records
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and with respect to which there was no obligation of confidentiality at the time
of receipt;
(iii) information which is received by receiving party from a
third party which receiving party believes has the right to disclose such
information; or
(iv) information which is hereafter independently developed
by employees or agents of receiving party who have not had access to the
Confidential Information of disclosing party, as evidenced by written
documentation; or
(v) information which is authorized for release by disclosing
party.
b) Buyer and Seller further agree that, with respect to
Confidential Information:
(i) The receiving party will retain all Confidential
Information in confidence for a period of 10 years from the date of receipt.
(ii) The receiving party agrees not to use the Confidential
Information to compete with the disclosing party or for any other improper
purpose and not to disclose or to permit the disclosure of Confidential
Information to any person or entity without the prior written consent of the
disclosing party, other than to those of the receiving party's employees,
attorneys, principals or agents who are required to have access to such
Confidential Information. The names of all such persons shall be furnished to
the disclosing party upon its request.
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(iii) all materials, including, without limitation,
documents, drawings, apparatus, designs and lists furnished to the receiving
party and containing Confidential Information shall remain the property of the
disclosing party, and nothing contained herein shall be construed as giving the
receiving party any license or rights with respect to any such information or
materials other than as expressly provided herein. Upon termination of this
Agreement, the receiving party shall return to the disclosing party promptly at
its request all Confidential Information, along with all copies made thereof,
and all documents or items containing any Confidential Information. Both parties
acknowledge that, in the event of a breach of this Section 6, money damages may
be difficult to ascertain and may be inadequate. Accordingly, in the event
action is brought to enforce the provisions of this Section 6, the party seeking
such relief shall, in addition to all other remedies at law, be entitled to seek
injunctive or other equitable relief.
7. Term. Subject to earlier termination pursuant to Section 11 hereof,
the term of this agreement (the "Term") shall commence on the Closing, as
defined in the Stock Purchase Agreement, and shall remain in effect for the
three year period ending on the third anniversary date of the Closing.
8. Inspection: Credits.
(a) Buyer shall employ inspection procedures to inspect shipments of
the Products within 60 days of delivery, and
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inform Seller in writing of any defects in the Products. In the event that Buyer
encounters Products that Buyer believes do not meet the Specifications or are
defective, and Buyer proves the same to Seller's satisfaction, which shall not
be unreasonably withheld or delayed, Buyer may reject such non-conforming or
defective products. Delivered Products that are not rejected within 60 days of
delivery may not subsequently be rejected, nor may acceptance of such Products
be revoked, whether or not such Products were inspected by Buyer.
(b) Seller shall issue appropriate credit invoices to Buyer
for rejected Products which Buyer and Seller agree do not meet the
Specifications or are otherwise defective.
9. Force Majeure.
(a) Either party shall be relieved from liability herein
imposed, except for the obligation to pay for Products already delivered, for
the time and to the extent of such failure to perform if Buyer's failure to
take, use or consume, or Seller's failure to make delivery is due to or
occasioned by war or acts of the public enemy, insurrection, riot, action of any
governmental authority, embargo, strike, lockout, flood, explosion, fire or
other casualty, accident, act of God, shortage of labor, materials, or fuel,
delay or interruptions in transportation, epidemic, or quarantine, compliance
with any governmental law or regulation, or any other cause or causes of any
kind or character reasonably beyond the control of the party
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failing to perform, whether similar to or dissimilar from the enumerated causes
(any such cause herein called "Force Majeure").
(b) in the event of either party being rendered unable by the
foregoing Force Majeure situations to carry out its obligations under this
Agreement, other than to make payments due hereunder, such party shall give
notice and full particulars, including the expected duration of such Force
Majeure, to the other party not later than ten (10) days after the occurrence of
the cause relied on, and upon the giving of such notice the obligations of the
party giving such notice, so far as they are affected by such Force Majeure,
shall be suspended during continuance of any inability so caused, but for no
longer period, and such cause shall be so far as possible remedied with all
reasonable dispatch. However, neither party shall be required to resolve a
strike, lockout or other labor problem in a manner which it alone does not deem
proper and advisable.
(c) Upon the cessation of the cause or causes for any such
failure or delay, performance hereof shall be resumed, but such delay shall not,
except by mutual agreement, operate to extend the term of this Agreement.
(d) During any period in which Seller is relieved of its
obligations to perform hereunder as a result of a Force Majeure, Buyer may, for
the period such Force Majeure continues, but no longer, purchase its
requirements of products similar to the Products from other suppliers without
being in breach of its obligations hereunder.
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10. Default. Any of the following events or circumstances shall
constitute an event of default under this Agreement:
(a) If either party fails to observe or perform any term or
provision of this Agreement in any material respect and such failure is not
remedied within fifteen (15) days after notice of such failure is given to the
party responsible for such failure by the other party; or
(b) If either party becomes insolvent or bankrupt, or admits
its inability to pay its debts generally as they become due or if a liquidator,
trustee in bankruptcy or any other officer with similar powers shall be
appointed with respect to said party or any of its assets; or if proceedings for
the winding-up, liquidation or dissolution of any of said parties are commenced
or if either of said parties is wound-up, liquidated or dissolved.
11. Remedies. Upon the occurrence of an event of default under Section
10, the party not in default may, at its option, in addition to its other
remedies at law or in equity, give notice to the defaulting party that this
Agreement is terminated effective the date of such notice.
12. Independent Contractor. This Agreement is not intended to create a
partnership or joint venture and neither party shall be authorized to create any
obligations or make any representations or warranties on behalf of the other
party. Any representations or warranties made or obligations created are at the
peril of the creating party. Each party shall indemnify the
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other for any and all damages sustained by such party as a result of the
creating party's making representations or warranties or creating obligations on
behalf of the other.
13. Indemnification Against Patent Infringement. Seller represents and
warrants to Buyer that it has the right to sell the products to buyer in
accordance with this Agreement and agrees that, if any claim or suit of patent
infringement is made or filed by a third party against Buyer with respect to the
Products sold to Buyer by Seller pursuant to this Agreement, Seller will, at its
own expense, assume Buyer's defense with respect to such claims or suits and
indemnify Buyer against any losses it may incur as a result of such third
party's claim. Seller shall have the sole control of the defense of any suit
with respect to which if has agreed to provide indemnification hereunder,
including any settlement thereof. Buyer shall notify Seller in writing of any
claim or suit for which it seeks to be indemnified by Seller promptly after it
becomes aware of such claim or suit. Seller agrees to keep Buyer informed of
significant developments that transpire with respect to any such claim or suit,
and Buyer may, at its own expense, participate in the defense of such claim or
suit through attorneys of its own choosing. It is hereby expressly agreed that,
in the event that any such infringement is alleged, then Seller may at its sole
option decline to make further deliveries of Products to Buyer and this
Agreement shall terminate.
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l4. Miscellaneous.
(a) This Agreement constitutes the entire agreement and
understanding between the parties pertaining to the matters referred to herein,
and supersedes all prior negotiations, commitments, representations, and
warranties, whether oral or written. The terms of this Agreement shall supersede
the terms of any purchase order, acknowledgement, invoice or other document used
by the Buyer or Seller in the purchase or sale of the Products hereunder. The
provisions of Sections 6 and 13 hereof shall survive any termination of this
Agreement.
(b) No amendment or other modification to this Agreement
shall be valid or binding upon the parties unless such amendment or modification
is in writing and signed by both parties.
(c) No waiver by a party of any breach, failure or default in
performance by the other party and no failure, refusal or neglect by a party to
exercise any right hereunder or to insist upon strict compliance with or
performance of the other party's obligations hereunder, shall constitute a
waiver by such party of the provisions of this Agreement with respect to any
subsequent breach, failure or default and shall not constitute a waiver by such
party of its right, at any time or thereafter, to require strict compliance with
the provisions hereof.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
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(e) All notices permitted or required to be given by either
party in accordance with the provisions of this Agreement shall be in writing
and shall be deemed given if (i) delivered by hand; (ii) sent in a prepaid
registered letter deposited in a post office, return receipt requested; (iii)
sent via overnight mail; or (iv) transmitted by telex, fax or other wire service
and confirmed by prepaid registered or certified letter, properly addressed to
the party to whom notice is to be given, at its address as listed below:
If to Buyer:
VETROTEX CERTAINTEED CORPORATION
Attention: Xxxxx Xxxxxx
000 Xxxx Xxxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxx Xxxxx, XX 00000
Telecopier: 000-000-0000
With a copy to:
CERTAINTEED CORPORATION
General Counsel
000 X. Xxxxxxxxxx Xxxx
X.X. Xxx 000
Xxxxxx Xxxxx, XX 00000
Telecopier: 000-000-0000
If to Seller:
BRUNSWICK TECHNOLOGIES, INC.
X.X Xxx 000
Xxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx 00000
Attention: President
Telecopier: 000-000-0000
With a copy to:
Xxxxxx X. XxXxx, Esq.
Eaton, Peabody, Bradford & Veague, P.A.
Fleet Center
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Telecopier: 000-000-0000
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Any notice so given or made shall be deemed to have been given or made and
received, as applicable, on the date of hand delivery, on the third business day
following the date of mailing of the same, on the date of transmission by telex,
fax or other wire service of the same, or on the first business day after
mailing if sent via overnight mail. Either party may, from time to time by
notice in writing given pursuant to the terms hereof, change its address for the
purpose of this Agreement.
(f) All section and paragraph titles or captions contained in
this Agreement are for convenience only and shall not be deemed part of the
context of this Agreement.
(g) This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective successors and permitted
assigns.
(h) This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(i) This Agreement shall not be assignable by either party
without the prior written consent of the other party, except that Seller shall
have the right to assign this Agreement and its rights and duties hereunder to
any of its wholly owned subsidiaries or affiliates.
(j) In the event a dispute arises between Seller and Buyer
with respect to this Agreement and cannot be resolved by negotiations within 90
days, Seller and Buyer shall resolve such dispute through arbitration conducted
in accordance with the
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rules and procedures of the American Arbitration Association. Arbitration shall
be conducted by a panel of three arbitrators, one of which shall be selected by
Seller and one of which shall be selected by Buyer, the third to be selected by
mutual agreement of the first two arbitrators. The cost of such arbitration and
the respective parties' expenses (including reasonable attorneys' fees) shall be
apportioned to each of the parties hereto by the arbitration panel. All
arbitration proceedings shall be conducted in either Maine or Pennsylvania as
may be selected by the party other than the party first submitting a claim for
arbitration.
(k) All taxes (other than income taxes and other taxes levied
solely on a supplier), imposed or levied upon the Products supplied hereunder by
or payable to any U.S. federal, state, municipal or other governmental authority
in connection with the sales thereof to Buyer shall be chargeable to and paid by
Buyer, whether such taxes, shall be paid or be payable to Seller or otherwise.
The purchase prices described herein are exclusive of any such taxes.
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
BRUNSWICK TECHNOLOGIES, INC. VETROTEX CERTAINTEED
CORPORATION
By: Illegible By: Illegible
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Title: President Title: Vice President
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