Exhibit 10.10
Agreement Amending Supply Agreements
This Agreement Amending Supply Agreements (this "Agreement") is entered
into as of this 6th day of June, 2002 among Cabot Corporation through its Cabot
Performance Materials Division ("CPM") and Vishay Sprague, Inc. ("VSI") and
Vishay Intertechnology, Inc. ("VII" and VII and VSI each individually "Buyer"
and collectively "Buyer").
CPM and VSI are parties to a Supply Agreement dated July 14, 2000 (such
agreement, as amended by the Amendment to Supply Agreement dated as of November
20, 2000, the "July Agreement") pursuant to which VSI agreed to purchase from
CPM, and CPM agreed to sell to VSI, stated minimum quantities of tantalum powder
and wire products at the prices stated in the July Agreement. CPM and VSI are
also parties to a Supply Agreement dated as of November 10, 2000 (the "November
Agreement") pursuant to which VSI agreed to purchase from CPM, and CPM agreed to
sell to VSI, stated minimum quantities of tantalum powder and wire products at
the prices stated in the November Agreement. The obligations under the November
Agreement are separate from and in addition to the obligations under the July
Agreement.
CPM, VSI and VII currently are parties to certain litigation arising out
of the July Agreement and the November Agreement captioned Cabot Corporation v.
Vishay Intertechnology, Inc., Vishay Sprague, Inc., and Vishay Sprague Sanford,
Inc., Suffolk Superior Court Civil Action No. 02-1584-BLS (the "Litigation").
The parties have agreed to resolve the Litigation by executing and delivering
this Agreement, the Releases (as defined in section 5 below) and the Stipulation
of Dismissal (as defined in section 5 below), and amending and restating the
July Agreement and the November Agreement according to the terms set forth in
this Agreement.
In consideration of the mutual covenants set forth herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Amended July Agreement. The July Agreement is hereby amended and
restated in its entirety so as to be in the form attached hereto as Exhibit 1
(the July Agreement, as so amended and restated by this Agreement, the "Amended
July Agreement"). Concurrent with the execution and delivery of this Agreement,
the parties are executing and delivering the Amended July Agreement.
2. Amended November Agreement. The November Agreement is hereby amended
and restated in its entirety so as to be in the form attached hereto as Exhibit
2 (the November Agreement, as so amended and restated pursuant to this
Agreement, and as such agreement may be hereafter further amended pursuant to
section 3 of this Agreement, the "Amended November Agreement"). Concurrent with
the execution and delivery of this Agreement, the parties are executing and
delivering the Amended November Agreement.
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3. Reduction in Calendar 2003/2004/2005/2006 Quantities and Prices under
Amended November Agreement.
3.1. Reduction in Calendar 2003 Minimum Quantities and Prices. If the
Reduction Condition (as defined below) for calendar year 2003 is satisfied, then
(i) the Annual Product Quantity of each Product (each as defined in the Amended
November Agreement) required to be purchased under the Amended November
Agreement for the calendar year 2003 shall be reduced from XXX pounds of
tantalum powder and XXX pounds of tantalum wire to XXX pounds of tantalum powder
and XXX pounds of tantalum wire, (ii) the price per pound under the Amended
November Agreement for tantalum powder and tantalum wire to be purchased during
the calendar year 2003 shall be reduced from $XXX per pound to $XXX per pound;
and (iii) Appendix A to the Amended November Agreement shall be deemed amended
to reflect such reductions in quantities and price for the calendar year 2003.
The Reduction Condition for a calendar year will be satisfied if, and only if,
(i) Buyer has purchased from CPM in compliance with the Amended November
Agreement, including, without limitation, sections 2, 3 and 4 of the Amended
November Agreement, during each of the calendar years preceding such calendar
year, the Annual Product Quantity of each Product (each as defined in the
Amended November Agreement) required to be purchased during each such preceding
calendar year pursuant to the Amended November Agreement, (ii) Buyer has
purchased from CPM in compliance with the Amended July Agreement, including,
without limitation, sections 2, 3 and 4 of the Amended July Agreement, during
each of the calendar years preceding such calendar year (but excluding calendar
year 2001), the Annual Product Quantity of each Product (each as defined in the
Amended July Agreement) required to be purchased during each such preceding
calendar year pursuant to the Amended July Agreement, and (iii) from the date of
this Agreement through the beginning of such calendar year Buyer has complied
with each of its obligations under sections 7 and 8 of the Amended July
Agreement, sections 6 and 8 of the Amended November Agreement and under section
4 of this Agreement. For the avoidance of doubt, if the Reduction Condition for
a calendar year is not satisfied, then the Reduction Condition for each
subsequent calendar year will be deemed not to have been satisfied.
If CPM believes that Buyer is not complying with or has not complied with one or
more of the applicable provisions of this Agreement, the Amended July Agreement
or the Amended November Agreement (excluding the provision of this Agreement
requiring the satisfaction of each prior year's Reduction Condition) which must
be complied with for the Reduction Condition for a calendar year to be
satisfied, and such noncompliance is susceptible of cure by Buyer (a "Curable
Noncompliance"), CPM shall send written notice to Buyer stating the basis for
such belief, the provision with which Buyer is not complying or has not complied
and the actions which Buyer must take to cure such noncompliance (a "Notice of
Noncompliance"). If Buyer cures such noncompliance within ten days after receipt
of such notice, then such noncompliance shall be deemed not to have occurred for
purposes of determining whether the Reduction Condition for a year is satisfied.
No delay in or failure of CPM to deliver a Notice of Noncompliance shall be
deemed to constitute a waiver of any noncompliance by Buyer, but the occurrence
of a Curable Noncompliance during a calendar year will not result in the
Reduction Condition for such calendar year not being satisfied unless CPM
delivers a Notice of
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Noncompliance with respect thereto and Buyer does not cure such Curable
Noncompliance within ten days after receipt of such Notice of Noncompliance.
3.2. Reduction in Calendar 2004 Minimum Quantities and Prices. If the
Reduction Condition for calendar year 2004 is satisfied, then (i) the Annual
Product Quantity of each Product (each as defined in the Amended November
Agreement) required to be purchased under the Amended November Agreement for the
calendar year 2004 shall be reduced from XXX pounds of tantalum powder and
XXX pounds of tantalum wire to XXX pounds of tantalum powder and XXX
pounds of tantalum wire; (ii) the price per pound under the Amended November
Agreement for tantalum powder and tantalum wire to be purchased during the
calendar year 2004 shall be reduced from $XXX per pound to $XXX per pound; and
(iii) Appendix A to the Amended November Agreement shall be deemed amended to
reflect such reductions in quantities and price for the calendar year 2004.
3.3. Reduction in Calendar 2005 Minimum Quantities and Prices. If the
Reduction Condition for calendar year 2005 is satisfied, then (i) the Annual
Product Quantity of each Product (each as defined in the Amended November
Agreement) required to be purchased under the Amended November Agreement for the
calendar year 2005 shall be reduced from XXX pounds of tantalum powder and XXX
pounds of tantalum wire to XXX pounds of tantalum powder and XXX pounds of
tantalum wire; (ii) the price per pound under the Amended November Agreement for
tantalum powder and tantalum wire to be purchased during the calendar year 2005
shall be reduced from $XXX per pound to $XXX per pound; and (iii) Appendix A to
the Amended November Agreement shall be deemed amended to reflect such
reductions in quantities and price for the calendar year 2005.
3.4. Reduction in Calendar 2006 Price. If the Reduction Condition for
calendar year 2006 is satisfied, then (i) the price per pound under the Amended
November Agreement for tantalum powder and tantalum wire to be purchased during
the calendar year 2006 shall be reduced from $XXX per pound to $XXX per pound;
and (ii) Appendix A to the Amended November Agreement shall be deemed amended to
reflect such reduction in price for the calendar year 2006.
4. Confidentiality. During the term of the Amended July Agreement and the
term of the Amended November Agreement and for a period of two years after the
later of the end of the two terms, neither Buyer nor CPM shall disclose to
others the existence or contents of the Amended July Agreement, the Amended
November Agreement or this Agreement, except to the extent required by law or
regulation or applicable securities exchange regulations or as required by a
court or agency of competent jurisdiction, provided that (i) nothing shall
preclude the disclosure by any party of the Releases or the Stipulation of
Dismissal, (ii) nothing shall preclude the disclosure by CPM of pricing and
other terms of the Amended July Agreement, the Amended November Agreement or
this Agreement, but without identifying the Buyer, to the extent that such
disclosure is required by other contractual obligations of CPM providing for
price adjustments based on other sales by CPM, and (iii) nothing shall preclude
the disclosure by either Buyer or CPM of the existence of this Agreement, the
Amended July Agreement or the Amended November Agreement and the aggregate
annual tantalum purchase commitments thereunder (in aggregated dollars, not
pounds of tantalum). On or about the date of this
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Agreement, the parties will issue a joint press release in form and substance
satisfactory to each party regarding this Agreement and the settlement of the
Litigation.
5. Releases. Concurrent with the execution and delivery of this Agreement,
the parties are executing and delivering mutual releases in the respective forms
of Exhibit 5A and Exhibit 5B (the "Releases") and a Stipulation of Dismissal in
the form of Exhibit 5C (the "Stipulation of Dismissal"). The Stipulation of
Dismissal will be filed promptly by the parties in the Suffolk Superior Court
dismissing the Litigation with prejudice.
6. Governing Law. This Agreement shall be governed by and construed under
the laws of The Commonwealth of Massachusetts. The United Nations Convention for
International Sales and Purchases of Goods shall not apply. Any legal
proceedings arising out of or pertaining in any way to this Agreement that may
be commenced against any of the parties hereto shall be commenced only in the
federal or state courts located in the Commonwealth of Massachusetts, and each
of the parties hereto consents to the exclusive jurisdiction of said courts in
any such action or proceedings and waives any objection to venue laid therein,
provided, however, that nothing in this paragraph shall be construed to preclude
any party from asserting any counter-claim or cross-claim in any legal
proceeding commenced against that party in any forum outside the Commonwealth of
Massachusetts.
7. Miscellaneous. This Agreement, together with the Amended July
Agreement, the Amended November Agreement, the Releases and the Stipulation of
Dismissal, constitute the entire understanding of the parties and supersede all
prior agreements and discussions among the parties respecting the subject matter
hereof and thereof. No modification of this Agreement or waiver of the terms and
conditions hereof shall be effective unless made in writing, signed by
authorized representatives of CPM and Buyer and expressly stated to be a
modification or waiver of this Agreement. No waiver by either party of any
breach of any of the terms and conditions herein contained to be performed by
the other party, shall be construed as a waiver of any subsequent breach,
whether of the same or of any other term or condition hereof. If any of the
provisions of this Agreement is held to be illegal, invalid or unenforceable in
any respect or as against any party under applicable law, the legality, validity
and enforceability of the remaining provisions shall not be affected or impaired
in respect of all or any of the parties, and such illegal, invalid or
unenforceable provision shall be reformed and construed so that it will be
legal, valid and enforceable to the maximum extent permitted by applicable law.
8. Joint and Several Obligations of Buyer. VII and VSI are each jointly
and severally liable for the obligations of the Buyer under this Agreement.
VII also does hereby unconditionally guarantee the prompt payment and
performance of the obligations of VSI and of Buyer under the Amended July
Agreement and the Amended November Agreement. This guaranty by VII is an
absolute, present and continuing guaranty of payment and performance, and is in
no way conditioned or contingent upon any attempt to collect from VSI or upon
any other condition or contingency; if VSI shall fail to pay when due
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any amount due under the Amended July Agreement or the Amended November
Agreement, VII will immediately pay the same to CPM.
This guaranty shall remain in full force and effect without regard to, and
the obligations of VII hereunder shall not be affected or impaired by: (a) any
amendment or modification of or addition or supplement to this Agreement, the
Amended July Agreement or the Amended November Agreement; (b) any extension,
indulgence or other action or inaction in respect of this Agreement, the Amended
July Agreement or the Amended November Agreement; (c) any default by VSI under,
or any invalidity or unenforceability in any respect of, or any irregularity or
other defect in, this Agreement, the Amended July Agreement or the Amended
November Agreement; (d) any exercise or nonexercise of any right, remedy, power
or privilege in respect of this Agreement, the Amended July Agreement or the
Amended November Agreement; (e) any transfer of the assets of VSI to, or any
consolidation or merger of VSI with or into, any other entity; (f) any
bankruptcy, insolvency, reorganization, receivership or similar proceeding
involving or affecting VSI or any of its assets; or (g) any other circumstance;
whether or not VII shall have had notice or knowledge of any of the foregoing.
VII unconditionally waives (i) notice of any of the matters referred to in
the preceding paragraph hereof, (ii) all notices which may be required by
statute, rule of law or otherwise to preserve the rights of CPM against VII,
including, without limitation, notice to VII of default, presentment to and
demand of payment from VSI, and protest for non-payment or dishonor, (iii) any
right to the exercise by CPM of any right, remedy, power or privilege of CPM,
(iv) any requirement of diligence on the part of CPM, and (v) notice of
acceptance of this guaranty.
For the avoidance of doubt, references to CPM shall not be deemed to
include Cabot Supermetals KK or any other affiliate of Cabot Corporation.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the date first above written.
VISHAY SPRAGUE, INC.
By: _____________________
Duly Authorized
VISHAY INTERTECHNOLOGY, INC.
By: _____________________
Duly Authorized
CABOT CORPORATION
By: _____________________
Duly Authorized
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Exhibit 1
EXECUTION COPY
AMENDED AND RESTATED SUPPLY AGREEMENT
-------------------------------------
This Amended and Restated Supply Agreement (this "Agreement") is entered into as
of June 6, 2002 by and among Cabot Corporation through its Cabot Performance
Materials Division ("CPM") and Vishay Sprague, Inc. ("VSI") and Vishay
Intertechnology, Inc. ("VII", and VII and VSI each individually "Buyer" and
collectively, "Buyer"). This Agreement amends and restates in its entirety the
Supply Agreement made the 14th day of July, 2000 by and between CPM and VSI, as
amended by the Amendment to Supply Agreement dated as of November 20, 2000 (the
"Original Agreement"). This Agreement is entered into pursuant to the Agreement
Amending Supply Agreements dated as of June 6, 2002 among CPM and the Buyer (the
"Amendment Agreement"). VII owns, directly or indirectly, all of the outstanding
capital stock of VSI.
In consideration of the mutual promises herein contained and other good and
valuable consideration, Buyer and CPM hereby agree as follows:
1. TERM OF AGREEMENT
This Agreement shall have a term commencing on July 14, 2000 and
terminating on December 31, 2005.
2. TANTALUM POWDER AND WIRE QUANTITIES; SCHEDULING
Annual Product Quantities. Each calendar year commencing on or after
January 1, 2001 during the term of this Agreement, Buyer shall purchase
from CPM and CPM shall sell to Buyer the Annual Product Quantity of
tantalum powder ("Powder") and the Annual Product Quantity of tantalum
wire ("Wire") stated on Appendix A for such calendar year. Powder and Wire
are each a "Product" for purposes of this Agreement. The grades of Powder
and the grades (expressed as diameters) of Wire to be purchased and sold
under this Agreement, and the permitted mix of grades of each Product, are
set forth on Appendix A.
Monthly/Quarterly Amounts. The Annual Product Quantity of each Product for
the calendar year 2002 shall be purchased by Buyer and delivered by CPM in
the respective quantities (and in the respective grade mix) specified on
Appendix C for each period specified on Appendix C from June, 2002 through
December 2002. During each quarter of a calendar year commencing with the
calendar year 2003, Buyer shall purchase, and CPM shall sell, one fourth
of the Annual Product Quantity of each Product specified for such year,
and the quantity of each Product to be purchased in a quarter shall be
purchased and sold in approximately equal monthly amounts during each
month of such quarter.
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Allocations of Monthly/Quarterly Amounts among Grades. During the first
month of each calendar quarter in each calendar year, commencing October,
2002, Buyer shall send CPM a written notice proposing to allocate among
the respective grades of each Product the quarterly quantity (and each
monthly quantity) of such Product to be purchased in the next succeeding
calendar quarter, and during each month during such next succeeding
calendar quarter, as stated in the preceding paragraph, provided that the
proposed allocations of monthly and quarterly quantities of a Product
among the grades of such Product must be consistent with the monthly and
quarterly percentage allocation ranges for such grades set forth on
Appendix A. If CPM does not receive such a written proposal from Buyer for
a Product for a calendar quarter or if the proposal is not consistent with
this paragraph or the preceding paragraph, then the quarterly quantity
(and each monthly quantity) of such Product to be purchased in the next
succeeding quarter (and during each month during such quarter) as required
by the preceding paragraph shall be allocated by CPM among the grades of
such Product in accordance with the default percentages specified on
Appendix A.
Purchases by Other Subsidiaries of VII. Buyer may elect, by written notice
to CPM, to make purchases of Products under this Agreement for the account
of one or more other wholly owned subsidiaries of VII (each, an
"Additional Buyer Party"), but only for so long as such Additional Buyer
Party remains a wholly owned subsidiary of VII. If all or any portion of
the Products to be purchased during a month are to be purchased for the
account of one or more Additional Buyer Parties, Buyer will, within twenty
days prior to the beginning of such month, send written notice (an
"Additional Buyer Notice") to CPM specifying (i) the quantities and grades
of Products (of the total quantities and grades to be purchased such month
as set forth above) that are being purchased by Buyer for the account of
Buyer, and (ii) the quantities and grades of Products (of the total
quantities and grades to be purchased such month as set forth above) that
are being purchased by Buyer for the account of an Additional Buyer Party,
and identifying such Additional Buyer Party. In the event purchases are
being made by Buyer for the account of an Additional Buyer Party, such
Additional Buyer Party will be jointly and severally liable with Buyer for
all obligations of Buyer with respect to such purchase. The fact that
purchases are being made under this Agreement by Buyer for the account of
an Additional Buyer Party shall not relieve Buyer of any of its
obligations with respect to such purchase, and such purchase shall
nonetheless constitute a purchase by Buyer under this Agreement.
3. PRICE
The prices for Products to be purchased and sold during each calendar year
during the term of this Agreement are listed on Appendix A. All prices for
Products are FOB Boyertown, PA.
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4. INVOICE AND PAYMENTS
CPM shall invoice Buyer upon delivery for all Product delivered. Buyer
shall pay such invoices within thirty (30) days of invoice date.
5. FORCE MAJEURE
Neither party hereto shall be liable to the other for default or delay in
performing its obligations hereunder if caused by fire, explosion, strike,
lockout, labour conflict, riot, war, acts of God, delay of carriers,
governmental order or regulation, and/or any other occurrence beyond the
reasonable control of the party so defaulting or delaying, including,
without limitation, a shortage of raw material or power beyond the
reasonable control of the party so defaulting or delaying, so long as such
Force Majeure is in effect; provided, however, that no party shall be
excused by reason of Force Majeure from any obligation to pay money when
due.
6. WARRANTY; LIMITATION OF LIABILITY
The specifications that are applicable to Powder (and to the respective
grades of Powder) and the specifications that are applicable to Wire (and
to the respective grades of Wire) are set forth on Appendix D to this
Agreement (the "Applicable Specifications"). CPM warrants that all Product
delivered by CPM under this Agreement shall meet the Applicable
Specifications for such Product (and its stated grade) at the time of
delivery. CPM shall have no obligation or liability for any breach of the
foregoing warranty except, at CPM's election, either to replace Product
which did not meet the Applicable Specifications for such Product (and its
stated grade) or to refund the purchase price previously paid by Buyer for
Product which did not meet the Applicable Specifications for such Product
(and its stated grade).
CPM MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS
TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL
CPM BE RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES.
The Buyer will have ninety days after the date of delivery of Product to
inspect the delivered Product and, if the results of such inspection by
Buyer indicate that such delivered Product did not meet one or more of the
Applicable Specifications for such Product (and its stated grade), to
deliver a written notice to CPM stating that Buyer rejects such delivered
Product to the extent it failed to meet an Applicable Specification for
such Product (and its stated grade) and describing the basis for such
rejection,
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including each Applicable Specification for such Product (and its stated
grade) that Buyer asserts was not met, the inspection and tests performed
by Buyer to make such determination and the results of such tests (the
"Rejection Notice").
If Buyer does not deliver a Rejection Notice within 90 days after delivery
of Product, the delivered Product shall be deemed conclusively (except to
the extent expressly stated in the next succeeding paragraph) to have met
the Applicable Specifications for such Product (and its stated grade) and
shall be deemed accepted by Buyer. If Buyer delivers a Rejection Notice in
accordance with this section, CPM and Buyer shall confer to resolve any
questions CPM may have as to whether the Product which Buyer wishes to
reject failed to meet one or more of the Applicable Specifications for
such Product (and its stated grade). If requested by CPM, Buyer shall
return to CPM, in accordance with CPM's instructions, Product which failed
to meet one or more of the Applicable Specifications for such Product (and
its stated grade).
CPM and Buyer acknowledge that Buyer will be holding some or all of the
Product in inventory for varying periods of time prior to Buyer's actual
use of such Product in production. If (i) Buyer does not use a quantity of
Product in actual production until after the ninetieth day after delivery
of such quantity of Product under this Agreement, (ii) during and as a
result of such actual production, Buyer determines that such quantity of
Product failed to meet one or more of the Applicable Specifications for
such Product (and its stated grade) at the time of delivery of such
quantity of Product by CPM, and (iii) it was only possible to detect such
failure to meet such Applicable Specification(s) during actual production,
then Buyer may send a notice to CPM stating the quantity of Product so
affected, the date of its delivery by CPM, each Applicable Specification
for such Product (and its stated grade) that Buyer asserts was not met at
such time of delivery and that such failure was determined during and as a
result of actual production by Buyer. Buyer will have the burden of proof
of demonstrating to CPM's reasonable satisfaction that such quantity of
Product did not meet one or more of the Applicable Specifications at the
time of delivery by CPM and that such failure was detected by Buyer for
the first time during and as a result of actual production, and could only
have been detected during actual production. If CPM does not agree with
Buyer's assertions, Buyer may require that Product be tested by an
independent third party laboratory reasonably satisfactory to Buyer and
CPM, and the results of such testing shall be deemed conclusive as to such
test results, but the parties agree that such tests will not be
determinative of whether the noncompliance existed at the time of delivery
(as required for CPM to be obligated to replace or refund) or occurred
thereafter. The fact that actual production may disclose the failure of a
quantity of Product to meet one or more Applicable Specifications shall in
no event be deemed a guaranty or warranty by CPM that Product is or will
be fit for a particular purpose or use or will result in a specified or
minimum or maximum yield during actual production.
For the avoidance of doubt, (i) neither Buyer's internal product
qualification procedures nor any quality holds it may place on any Product
shall be deemed to alter the parties' respective rights and obligations
under this Agreement or be used by Buyer as a reason for not purchasing or
rejecting Product delivered under this Agreement, (ii) Buyer's
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acceptance or deemed acceptance of Product is not a precondition to
Buyer's obligation to pay the purchase price for Product invoiced under
this Agreement, and (iii) neither the delivery of one or more Rejection
Notices by Buyer nor the replacement of or the refunding of the purchase
price of nonconforming Product by CPM shall be deemed to alter the Annual
Product Quantity of each Product which must be purchased by Buyer under
this Agreement.
7. SCRAP SALE BY BUYER
Each calendar year during the term of this Agreement, Buyer shall sell and
CPM shall purchase tantalum contained in scrap materials ("Scrap") in the
quantities (based on pounds of contained tantalum in the Scrap), at the
grades and the prices set forth on Appendix B. The prices for Scrap to be
purchased and sold during the term of this Agreement are FOB VSI's plant.
It is expected that Scrap will be supplied in approximately equal
quarterly deliveries.
8. CONFIDENTIALITY
During the term of this Agreement and for a period of two years
thereafter, neither CPM nor Buyer shall disclose to others the existence
or contents of this Agreement, except to the extent required by law or
regulation or applicable securities exchange regulations or as required by
a court or agency of competent jurisdiction, provided that (i) nothing
shall preclude the disclosure by CPM of pricing and other terms of this
Agreement, but without identifying the Buyer, to the extent that such
disclosure is required by other contractual obligations of CPM providing
for price adjustments based on other sales by CPM, and (ii) nothing shall
preclude the disclosure by either Buyer or CPM of the existence of this
Agreement, the Amendment Agreement or the Amended November Agreement and
the aggregate annual tantalum purchase commitments hereunder and
thereunder (in aggregated dollars, not pounds of tantalum). The provisions
of this Section 8 shall survive the termination of this Agreement.
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9. GOVERNING LAW
This Agreement shall be governed by and construed under the laws of The
Commonwealth of Massachusetts. The United Nations Convention for
International Sales and Purchases of Goods shall not apply. Any legal
proceedings arising out of or pertaining in any way to this Agreement that
may be commenced against any of the parties hereto shall be commenced only
in the federal or state courts located in the Commonwealth of
Massachusetts, and each of the parties hereto consents to the exclusive
jurisdiction of said courts in any such action or proceedings and waives
any objection to venue laid therein, provided, however, that nothing in
this paragraph shall be construed to preclude any party from asserting any
counter-claim or cross-claim in any legal proceeding commenced against
that party in any forum outside the Commonwealth of Massachusetts.
10. MISCELLANEOUS
This Agreement, the Amendment Agreement, the Amended November Agreement,
the Releases (as defined in the Amendment Agreement) and the Stipulation
of Dismissal (as defined in the Amendment Agreement) constitutes the
entire understanding of the parties and supersedes all prior agreements
and discussions among the parties respecting the subject mater hereof and
thereof, including, without limitation, the Original Agreement. No
modification of this Agreement or waiver of the terms and conditions
hereof shall be effective unless made in writing, signed by authorized
representatives of CPM and Buyer and expressly stated to be a modification
or waiver of this Agreement. No waiver by either party of any breach of
any of the terms and conditions herein contained to be performed by the
other party, shall be construed as a waiver of any subsequent breach,
whether of the same or of any other term or condition hereof. If any of
the provisions of this Agreement is held to be illegal, invalid or
unenforceable in any respect or as against any party under applicable law,
the legality, validity and enforceability of the remaining provisions
shall not be affected or impaired in respect of all or any of the parties,
and such illegal, invalid or unenforceable provision shall be reformed and
construed so that it will be legal, valid and enforceable to the maximum
extent permitted by applicable law.
11. JOINT AND SEVERAL OBLIGATIONS OF BUYER.
VII and VSI are each jointly and severally liable for the obligations of
the Buyer under this Agreement. For the avoidance of doubt, references to
CPM shall not be deemed to include Cabot Supermetals KK or any other
affiliate of Cabot Corporation.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the day,
month and year above written.
Cabot Corporation Vishay Sprague, Inc.
By:________________________ By:_______________________
Title:_____________________ Title:____________________
Vishay Intertechnology, Inc.
By: ____________________
Title: ___________________
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Exhibit 2
EXECUTION COPY
AMENDED AND RESTATED SUPPLY AGREEMENT
-------------------------------------
This Amended and Restated Supply Agreement (this "Agreement") is entered into as
of June 6, 2002 by and among Cabot Corporation through its Cabot Performance
Materials Division ("CPM") and Vishay Sprague, Inc. ("VSI") and Vishay
Intertechnology, Inc. ("VII", VII and VSI each individually "Buyer" and
collectively "Buyer"). This Agreement amends and restates in its entirety the
Supply Agreement made the 10th day of November, 2000 by and between CPM and VSI
(the "Original Agreement"). This Agreement is entered into pursuant to the
Agreement Amending Supply Agreements dated as of June 6, 2002 among CPM and the
Buyer (the "Amendment Agreement"). VII owns, directly or indirectly, all of the
outstanding capital stock of VSI.
In consideration of the mutual promises herein contained and other good valuable
consideration, Buyer and CPM hereby agree as follows:
1. PERIOD OF AGREEMENT
This Agreement shall be effective as of November 10, 2000. This Agreement
shall govern sales of tantalum powder ("Powder") and tantalum wire
("Wire") to be delivered on or after January 1, 2002 and for a period of
five years thereafter until December 31, 2006.
2. QUANTITIES; SCHEDULING
Annual Product Quantities. Each calendar year commencing on or after
January 1, 2002 during the term of this Agreement, Buyer shall purchase
from CPM and CPM shall sell to Buyer the Annual Product Quantity of Powder
and the Annual Product Quantity of Wire stated on Appendix A for such
calendar year. Powder and Wire are each a "Product" for purposes of this
Agreement. The grades of Powder and the grades (expressed as diameters) of
Wire to be purchased and sold under this Agreement, and the permitted mix
of grades of each Product, are set forth on Appendix A.
Monthly/Quarterly Amounts. The Annual Product Quantity of each Product for
the calendar year 2002 shall be purchased by Buyer and delivered by CPM in
the respective quantities (and in the respective grade mix) specified on
Appendix C for each period specified on Appendix C from June, 2002 through
December 2002. During each quarter of a calendar year commencing with the
calendar year 2003, Buyer shall purchase, and CPM shall sell, one fourth
of the Annual Product Quantity of each Product specified for such year,
and the quantity of each Product to be purchased in a quarter
1
shall be purchased and sold in approximately equal monthly amounts during
each month of such quarter.
Allocations of Monthly/Quarterly Amounts among Grades. During the first
month of each calendar quarter in each calendar year, commencing October,
2002, Buyer shall send CPM a written notice proposing to allocate among
the respective grades of each Product the quarterly quantity (and each
monthly quantity) of such Product to be purchased in the next succeeding
calendar quarter, and during each month during such next succeeding
calendar quarter, as stated in the preceding paragraph, provided that the
proposed allocations of monthly and quarterly quantities of a Product
among the grades of such Product must be consistent with the monthly and
quarterly percentage allocation ranges for such grades set forth on
Appendix A. If CPM does not receive such a written proposal from Buyer for
a Product for a calendar quarter or if the proposal is not consistent with
this paragraph or the preceding paragraph, then the quarterly quantity
(and each monthly quantity) of such Product to be purchased in the next
succeeding quarter (and during each month during such quarter) as required
by the preceding paragraph shall be allocated by CPM among the grades of
such Product in accordance with the default percentages specified on
Appendix A.
Purchases by Other Subsidiaries of VII. Buyer may elect, by written notice
to CPM, to make purchases of Products under this Agreement for the account
of one or more other wholly owned subsidiaries of VII (each, an
"Additional Buyer Party"), but only for so long as such Additional Buyer
Party remains a wholly owned subsidiary of VII. If all or any portion of
the Products to be purchased during a month are to be purchased for the
account of one or more Additional Buyer Parties, Buyer will, within twenty
days prior to the beginning of such month, send written notice (an
"Additional Buyer Notice") to CPM specifying (i) the quantities and grades
of Products (of the total quantities and grades to be purchased such month
as set forth above) that are being purchased by Buyer for the account of
Buyer, and (ii) the quantities and grades of Products (of the total
quantities and grades to be purchased such month as set forth above) that
are being purchased by Buyer for the account of an Additional Buyer Party,
and identifying such Additional Buyer Party. In the event purchases are
being made by Buyer for the account of an Additional Buyer Party, such
Additional Buyer Party will be jointly and severally liable with Buyer for
all obligations of Buyer with respect to such purchase. The fact that
purchases are being made under this Agreement by Buyer for the account of
an Additional Buyer Party shall not relieve Buyer of any of its
obligations with respect to such purchase, and such purchase shall
nonetheless constitute a purchase by Buyer under this Agreement.
Calendar Year 2006 Amounts. If Excess Purchase Amounts (as defined below)
of Powder are purchased by Buyer during calendar years 2002 through 2005,
then the Annual Product Quantity of Powder on Appendix A for the calendar
year 2006 shall be deemed reduced by the lesser of (i) the aggregate
Excess Purchase Amounts of Powder purchased by Buyer during calendar years
2002 through 2005 and (ii) XXX pounds.
2
Excess Purchase Amounts. Not later than ninety days prior to the
commencement of any of the calendar years 2003, 2004 and 2005, Buyer may
request by written notice to CPM (an "Excess Purchase Notice") that the
Annual Product Quantity of Powder be increased for the next calendar year
by the amount stated in such notice and that such proposed increase be
allocated among the grades of Powder in the proportions stated in such
notice. CPM may, in its sole discretion, accept or reject, either in whole
or in part, the increase requested in the Excess Purchase Notice and the
proposed allocation among grades. CPM shall within forty five days after
receipt of an Excess Purchase Notice, notify Buyer in writing if CPM
accepts all or any portion of the requested increase and the proposed
allocation among grades, which acceptance notice will state the actual
increase accepted by CPM in Annual Product Quantity of Powder and the
allocation thereof among grades of Powder (an "Excess Purchase Acceptance
Notice"). If CPM does not deliver an Excess Purchase Acceptance Notice the
Annual Product Quantity of Powder for the next calendar year shall not be
changed. If CPM delivers an Excess Purchase Acceptance Notice the Annual
Product Quantity of Powder for the next calendar year shall be deemed
increased as requested in the Excess Purchase Notice and allocated among
grades of Powder as requested in the Excess Purchase Notice, but only to
the extent expressly accepted in the Excess Purchase Acceptance Notice.
For purposes of this Agreement, the term "Excess Purchase Amounts" shall
mean the aggregate increases pursuant to this paragraph in the Annual
Product Quantities of Powder over the calendar years 2002 through 2005
which have been accepted by CPM pursuant to an Excess Purchase Acceptance
Notice.
High Cap Powders. Prior to the commencement of any of the calendar years
2003, 2004, 2005 and 2006, Buyer will have the right, upon delivery of
written notice to CPM not later than the ninetieth day prior to the
beginning of such calendar year, to have included within the Annual
Product Quantity of Powder to be purchased in such calendar year up to XXX
pounds of High Cap Powders (as defined below) (the "High Cap
Powders Quantity"). High Cap Powders may be supplied to Buyer by CPM out
of products manufactured by CPM at its Boyertown plant or acquired by CPM
from Cabot Supermetals KK ("Supermetals"), at CPM's sole discretion. "High
Cap Powders" shall mean Powder with a capacitance of 80k cv/gram or
greater that are listed on Appendix A under the caption "High Cap
Powders", provided that any such Powder with a capacitance of 80k cv/gram
or greater which is manufactured only by Supermetals, and not by CPM's
Boyertown plant, shall cease to constitute High Cap Powders and Powder
(and shall be deemed deleted from Appendix A) if Supermetals ceases for
any reason to be a wholly owned subsidiary of Cabot Corporation, and CPM
shall thereafter have no obligation to manufacture, supply or sell any
such deleted Powder under this Agreement. If Buyer has exercised its right
to include High Cap Powders within the Annual Product Quantity of Powder
to be purchased in a calendar year, then the default percentages of each
grade of Powder stated on Appendix A shall each be adjusted by the
percentage that the High Capacity Powders Quantity for such calendar year
represents of the Annual Product Quantity of Powder for such calendar
year.
3
Take or Pay. Buyer shall in all events, however, pay CPM each year for the
full Annual Product Quantity of Powder and of Wire, regardless of whether
Buyer schedules or takes delivery of such products.
Additional Grades. The parties recognize that CPM may, in its sole
discretion, from time to time develop and offer for general commercial
sale grades of a Product in addition to those grades of such Product
listed on Appendix A, but that CPM has no obligation to do so. In the
event CPM so offers an additional grade of a Product for general
commercial sale, Buyer may request in writing that Appendix A be amended
to include such additional grade of such Product (an "Additional Grade
Request"), which Additional Grade Request will also include the proposed
revised minimum and maximum and default percentages for all grades of such
Product assuming the additional grade is added to Appendix A. CPM shall
within forty five days after receipt of an Additional Grade Request,
notify Buyer in writing (an "Additional Grade Acceptance") if CPM is
willing to amend Appendix A to include such additional grade of such
Product, and if so, the revised minimum and maximum and default
percentages for all grades of such Product that CPM is willing to accept
assuming such additional grade is added to Appendix A. The Additional
Grade Acceptance will also state the price per pound at which CPM is
willing to sell such additional grade of such Product, will include the
Applicable Specifications to which CPM is willing to manufacture and sell
such additional grade for general commercial sale, and will include any
other terms which CPM requires be included for the sale of such additional
grade. If CPM delivers an Additional Grade Acceptance to Buyer, Buyer will
have thirty days after receipt to notify CPM in writing if Buyer accepts
the terms specified in the Additional Grade Acceptance. If Buyer so
notifies CPM in writing that Buyer accepts the percentages, price,
specifications and other terms set forth in the Additional Grade
Acceptance, Appendix A will be deemed amended to include such additional
grade of such Product, the price therefor and the revised minimum and
maximum and default percentages for all grades of such Product, all as
specified in the Additional Grade Acceptance, and Appendix D will be
deemed amended to include the Additional Specifications for such
additional grade as set forth in the Additional Grade Acceptance. For the
avoidance of doubt, Buyer shall have no obligation to request the
inclusion of an additional grade of a Product, and CPM shall have no
obligation to agree to any such request, it being within the sole
discretion of each party to agree to amend Appendix A and Appendix D to
include an additional grade of a Product, the price and Applicable
Specifications therefor and to make corresponding changes to the minimum
and maximum and default percentages for all other grades of such Product.
Niobium. The parties recognize that CPM may, in its sole discretion, from
time to time develop and offer for general commercial sale one or more
niobium products, but that CPM has no obligation to do so. It is the
respective intent and desire of the parties that, if CPM so offers a
niobium product for general commercial sale, the preexisting commercial
relationship of the parties will facilitate sales by CPM to Buyer of such
niobium product on such terms and conditions, and at such prices, as the
parties may, in their sole discretion, agree upon at such time. The
provisions of this paragraph are an expression of intent and desire only,
and are not binding in any respect on the parties.
4
3. PRICE
The price per pound for Products to be purchased under this Agreement
during a calendar year during the term of this Agreement is the applicable
price per pound for such Product specified on Appendix A for the
applicable calendar year. All prices are FOB Boyertown, PA.
If the price per pound for Products to be purchased under this Agreement
during the calendar year 2004, the calendar year 2005 or the calendar year
2006 is reduced pursuant to Section 3 of the Amendment Agreement from $XXX
per pound to $XXX per pound for the applicable calendar year (a "Reduced
Price"), then the Reduced Price in effect during such calendar year shall
be adjusted automatically on the first day of every quarter in such
calendar year to a price per pound per Product equal to the Average Market
Price during the calendar quarter ended immediately prior to such
adjustment date, provided that in no event will the Reduced Price in
effect during calendar year 2004, if any, or the Reduced Price in effect
during calendar year 2005, if any, ever be adjusted below $XXX per pound,
and, provided, further, that in no event will the Reduced Price in effect
during calendar year 2006, if any, ever be adjusted below $XXX per pound.
For purposes of this section 3, the Average Market Price during any
quarter shall mean the weighted average price of sales by CPM (other than
sales to Buyer under this Agreement or the Amended July Agreement (as
defined in the Amendment Agreement) and other than sales to affiliates of
CPM) of tantalum powder with a CV capability equal to or greater than C706
during such quarter as set forth on the applicable CPM invoices (but
excluding taxes and adjusted, in the case of sales which are not FOB
Boyertown, to the effective price FOB Boyertown). The Average Market Price
shall be determined by CPM, and CPM shall send written notice to Buyer of
the Average Market Price so determined by CPM as of each adjustment date.
Buyer shall have the right not more than once each calendar year that a
Reduced Price is in effect to have an independent third party auditor
review the books and records of CPM on the basis of which the Average
Market Price was determined by CPM to determine whether CPM's
determination of the Average Market Price was determined in accordance
with this Agreement, provided that such independent third party auditor
must enter into a confidentiality agreement with CPM in form and substance
reasonably satisfactory to CPM agreeing not to disclose to any person,
including, without limitation, Buyer, any of the information so received
or reviewed by such auditor, subject to such auditor's right and
obligation to disclose to CPM and Buyer whether or not CPM's determination
of the Average Market Price was made in accordance with this Agreement.
4. INVOICE AND PAYMENTS
CPM shall invoice Buyer upon delivery for all Products delivered. Buyer
shall pay such invoices with immediately available funds within thirty
(30) days of invoice date.
5
5. FORCE MAJEURE
Neither party hereto shall be liable to the other for default or delay in
performing its obligations hereunder if caused by fire, explosion, strike,
lockout, labour conflict, riot, war, acts of God, delay of carriers,
governmental order or regulation, and/or any other occurrence beyond the
reasonable control of the party so defaulting or delaying, including,
without limitation, a shortage of raw material or power beyond the
reasonable control of the party so defaulting or delaying, so long as such
Force Majeure is in effect; provided, however, that no party shall be
excused by reason of Force Majeure from any obligation to pay money when
due.
6. CONFIDENTIALITY
During the term of this Agreement and for a period of two years
thereafter, neither Buyer nor CPM shall disclose to others the existence
or contents of this Agreement, except to the extent required by law or
regulation or applicable securities exchange regulations or as required by
a court or agency of competent jurisdiction, provided that (i) nothing
shall preclude the disclosure by CPM of pricing and other terms of this
Agreement, but without identifying the Buyer, to the extent that such
disclosure is required by other contractual obligations of CPM providing
for price adjustments based on other sales by CPM, and (ii) nothing shall
preclude the disclosure by either Buyer or CPM of the existence of this
Agreement, the Amendment Agreement or the Amended July Agreement and the
aggregate annual tantalum purchase commitments hereunder and thereunder
(in aggregated dollars, not pounds of tantalum). The provisions of this
Section 6 shall survive the termination of this Agreement.
7. WARRANTY; LIMITATION OF LIABILITY
The specifications that are applicable to Powder (and to the respective
grades of Powder) and the specifications that are applicable to Wire (and
to the respective grades of Wire) are set forth on Appendix D to this
Agreement (the "Applicable Specifications"). CPM warrants that all Product
delivered by CPM under this Agreement shall meet the Applicable
Specifications for such Product (and its stated grade) at the time of
delivery. CPM shall have no obligation or liability for any breach of the
foregoing warranty except, at CPM's election, either to replace Product
which did not meet the Applicable Specifications for such Product (and its
stated grade) or to refund the purchase price previously paid by Buyer for
Product which did not meet the Applicable Specifications for such Product
(and its stated grade).
CPM MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS
TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL
CPM BE RESPONSIBLE OR LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES.
6
The Buyer will have ninety days after the date of delivery of Product to
inspect the delivered Product and, if the results of such inspection by
Buyer indicate that such delivered Product did not meet one or more of the
Applicable Specifications for such Product (and its stated grade), to
deliver a written notice to CPM stating that Buyer rejects such delivered
Product to the extent it failed to meet an Applicable Specification for
such Product (and its stated grade) and describing the basis for such
rejection, including each Applicable Specification for such Product (and
its stated grade) that Buyer asserts was not met, the inspection and tests
performed by Buyer to make such determination and the results of such
tests (the "Rejection Notice").
If Buyer does not deliver a Rejection Notice within 90 days after delivery
of Product, the delivered Product shall be deemed conclusively (except to
the extent expressly stated in the next succeeding paragraph) to have met
the Applicable Specifications for such Product (and its stated grade) and
shall be deemed accepted by Buyer. If Buyer delivers a Rejection Notice in
accordance with this section, CPM and Buyer shall confer to resolve any
questions CPM may have as to whether the Product which Buyer wishes to
reject failed to meet one or more of the Applicable Specifications for
such Product (and its stated grade). If requested by CPM, Buyer shall
return to CPM, in accordance with CPM's instructions, Product which failed
to meet one or more of the Applicable Specifications for such Product (and
its stated grade).
CPM and Buyer acknowledge that Buyer will be holding some or all of the
Product in inventory for varying periods of time prior to Buyer's actual
use of such Product in production. If (i) Buyer does not use a quantity of
Product in actual production until after the ninetieth day after delivery
of such quantity of Product under this Agreement, (ii) during and as a
result of such actual production, Buyer determines that such quantity of
Product failed to meet one or more of the Applicable Specifications for
such Product (and its stated grade) at the time of delivery of such
quantity of Product by CPM, and (iii) it was only possible to detect such
failure to meet such Applicable Specification(s) during actual production,
then Buyer may send a notice to CPM stating the quantity of Product so
affected, the date of its delivery by CPM, each Applicable Specification
for such Product (and its stated grade) that Buyer asserts was not met at
such time of delivery and that such failure was determined during and as a
result of actual production by Buyer. Buyer will have the burden of proof
of demonstrating to CPM's reasonable satisfaction that such quantity of
Product did not meet one or more of the Applicable Specifications at the
time of delivery by CPM and that such failure was detected by Buyer for
the first time during and as a result of actual production, and could only
have been detected during actual production. If CPM does not agree with
Buyer's assertions, Buyer may require that Product be tested by an
independent third party laboratory reasonably satisfactory to Buyer and
CPM, and the results of such testing shall be deemed conclusive as to such
test results, but the parties agree that such tests will not be
determinative of whether the noncompliance existed at the time of delivery
(as required for CPM to be obligated to replace or refund) or occurred
thereafter. The fact that actual production may disclose the failure of a
quantity of Product to meet one or more Applicable Specifications shall in
no event be deemed a guaranty or warranty by CPM that Product is or will
be fit for a
7
particular purpose or use or will result in a specified or minimum or
maximum yield during actual production.
For the avoidance of doubt, (i) neither Buyer's internal product
qualification procedures nor any quality holds it may place on any Product
shall be deemed to alter the parties' respective rights and obligations
under this Agreement or be used by Buyer as a reason for not purchasing or
rejecting Product delivered under this Agreement, (ii) Buyer's acceptance
or deemed acceptance of Product is not a precondition to Buyer's
obligation to pay the purchase price for Product invoiced under this
Agreement, and (iii) neither the delivery of one or more Rejection Notices
by Buyer nor the replacement of or the refunding of the purchase price of
nonconforming Product by CPM shall be deemed to alter the Annual Product
Quantity of each Product which must be purchased by Buyer under this
Agreement.
8. SCRAP SALE BY BUYER
Each calendar year during the term of this Agreement through calendar year
2005, Buyer shall sell and CPM shall purchase tantalum contained in scrap
materials ("Scrap") in the quantities (based on pounds of contained
tantalum in the Scrap), of the grades and at the prices set forth on
Appendix B. Scrap prices are FOB VSI's plant. It is expected that Scrap
will be supplied in approximately equal quarterly deliveries. The prices
for Scrap set forth on Appendix B shall be retroactively and
proportionately decreased in each calendar quarter to the extent to which
the price per pound payable by Buyer for Powder under this Agreement is
less than $XXX per pound in such quarter.
9. GOVERNING LAW
This Agreement shall be governed by and construed under the laws of The
Commonwealth of Massachusetts. The United Nations Convention for
International Sales and Purchases of Goods shall not apply. Any legal
proceedings arising out of or pertaining in any way to this Agreement that
may be commenced against any of the parties hereto shall be commenced only
in the federal or state courts located in the Commonwealth of
Massachusetts, and each of the parties hereto consents to the exclusive
jurisdiction of said courts in any such action or proceedings and waives
any objection to venue laid therein, provided, however, that nothing in
this paragraph shall be construed to preclude any party from asserting any
counter-claim or cross-claim in any legal proceeding commenced against
that party in any forum outside the Commonwealth of Massachusetts.
10. MISCELLANEOUS
This Agreement, the Amendment Agreement, the Amended July Agreement, the
Releases (as defined in the Amendment Agreement) and the Stipulation of
Dismissal (as defined in the Amendment Agreement) constitute the entire
understanding of the parties
8
and supersede all prior agreements and discussions among the parties
respecting the subject matter hereof and thereof, including, without
limitation, the Original Agreement. No modification of this Agreement or
waiver of the terms and conditions hereof shall be effective unless made
in writing, signed by authorized representatives of CPM and Buyer and
expressly stated to be a modification or waiver of this Agreement. No
waiver by either party of any breach of any of the terms and conditions
herein contained to be performed by the other party shall be construed as
a waiver of any subsequent breach, whether of the same or of any other
term or condition hereof. If any of the provisions of this Agreement is
held to be illegal, invalid or unenforceable in any respect or as against
any party under applicable law, the legality, validity and enforceability
of the remaining provisions shall not be affected or impaired in respect
of all or any of the parties, and such illegal, invalid or unenforceable
provision shall be reformed and construed so that it will be legal, valid
and enforceable to the maximum extent permitted by applicable law.
11. JOINT AND SEVERAL OBLIGATIONS OF BUYER.
VII and VSI are each jointly and severally liable for the obligations of
the Buyer under this Agreement. For the avoidance of doubt, references to
CPM shall not be deemed to include Supermetals or any other affiliate of
Cabot Corporation.
9
IN WITNESS WHEREOF, the parties have executed this Agreement as of the day,
month and year above written.
Cabot Corporation Vishay Sprague, Inc.
By: _________________________ By: ________________________
Title: ________________________ Title:______________________
Vishay Intertechnology, Inc.
By: ________________________
Title: _____________________
10
Exhibit 5A
RELEASE
In consideration of payment of one dollar ($1.00), together with other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Vishay Intertechnology, Inc., Vishay Sprague, Inc., Vishay Sprague
Sanford, Inc., on behalf of themselves and each of their subsidiaries,
divisions, affiliates, corporate parents, joint ventures, partnerships, limited
partnerships, predecessors, successors and assigns, and each director, officer,
general partner, limited partner, employee, servant, agent and attorney thereof
(collectively the "RELEASERS"), hereby remise, release and forever discharge
Cabot Corporation, its subsidiaries, divisions (including, without limitation,
the Cabot Performance Materials Division), affiliates, corporate parents, joint
ventures, partnerships, limited partnerships, predecessors, successors and
assigns and each director, officer, general partner, limited partner, employee,
servant and agent thereof (collectively the "RELEASEE"), of and from all claims,
demands, actions, causes of action, suits, accounts, and any and all debts,
damages, and liabilities whatsoever of every name, and nature, both in law or in
equity, which the RELEASERS now have or ever had against the RELEASEE, from the
beginning of time to the date of this Release, arising out of, related to, or
connected with the written Supply Agreement, dated July 14, 2000, by and between
Cabot Corporation and Vishay Sprague, Inc., and the written Supply Agreement,
dated November 10, 2000, by and between Cabot Corporation and Vishay Sprague,
Inc. (collectively, the "Supply Agreements"), and the transactions contemplated
therein, including, without limitation, all claims, counterclaims, and defenses
asserted, or that could have been asserted, in or in connection with the
litigation titled
11
Cabot Corporation v. Vishay Intertechnology, Inc., et al., Civil Action No.
02-1584-BLS, pending in the Superior Court for Suffolk County, Massachusetts
(the "LITIGATION"), which LITIGATION shall be dismissed with prejudice and
without costs or attorney's fees to any party.
By executing this Release, the RELEASERS expressly agree and acknowledge
that their representatives have read this document with care and with the advice
of counsel, and that no representation of fact or opinion had been made to
RELEASERS by anyone which has induced the RELEASERS in any manner to execute
this Release. RELEASERS further understand and agree that this Release is
executed for the purpose of compromise, and is not in any way to be construed as
an admission of liability on the part of any of the RELEASEE.
In WITNESS HEREOF, the RELEASERS have caused this release to be executed
by their duly authorized representatives this _____ day of June, 2002.
VISHAY INTERTECHNOLOGY, INC. VISHAY SPRAGUE, INC.
By_____________________________ By_____________________________
Title: Title:
- ------------------------------- -------------------------------
Witness Witness
VISHAY SPRAGUE SANFORD, INC.
By_____________________________
Title:
- -------------------------------
Witness
12
Exhibit 5B
RELEASE
In consideration of payment of one dollar ($1.00), together with other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, Cabot Corporation, on behalf of itself and each of its
subsidiaries, divisions (including the Cabot Performance Materials Division),
affiliates, corporate parents, joint ventures, partnerships, limited
partnerships, predecessors, successors and assigns, and each director, officer,
general partner, limited partner, employee, servant and agent thereof
(collectively the "RELEASER"), hereby remises, releases and forever discharges
Vishay Intertechnology, Inc., Vishay Sprague, Inc., Vishay Sprague Sanford,
Inc., and each of their subsidiaries, divisions, affiliates, joint ventures,
partnerships, limited partnerships, and each director, officer, general partner,
limited partner, employee, servant, agent and attorney thereof (collectively the
"RELEASEES"), of and from all claims, demands, actions, causes of action, suits,
accounts, and any and all debts, damages, and liabilities whatsoever of every
name, and nature, both in law or in equity, which the RELEASER now has or ever
had against any of the RELEASEES, from the beginning of time to the date of this
Release, arising out of, related to, or connected with the written Supply
Agreement, dated July 14, 2000, by and between Cabot Corporation and Vishay
Sprague, Inc., and the written Supply Agreement, dated November 10, 2000, by and
between Cabot Corporation and Vishay Sprague, Inc. (collectively, the "Supply
Agreements"), and the transactions contemplated therein, including, without
limitation, all claims, counterclaims, and defenses asserted, or that could have
been asserted, in or in connection with the litigation titled Cabot Corporation
v. Vishay Intertechnology, Inc., et al.,
1
Civil Action No. 02-1584-BLS, pending in the Superior Court for Suffolk County,
Massachusetts (the "LITIGATION"), which LITIGATION shall be dismissed with
prejudice and without costs or attorney's fees to any party.
By executing this Release, the RELEASER expressly agrees and acknowledges
that its representatives have read this document with care and with the advice
of counsel, and that no representation of fact or opinion had been made to
RELEASER by anyone which has induced the RELEASER in any manner to execute this
Release. RELEASER further understands and agrees that this Release is executed
for the purpose of compromise, and is not in any way to be construed as an
admission of liability on the part of any of the RELEASEES.
In WITNESS HEREOF, the RELEASER has caused this release to be executed by
its duly authorized representative this _____ day of June, 2002.
CABOT CORPORATION
By_____________________________
Title:
-------------------------------
Witness
2
Exhibit 5C
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, SS. SUPERIOR COURT
- ---------------------------------------
)
CABOT CORPORATION, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. 02-1584-BLS
(Judgevan Gestel)
VISHAY INTERTECHNOLOGY, INC., )
VISHAY SPRAGUE, INC., and )
VISHAY SPRAGUE SANFORD, INC., )
)
Defendants. )
)
- ---------------------------------------
STIPULATION OF DISMISSAL WITH PREJUDICE
Plaintiff Cabot Corporation and defendants Vishay Intertechnology, Inc.,
Vishay Sprague, Inc., and Vishay Sprague Sanford, Inc., constituting all of the
parties who have appeared in this proceeding, hereby stipulate, pursuant to
Mass. R. Civ. P. 41(a)(1)(ii), that this action, including any and all claims,
counterclaims, and defenses asserted herein, is hereby dismissed with prejudice
and without costs or attorney's fees to any party.
CABOT CORPORATION VISHAY INTERTECHNOLOGY, INC.
By its attorneys, By its attorneys,
- ----------------------------------- -----------------------------------
Robert S. Frank, Jr. (BBO No. 130950) Neil P. Motenko (BBO No. 358160)
Brian A. Davis (BBO No. 546462) NUTTER, McCLENNAN & FISH LLP
CHOATE, HALL & STEWART One International Place
Exchange Place Boston, Massachusetts 02110
53 State Street Tele: 617-439-2000
1
Boston, Massachusetts 02109
Tele: 617-248-5000
VISHAY SPRAGUE, INC.
and VISHAY SPRAGUE SANFORD, INC.
By their attorneys,
- ----------------------------------
Steven W. Phillips (BBO No. 398680)
FOLEY HOAG LLP
155 Seaport Boulevard
Boston, Massachusetts 02210 Tele:
617-832-1000
Alan R. Friedman (pro hac vice)
Jonathan M. Wagner (pro hac vice)
KRAMER LEVIN
NAFTALIS & FRANKEL LLP
919 Third Avenue
New York, New York 10022
Tele: 212-715-9100
Date: June ___, 2002
2