EXHIBIT 10.59
CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED BASED ON A
REQUEST FOR CONFIDENTIAL TREATMENT
OMITTED PORTIONS HAVE BEEN SEPARATELY FILED WITH THE SECURITIES
AND EXCHANGE COMMISSION
AGREEMENT
THIS AGREEMENT is made effective as of January 1 2001 ("the Effective
Date") BETWEEN
1. CONOCO INC. ("Seller") of 600 North Dairy Ashford Road, Houston, Texas
77079 and
2. UCAR CARBON COMPANY INC. ("UCARINC") and UCAR S.A. (together,
"Buyer") of 3102 West End Avenue, Suite 1100, Nashville, Tennessee,
(each a "Party" and together "the Parties") and confirms and sets forth the
terms and conditions agreed for (i) the supply of needle coke ("Coke"), (ii) a
[TEXT DELETED] of [TEXT DELETED] on the sale of Coke by Seller and its
subsidiary, Conoco (UK) Limited (together "Conoco") to Buyer and [TEXT DELETED]
by Buyer and its affiliates (collectively, "UCAR") and (iii) the collaboration
for the joint development of certain new technologies.
1. Principles Governing the Agreement. This Agreement shall be governed
by the following principles, which each of Seller and Buyer agrees to
observe and implement together with their respective parent
corporations and affiliates where applicable:
(a) The Parties shall extract benefits from the marketplace and not
each other.
(b) The Parties shall establish a mindset and openness that
enables the Coke to [TEXT DELETED] between Conoco and UCAR to be
optimized and maximized.
(c) The Parties shall align the organizations for
breakthrough performance in achieving both efficiency and
growth objectives to drive supply chain cost reductions and
value creation.
(d) The Parties shall provide flexibility in implementation of the
Agreement to accommodate an ever-changing world.
(e) The Parties shall simplify their work processes where
possible to avoid business paralysis, achieve efficiency and
create value.
(f) The Parties are committed to resolving conflicts and
issues constructively using an internal dispute resolution
mechanism building on the theme that the Agreement will be a
long-term relationship with potentially high barriers to exit.
2. Supply and Quantity.
2.1 Subject to all the terms and provisions of the Agreement, Seller
shall supply and Buyer shall purchase, receive and pay for an
agreed-upon quantity and quality of Coke during each year of the
Agreement with the intent being for Seller and its affiliates to supply
as much Coke as [TEXT DELETED] and [TEXT DELETED], [TEXT DELETED]
subject always to Buyer's obligations for purchases of Coke from other
producers existing as of the Effective Date. The intent is that the
quantity of Coke supplied under this agreement will be in the range of
[TEXT DELETED] per year. Periodically, but no less frequently than
quarterly from the Effective Date, Buyer shall provide a 12 month
forecast in writing for quantities and Grades of Coke to be supplied
hereunder and broken down by month (each a "Forecast"). If Seller
objects to a Forecast, it shall notify Buyer within 10 business days of
its receipt of such Forecast and Seller and Buyer shall proceed to
agree on a mutually agreeable Forecast. The Forecasts so applied shall
become part of this Agreement, and each Forecast shall serve as an
amendment of the prior Forecast for purposes of this Agreement.
2.2 Buyer recognizes that Seller and its affiliates will continue to
sell Coke to other customers and will from time to time have
initiatives to improve Coke quality and quantity to these customers.
2.3 Buyer further recognizes that, upon the occurrence of a force
majeure event, Seller and its affiliates each has an obligation to
supply its respective customers on a fair and equitable basis under the
circumstances. Seller recognizes, solely for purposes of this Section
2.3, that Coke is essential to graphite electrodes which are essential
to electric arc furnace steel production, that UCAR is the [TEXT
DELETED] manufacturer of graphite electrodes and supplies [TEXT
DELETED]% of the world's consumption thereof, that a material
disruption in the supply of graphite electrodes could materially affect
the steel industry and important aspects of the economy, and that,
under the Agreement, UCAR will become [TEXT DELETED] on [TEXT DELETED]
for its [TEXT DELETED] for Coke and [TEXT DELETED] of the [text
deleted] of Coke from Conoco. Therefore, upon the occurrence of a force
majeure event, Seller shall consider the foregoing factors in
allocating its supply of Coke equitably amongst all its customers and
any [TEXT DELETED] in such supply to [TEXT DELETED] shall be [TEXT
DELETED] is to [TEXT DELETED].
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3. QUALITY.
3.1 The Coke to be supplied and purchased pursuant to the Agreement
shall be the under- mentioned grades of coke derived from petroleum oil
processing at Seller's Westlake, Louisiana refinery and conforming to
the quality requirements set out in Section 3.2 below (each a "Grade"):
i) Lake Charles [TEXT DELETED] Grade ("[TEXT DELETED] Grade")
ii) Lake Charles [TEXT DELETED] Grade ("[TEXT DELETED] Grade")
iii) Lake Charles [TEXT DELETED] Grade ("[TEXT DELETED] Grade")
Unless the context otherwise requires, any reference to "Coke" alone
shall be understood to refer to and include any or all such Grades.
3.2 Each such Grade shall have physical properties that conform to those
listed in the applicable specifications of Appendix C.
3.3 The quality of each Grade of Coke delivered hereunder will be
determined by testing samples which will be taken by Conoco as the Coke
is loaded into Buyers designated transportation equipment (vessels,
barges, trucks or railcars) at [TEXT DELETED] or [TEXT DELETED] or at
such other loading facility as may be mutually agreed upon by Buyer and
Seller. For coke delivered into railcars, each sample will include coke
which is being loaded in up to eight railcars.
3.4 Conoco will divide each Coke sample into two equal portions.
Conoco will (i) test one portion at its own laboratory to determine the
Coke's physical properties, and (ii) retain the second portion for 90
days after the sample is obtained.
3.5 Upon receipt of the Coke sample test results from its
laboratory, Conoco will prepare a Quality Certificate, which it will
immediately fax or transmit electronically to Buyer. If Buyer objects
to Conoco's test results/quality determination, then the retained
sample will be analyzed at a mutually acceptable independent testing
laboratory. The cost of the independent testing laboratory's analysis
will be shared equally by Seller and Buyer.
3.6 From time to time Seller and Buyer may agree upon revised
specifications to existing Grades of Coke or the introduction of new
Grades of Coke. In such an event an addition or modification shall also
be
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agreed to Appendix C setting forth the properties and specification
values applicable to each such specification revision or new Grade.
4. DELIVERY.
4.1 All prices applicable under the provision of Section 5 below
shall apply (unless otherwise expressly agreed) on the basis that Coke
is delivered [TEXT DELETED] and/or [TEXT DELETED] and/or delivered into
road vehicles or containers at said [TEXT DELETED] (and/or at such
other loading facility upon which Buyer and Seller mutually agree), in
each case in the manner specified in General Condition 1.
4.2 Prior to the first day of each delivery month, Seller and Buyer
shall agree upon a mutually acceptable delivery schedule for the next
delivery month and may mutually agree upon adjustments to the delivery
schedule with the intent being to improve upon the supply chain
process.
5. [TEXT DELETED] AGREEMENT.
As of the Effective Date, each of Seller and Buyer shall [TEXT DELETED]
in [TEXT DELETED] in the [TEXT DELETED] for [TEXT DELETED] by [TEXT
DELETED], as determined pursuant to the following provisions of this
Section 5. To accomplish the foregoing, the following terms shall
apply:
5.1 Definitions. [TEXT DELETED] ("[TEXT DELETED]") for any period
means (i) net [TEXT DELETED] of [TEXT DELETED], less (ii) [TEXT
DELETED] of [TEXT DELETED], plus (iii) [TEXT DELETED], less (iv) [TEXT
DELETED], and less (v) an allocation of [TEXT DELETED] and [TEXT
DELETED] as applicable to [TEXT DELETED] (each of (i), (ii), (iii),
(iv) and (v) being calculated consistently with [TEXT DELETED]
accounting policies and methodologies as they applied on [TEXT DELETED]
and otherwise in accordance with U.S. GAAP), in each case for the
relevant period. [TEXT DELETED] ("[TEXT DELETED]%") for any period
means [TEXT DELETED] for the relevant period divided by [TEXT DELETED]
of [TEXT DELETED]. For purposes of calculating [TEXT DELETED] and [text
deleted]%, [TEXT DELETED] of [TEXT DELETED] includes [TEXT DELETED]
from other [TEXT DELETED] as accounted for in the [TEXT DELETED] for
the relevant period consistently with said accounting policies and
methodologies applicable at [TEXT DELETED].
5.2 [TEXT DELETED] OF COKE PRICE.
5.2.1 The price to be paid by Buyer and received by Seller for
all Coke supplied [TEXT DELETED] or [TEXT DELETED] or into
road vehicles or containers at said [TEXT DELETED] (or at such
other loading
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facility upon which Buyer and Seller may mutually agree) shall be
calculated in accordance with the following [TEXT DELETED] (the "[TEXT
DELETED]") and expressed in US$ per MT:
(a) the price for [TEXT DELETED] Coke shall be (i) [TEXT DELETED]%
multiplied by $[TEXT DELETED], plus (ii) $[TEXT DELETED]
(b) the price for [TEXT DELETED] Coke shall be the [TEXT DELETED] price as
ascertained as above plus $[TEXT DELETED]
(c) the price for [TEXT DELETED] Coke shall be the [TEXT DELETED] price as
ascertained as above minus $[TEXT DELETED]
5.2.2 For purposes of calculating the [TEXT DELETED] price, the
[TEXT DELETED]% shall be expressed as a portion of 100 (i.e., a [TEXT
DELETED]% of [TEXT DELETED]% shall be expressed as [TEXT DELETED] and
not [TEXT DELETED]).
5.2.3 If new Grades of Coke are developed in the future, prices therefore
will be negotiated based on their relationship (in terms of quality
and cost to produce) to the existing Grades. If the mix of grades of
Coke purchased by UCAR from Conoco is changed by UCAR so that the
[TEXT DELETED] of [TEXT DELETED] Grade (as defined in the Humber
Agreement as referred to and defined in 5.4 below) and [TEXT DELETED]
Grade (which, together with the [TEXT DELETED] as taken by UCAR from
suppliers other than Conoco, are hereinafter referred to collectively
as "Premium Grades") exceeds [TEXT DELETED]% of the total volume of
Coke purchased by UCAR from Conoco, Seller and Buyer will renegotiate
the [TEXT DELETED] between the price for those Grades and the price
for [TEXT DELETED] so as to preserve the intent of the Parties and
their respective parent corporations with respect to [TEXT DELETED].
An increase in the volume of Premium Grades purchased from Conoco
because UCAR sources higher percentages of their combined requirements
for Premium Grades from Conoco instead of other suppliers shall not
constitute a change in product mix (using 2000 as the base year).
5.3 APPLICATION OF [TEXT DELETED].
The [TEXT DELETED] shall be applied as follows:
5.3.1 Prices for invoicing and payment purposes
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(a) For the year [TEXT DELETED] the prices to be used for invoicing
and payment for Coke supplied under this Agreement will be
[TEXT DELETED] at the following:
Grade [TEXT DELETED] - $[TEXT DELETED] per metric ton
Grade [TEXT DELETED] - $[TEXT DELETED] per metric ton
Grade [TEXT DELETED] - $[TEXT DELETED] per metric ton
(b) From and after the quarter beginning on [TEXT DELETED], the prices
to be used for invoicing for Coke supplied during each quarter will be
adjusted on a quarterly basis as described in Sections 5.3.3 and
5.3.4 hereof.
5.3.2 [TEXT DELETED] typically closes its books approximately
[TEXT DELETED] days after each quarter-end and approximately [TEXT
DELETED] days after each year-end. Buyer will provide (or cause [TEXT
DELETED] to provide) Seller with [TEXT DELETED]'s calculation of the
"[TEXT DELETED]" [TEXT DELETED]% (before making the calculation
described in Section 5.3.3 hereof) for each quarter, beginning with
the quarter ending [TEXT DELETED], within [TEXT DELETED] business days
after [TEXT DELETED] closes its books for that quarter; provided,
however, that for the [TEXT DELETED] of this Agreement (ending [TEXT
DELETED]), the [TEXT DELETED]% shall be provided by [TEXT DELETED]
within [TEXT DELETED] business days after [TEXT DELETED] closes its
books for the quarter.
5.3.3 Within [TEXT DELETED] business days after [TEXT DELETED] provides
the [TEXT DELETED]% for each quarter (the "Prior Quarter")
beginning with the quarter ending [TEXT DELETED], the Parties will
calculate what the [TEXT DELETED]% would have been for the Prior
Quarter if the prices for all Coke supplied and purchased during the
Prior Quarter had been those provided for under the [TEXT DELETED]
(the "[TEXT DELETED]") and such calculations shall continue in an
iterative process until the [TEXT DELETED] for [TEXT DELETED] Grade
for any quarter changes by no more than $1 per metric ton.
5.3.4 Subject to Section 5.3.1A and 5.3.5 hereof, the [TEXT
DELETED] shall be used as the invoicing prices for all Coke supplied
and purchased in the subsequent quarter. The difference between the
total Coke prices that were actually invoiced and paid during the
Prior Quarter and the total
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prices that would have been charged and paid in respect of that same
quarter if the [TEXT DELETED] had been used is called the "[TEXT
DELETED]."
For example, if [TEXT DELETED] closes its books for the quarter ending
[TEXT DELETED] on [TEXT DELETED], it shall provide the [TEXT DELETED]%
to Seller by [TEXT DELETED]. The Parties will calculate the [TEXT
DELETED] by [TEXT DELETED]. The [TEXT DELETED] thus ascertained will
then be applied:
(a) for the purposes of ascertaining the [TEXT DELETED] in relation to
the Prior Quarter (in this example the quarter ending [TEXT DELETED])
and
(b) as the invoicing prices for the quarter beginning on [TEXT DELETED].
5.3.5 If the [TEXT DELETED] for [TEXT DELETED] Grade when determined by the
determined by the [TEXT DELETED] is either [TEXT DELETED] a [TEXT
DELETED] price of $[TEXT DELETED]/MT or [TEXT DELETED] a [TEXT
DELETED] price of $[TEXT DELETED]/MT then any amounts above or below
this minimum/maximum range will be disregarded for the purposes of
(a) determining the [TEXT DELETED] to be used pursuant to 5.3.4 above; and
(b) the [TEXT DELETED].
5.3.6 In the event that the [TEXT DELETED] yields a price for [TEXT DELETED]
Grade which is outside this minimum/maximum range for [TEXT DELETED]
then the [TEXT DELETED] shall be [TEXT DELETED] as provided in Section
5.5.
5.3.7 Appendix B illustrates the manner in which [TEXT DELETED]% is to be
calculated and the resultant calculation of the [TEXT DELETED].
5.4 ADDITIONAL PROCEDURES. The [TEXT DELETED] shall accumulate on a
net basis from quarter to quarter and, for ease of administration, the
[TEXT DELETED] applicable under this Agreement shall be aggregated with
the [TEXT DELETED] applicable under the concurrent Agreement of even
date herewith made between Conoco (UK) Limited as seller and UCAR S.A.
as buyer for the sale and purchase of Coke produced at Conoco (UK)
Limited's Humber refinery ("the Humber Agreement") and shall be
administered for the purposes of this present Agreement as if the
aggregated [TEXT DELETED] accumulated under the Humber
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Agreement. Whenever the net accumulated amount of the aggregated [TEXT
DELETED] exceeds $[TEXT DELETED] then, within [TEXT DELETED] business
days after such excess is determined, an amount equal to the excess
over $[TEXT DELETED] shall be paid by the advantaged entity (meaning
here Conoco or UCARINC as the case may require) to the other and
receipt of such payment by the entity receiving the same shall be a
good and sufficient discharge of the liability of Seller or Buyer (as
the case may be) for payment of so much of the amount so paid as may
have become due and payable pursuant to this present Agreement alone.
5.5 REEVALUATION OF [TEXT DELETED]. Seller and Buyer agree that,
together with their respective parent corporations, they will [TEXT
DELETED] the [TEXT DELETED] when [TEXT DELETED] changes occur in the
[TEXT DELETED] of their respective businesses and shall continue to
[TEXT DELETED] and [TEXT DELETED] a [TEXT DELETED] for the Coke
business that [TEXT DELETED] enable each party to [TEXT DELETED] the
[TEXT DELETED] and [TEXT DELETED] of Coke sales by Conoco to UCAR and
[TEXT DELETED] by [TEXT DELETED].
5.6 AUDIT RIGHTS. Each of Seller and Buyer will permit the other
Party and its representatives limited audit rights to ensure compliance
with the Agreement in areas relating to [TEXT DELETED], but excluding
any access to third party Coke pricing. Each Party will be provided by
the other with reasonable access to the related facilities, books,
records and documents.
5.7 VAT AND CLIMATE CHANGE LEVY.
5.7.1 All prices as herein before referred to are exclusive of (i) any Value
Added Tax and/or (ii) a Climate Change Levy ("CCL") or any such
similar energy or carbon tax which may from time to time be applicable
to the sale and delivery of Coke and the gross amount (if any) payable
in connection with either or both of them shall become due and shall
be paid in like manner as is provided in relation to said prices.
6. CAPITAL INVESTMENT.
6.1 MAINTENANCE CAPITAL EXPENDITURES.
All maintenance and sustaining capital expenditures shall be the
responsibility of the owners of each of the respective businesses.
6.2 SPECIAL PROJECTS.
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In the event of an opportunity for a special project relating to the
[TEXT DELETED] between Conoco and UCAR (including, but not limited to,
[TEXT DELETED] and [TEXT DELETED]), the Management Committee
(referenced in Section 9 hereof) will explore the project and, together
with their respective parent corporations, Seller and Buyer will
determine on a case-by-case basis whether and how to fund the project
as well as how to measure and [TEXT DELETED] its [TEXT DELETED] and
[TEXT DELETED]. If only one of Conoco or UCAR proceeds with a special
project, including [TEXT DELETED] thereof, then such party will be
entitled to [TEXT DELETED] of the [TEXT DELETED] derived therefrom.
7. JOINT TECHNOLOGY DEVELOPMENT.
Seller and Buyer agree that, they will establish a [TEXT DELETED] and
[TEXT DELETED] program under which, from time to time, they will
identify and agree on [TEXT DELETED] with the intent of [TEXT DELETED]
and [TEXT DELETED] in the Coke to [TEXT DELETED]. Ownership rights to
such intellectual property developed under the program will be
determined and set forth in the program agreement(s). In the absence of
such an agreement Conoco would own any Coke related intellectual
property and UCAR would own any graphite electrode related intellectual
property. Any intellectual property developed jointly thereunder will
be used exclusively, to the extent legally and practicably possible,
for the benefit of UCAR and Conoco and shall not be transferred to
third parties. To the extent that any intellectual property is
developed under the program, the Parties agree to keep all such
information confidential in conformity with the Confidentiality
Agreement referred to in Section 14 below as it is to apply to this
Agreement.
8. TERM.
This Agreement shall be deemed to have commenced on and to have been
continuously in force since the Effective Date and shall continue in
force unless and until terminated in accordance with Section 12 below.
9. MANAGEMENT COMMITTEE.
A Management Committee shall be established consisting of two senior
managers from Buyer and one senior manager from each of Seller and
Conoco (UK) Limited. Each of Seller and Buyer shall notify the other of
the member it appoints to the Management Committee as well as any
changes thereto. Subcommittees shall be established as deemed
appropriate by the Management Committee. The
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Management Committee shall meet at least quarterly, and its
responsibilities shall include those outlined in Appendix A hereto.
10. OWNERSHIP OF ASSETS/EMPLOYMENT ISSUES.
Each of Seller and Buyer shall continue to own all of the assets owned
by it prior to the commencement of the Agreement, including, but not
limited to, all patents, trademarks, licenses, know-how and proprietary
technology. The ownership of assets acquired or developed through a
special project (see Section 6.2 hereof) or by joint development (see
Section 7 hereof) shall be determined on a case-by-case basis as
mutually decided and documented by the Management Committee. The
employees of each Party shall remain with their respective employers.
11. DISPUTE RESOLUTION.
11.1 Dispute resolution procedures shall be established whereby, together
with their respective parent corporations, each of Seller and Buyer
shall follow certain steps toward resolving disputes during the term
of this Agreement. At a minimum, such procedures shall require that
issues under dispute be presented to the Management Committee for
consideration and resolution. In the event that the Management
Committee is unable to resolve an issue within 30 days, the issue will
be presented to designated executives of each Party for resolution.
11.2 If the designated executives cannot resolve the issue within 30
days after being presented with it either Seller or Buyer may exercise
its right to terminate this Agreement under Section 12.1B hereof, and
any controversy or claim arising out of or relating to this Agreement
or any breach thereof, shall be settled by arbitration in New York, New
York, United States of America in accordance with the rules of the
American Arbitration Association, and judgment upon the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction
thereof.
11.3 In the event that a dispute arises under this Agreement
simultaneously with a dispute under the Humber Agreement and in
relation to an issue which is common to both of them then for the
purposes of determining that issue:
(a) they shall be treated as constituting one dispute only and
shall be referred to and settled by one arbitration accordingly
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(b) any conflict or inconsistency between the applicable New York law
and the applicable substantive law under the Humber Agreement
shall be resolved by according precedence to New York law to the
intent that it shall prevail over the applicable law under the
Humber Agreement to the extent necessary for resolving such
conflict or inconsistency.
12. EXIT PROVISIONS.
12.1 This Agreement may be terminated by written notice given by Seller or
Buyer to the other of them:
(a) on or at any time after January 1, 2007;
(b) at [TEXT DELETED] in the event that a [TEXT DELETED] cannot be
[TEXT DELETED] in compliance with the dispute resolution
procedures described in Section 11.1 hereof; or
(c) in the event that the Party to which notice is given
goes into liquidation (other than voluntary liquidation in a
solvent condition for the purposes of amalgamation or
reconstruction), enters into an arrangement or composition
with its creditors or has a receiver appointed of any of its
assets.
12.2 Termination pursuant to Section 12.1 above shall take effect as
follows:
12.2.1 In the case of notice given pursuant to Section 12.1A:
(a) if it is given by no later than September 30, at the end of the
calendar year in which it is given; or
(b) if it is given later than September 30, at the end of the
calendar year next following the year in which it is given;
12.2.2 In the case of a notice given pursuant to Section 12.1B, at the end of
the calendar year in which it is given; or
12.2.3 In the case of notice given pursuant to section 12.1C, forthwith upon
such notice being given or on such later date as may be specified in
that notice by the Party giving it.
Each such date is hereinafter referred to as "the Effective Termination Date".
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12.3 In the event of termination pursuant to Section 12.1A or 12.1B
above (but not Section 12.1C), Seller and Buyer shall enter into a
replacement agreement providing for the supply and purchase of Coke on
terms corresponding with the terms and provisions of this present
Agreement mutatis mutandis save that
(a) it shall be for a term of three years beginning immediately
after the Effective Termination Date;
(b) for the first, second and third years of such term, Seller shall
supply and Buyer shall purchase and receive approximately
[TEXT DELETED]%, [TEXT DELETED]% and [TEXT DELETED]%,
respectively, of the volume of each Grade supplied during the
year ending with the Effective Termination Date;
(c) the prices to be charged by Seller and paid by Buyer shall be on
a "[TEXT DELETED]" basis, meaning that such prices shall be no
[TEXT DELETED] than the [TEXT DELETED](excluding [TEXT DELETED])
[TEXT DELETED] by [TEXT DELETED] for the relevant Grade of Coke
among all of its Coke [TEXT DELETED] other than Buyer and
ascertained by reference to the prices applicable at the
commencement of the year in which delivery is effected of the
quantity of Coke for which the price is to be ascertained; and
(d) Sections 5.1, 5.3, 5.4, 5.5, 8, 12.1A, 12.3 and 12.4 and the
[TEXT DELETED] provisions in Section 5.2 of this present
Agreement shall not apply.
12.4 The net accumulated amount of the [TEXT DELETED] as of the Effective
Date of Termination shall be paid to the appropriate Party promptly
after such date.
13. MODIFICATION OF TERMS.
Seller and Buyer agree that certain terms of the Agreement may be
renegotiated in the event of certain material events provided, however,
that no amendment to or variation in this Agreement or any Appendix or
Annex hereto (other than changes to a Forecast as defined in 2.1) shall
be effective unless it is made or evidenced in writing and signed by
authorized representatives of the Parties.
14. CONFIDENTIALITY.
The Confidentiality Agreement made on [TEXT DELETED], by and between
Conoco Inc. and UCAR International Inc. and amended by two separate
letter agreements dated [TEXT DELETED], and [TEXT
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DELETED], respectively shall apply to and form part of this Agreement
as fully and effectually as if it were reproduced herein and set forth
in full but suitably modified to such extent as may be appropriate so
as to render it capable of applying to and affecting anything contained
or provided for in or arising from or contemplated by the terms and
provisions of this present Agreement. [LENGTH OF NEGOTIATIONS ARE
SENSITIVE AND NOT MATERIAL TO INVESTORS; UCAR DOESN'T WANT OTHER
STRATEGIC PARTIES TO SPECULATE AS TO THE LENGTH OF TIME DURING WHICH
THE PARTIES HAVE BEEN DISCUSSING TRANSACTIONS; THESE CONFID. AGTS HAVE
INVOLVED A VARIETY OF POSSIBLE TRANSACTIONS AND UCAR DOESN'T WANT
COMPETITORS TO KNOW THE DATES]
15. ENTIRE AGREEMENT; HEADINGS; COUNTERPARTS.
15.1 Except as otherwise provided in the Confidentiality Agreement
referred to in Section 14 above and in a certain letter agreement dated
February 21, 2001, relating to payment terms, this Agreement contains
the entire agreement between Seller and Buyer with respect to the
subject matter of this Agreement and supersedes all prior agreements
(including the 2000-2002 Graphite Coke Sales Agreement dated June 14,
2000), whether written or oral, between them with respect to the
subject matter of this Agreement.
15.2 Seller and Buyer explicitly acknowledge that, they are involved
in a number of [TEXT DELETED] regarding [TEXT DELETED], none of which
shall serve to modify this Agreement unless recorded in writing as
described in Section 13.
15.3 The headings in this Agreement are inserted for convenience of
reference only and will not be used to interpret or construe any
provision of this Agreement.
15.4 This Agreement may be executed in counterparts, each of which will
be deemed an original and all of which will constitute one and the same
instrument.
16. MISCELLANEOUS.
16.1 Seller's General Conditions of Sale set forth in Appendix D annexed
hereto are incorporated into and form part of this Agreement
(a) subject as provided under 16.2 below; and
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(b) so far as they are not otherwise in conflict or inconsistent
with the express terms of this present Agreement;
and for the purposes of those Conditions this Agreement shall
constitute "the Special Provisions" as therein referred to.
16.2 The said General Conditions of Sale shall apply and take effect subject
to modification as follows:
(a) Any references therein to "Product", and "this Agreement" shall
be read and construed as if they were references to Coke, and
this present Agreement respectively
(b) General Condition 7 shall be read and construed and shall take
effect in the like manner and to the like extent as if the events
and circumstances described and referred to in 7.1:
(i) included any interference with or disruption to or any
failure, limitation or cessation of Seller's existing or
contemplated sources of supply of Coke
(ii) were expressed to be applicable to Seller's supplier as
well as to Seller to the intent that any effect which any
of those events and circumstances may have on or in
relation to Seller's supplier and the production of Coke
shall be treated conclusively as having the like and
corresponding effect in relation to Seller and its sources
of supply of Coke
17. ADDRESSES ETC FOR NOTICES.
The address for each of Seller and Buyer shall be as set forth at the
beginning of the Agreement and other information for such Party, as
applicable at the date hereof, is:
For Seller: Attention: General Manager, Global Carbon Business
Conoco Inc.
600 North Dairy Ashford Road
Houston, Texas 77079
Facsimile: (281) 293-1641
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With a copy to:
Attention: General Counsel
Conoco Inc.
600 North Dairy Ashford Road
Houston, Texas 77079
Facsimile: (281) 293-3700
For Buyer: Attention Director of Purchasing
UCAR Carbon Company Inc.
3102 West End Avenue, Suite 1100
Nashville, Tennessee 37203
United States
Facsimile: (615) 760-7650
With a copy to:
Attention: General Counsel
UCAR International Inc.
3102 West End Avenue, Suite 1100
Nashville, Tennessee 37203
United States
Facsimile: (615) 760-7785
16.4 This Agreement shall be binding upon Seller and Buyer and their
respective successors and assigns and shall inure to the benefit of
Seller and Buyer and their respective successors and permitted assigns.
18. PUBLIC ANNOUNCEMENTS.
Neither Seller nor Buyer Party nor any affiliates, subsidiaries,
employees, officers, directors or agents of Seller or Buyer will make
any public statement with regard to this Agreement, including the fact
of its existence, the subject matter hereof or the transactions
contemplated hereby, without the prior written consent and agreement of
the other Party; provided, however, that each Party shall fully
cooperate and shall not delay in providing its reasonable consent in
the event that the other Party must make a public announcement in order
to comply with the disclosure requirements of U.S. and other applicable
securities laws.
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EFFECTIVE the day and year first before written by the duly authorized
representative of Seller and Buyer respectively:
CONOCO INC. UCAR CARBON COMPANY INC.
By: /s/ Jim W. Nokes By: /s/ John A. Toner
------------------------- -----------------------
Name: Jim W. Nokes Name: John A. Toner
Title: Executive Vice President Title: Director, Strategic
Refining, Marketing, Supply & Transportation Raw Materials and
Worldwide Puchasing
UCAR S.A.
By: /s/ John A. Toner
---------------------------
Name: John A. Toner
Title: Director, Strategic Raw
Materials and Worldwide
Purchasing
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