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EXHIBIT 10.13
BLANKET
PURCHASE ORDER
-------------- [LOGO] ABOVE NUMBER
MUST APPEAR ON
PACKAGES, B/L,
PACKING SLIPS
[MOYCO LOGO] AND INVOICES.
Moyco Technologies, Inc.
CORPORATE OFFICES 7 Ultralap / Abrasives Div. MOYCO UNION BROACH / Dental Division
200 commerce Drive - Montgomeryville - PA 18936 589 Davies Drive - York - PA 17402
(215) 855-4300 - FAX: (215) 362-3809 (717) 840-9335 - FAX:(717) 840-9347
REQUISITIONER VENDOR NO. P.O. DATE P.O. # DELIVERY DATE
Picardi 14090 2/24/97 10517 See Schedule
TO NANOPHASE TECHNOLOGIES SHIP TO MOYCO TECHNOLOGIES
453 Commerce Street 200 Commerce Drive
Burr Ridge, IL 60521 Montgomeryville, PA 18936
(Or as otherwise directed)
FOB: / / CONFIRMATION ONLY
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ITEM NO. QTY UNITS DESCRIPTION UNIT COST EXTENDED PRICE
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SEE ALL ATTACHED DOCUMENTS
WHICH DETAILS THIS PURCHASE ORDER
REFER TO ATTACHED PURCHASE PLAN
AND ORDER DESCRIPTION
POWER MATERIALS AND R&D USED FOR
MOYCO CMP SLURRIES PROVIDED ON
N/A N/A EXCLUSIVE BASIS $30,000,00
See Documents
Incorporated
ALL DOCUMENTS, ADDENDUMS AS WELL AS
TERMS AND CONDITINOS ON REVERSE SIDE
OF THIS PURCHASE ORDER ARE INCORPORATED
HEREIN
ALL DRAWSINGS, REFERENCE MATERIALS AND INTERRELATED IDEAS ASSOCIATED WITH THIS
PROJECT ARE FOR THE SOLE AND EXCLUSIVE USE OF MOYCO INDUSTRIES INC, AND CANNOT
BE USED BY OTHERS UNDER ANY CIRCUMSTANCES WHATSOEVER WITHOUT THE WRITTEN CONSENT OF MOYCO TOTAL $30,000,000
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NO PARTIAL SHIPMENTS WITHOUT PRIOR AUTHORIZATION DO NOT SHIP FREIGHT C.O.D.
TRAFFIC MANAGER, PLEASE NOTE: SUBJECT TO THE TERMS AND CONDITIONS ON THE BACK HEREOF
WHICH ARE INCORPORATED AND MADE A PART THEREOF.
MOYCO TECHNOLOGIES, INC.
USE SINGLE FACE PALLETS --
DO NOT DOUBLE TIER.
/s/ Jerome J. Lipkin Executive Vice President
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/ / PURCHASING MGR. / / SR BUYER
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WHEN SHIPPING CHARGES ARE NOT PREPAID OUR ROUTING MUST BE OBSERVED, OTHERWISE DIFFERENCE IN TRANSPORTAION CHARGES WILL BE
CHARGED TO SUPPLIER WHEN NO ROUTING IS SPECIFIED. SHIP CHEAPEST STORE DOOR DELIVERY.
Page 1 of 5
No Order will be valid unless signed.
ORIGINAL
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MOYCO/NANOPHASE 5 YEAR PURCHASE AND DISTRIBUTION AGREEMENT
With reference to the Marketing Agreement between Nanophase Technologies
Corporation ("NTC") and Moyco Technologies, Incorporated ("Moyco"), dated
August 29, 1996, NTC and Moyco hereby agree to the following:
1. NTC agrees to supply to Moyco, on an exclusive basis and for a period of
five years from the date last written below ("Effective Date"), NTC Nanotek
Aluminum Oxide, and Cerium Oxide, on a continuing basis, for use by Moyco in
the production of proprietary formulations for the use in chemical mechanical
planarization (CMP) of metal and di-electric layers in the production of
semiconductor devices ("Product") as per the terms of the Moyco 5 year purchase
order.
2. THE PARTIES AGREE TO NEGOTIATE IN GOOD FAITH FOR THE DEVELOPMENT OF
ADDITIONAL MATERIALS FOR EXCLUSIVE SALE TO MOYCO, IN THE FUTURE, FOR CMP
MARKETS. MOYCO RETAINS THE RIGHT OF FIRST REFUSAL REGARDING NEW NTC PRODUCTS
DEVELOPED AND APPLICABLE TO CMP (SUBJECT TO THE AFOREMENTIONED GOOD FAITH
NEGOTIATIONS). A RESEARCH AND DEVELOPMENT FEE OF $100,000 OVER A 2 YEARS
PERIOD WILL BE PAID TO NTC AS PER THE TERMS AND CONDITIONS OF THE MOYCO 5 YEAR
PURCHASE ORDER.
3. Moyco agrees that upon the Effective Date, Moyco shall commence the
execution of deliveries of Nanophase products as per the terms of the Moyco 5
year purchase order from NTC. (refer to Schedule1/Delivery Objectives*).
4. Moyco and NTC agree that, should Moyco fail to comply with the terms and
conditions of the Moyco five year purchase order, this Purchase and
Distribution Agreement may be terminated by NTC upon thirty days notice. In
the event that NTC terminates this Agreement and Purchase Order, Moyco shall
maintain all rights to place orders and purchase the materials indicated herein
on a non-exclusive basis for a period of nine (9) months.
5. Moyco and NTC agree that should NTC fail to meet Moyco specifications,
terms, delivery, and conditions, that this Purchase and Distribution Agreement
may be terminated by Moyco upon 30 days written notice.
6. NTC futher commits that for all product orders drawn in calender years 1997
and 1998 Moyco shall receive a 3% discount from the prices below; thereafter, on
all orders exceeding the contract annual minimum requirements, Moyco shall
receive a 5% discount from the prices below.
7. Pricing for the sale of the Product by NTC to Moyco shall be determined
soley by NTC. NTC commits that through 12/31/98: the price of Nanotek Aluminum
Oxide Product to Moyco shall not exceed $55 per kilogram, and, the price of
Nanotek Cerium Oxide shall not exceed $70.00 per kilogram, excepting that
through 12/31/2000, the price to Moyco for any order of NTC Product shall not
increase by more than the actual increase, if any, in the cost to NTC for
feedstock(s) used by NTC for production of such order.
8. The Moyco 5 Year Purchase Order is for ($USD) 30,000,000.00 over a 5 year
period; and, is subject to standard Moyco purchsae order terms and conditions.
*Schedule 1/Delivery Objectives [NTC shipment rate to Moyco (tons)]:
1097 2097 3097 4097 1997 1998 1999 2000 2001
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Aluminum Oxide (1) (2) (6) (14) (23) (50) (80) (140) (200)
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Cerium Oxide (0.1) (0.4) (2.0) (2.5) (4) (8) (16) (20) (30)
Cumulative Objective for 1997: (USD) $1,518,150.00
Agreed:
NANOPHASE TECHNOLOGIES CORPORATION MOYCO TECHNOLOGIES, INCORPORATED
BY: /S/ Robert W. Cross BY: /S/ Marvin E. Sternberg
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ROBERT W. CROSS PRESIDENT - NTC MARVIN E. STERNBERG, PRESIDENT
MOYCO
dATE: 2/27/97 DATE: 2/25/97
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ITEM QTY UNITS DESCRIPTION UNIT COST
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N/A N/A N/A NANOPHASE 5 Year Purchase Order* $30,000,000.00
* refer to Moyco/Nanophase 5 Year Purchase
and Distribution Agreement attached and in-
corporated herein
Payment Terms: 2% - 15 days from Invoice Date; Net 10
R&D PAYMENT TERMS: NET % ON 3/31/97 INVOICE; $5,000.00/MONTH
ON 1/31/98 INVOICE
MOYCO IMMDEIDATE DRAW OFF OF THE PURCHASE ORDER AS FOLLOWS:
ITEM QTY UNITS DESCRIPTION UNIT COST
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POWDER 1 TONS NTC Nanotek Aluminum Oixde $50,000.00
(Target Delivery Date** 3/22/97)
POWDER 0.5 TONS NTC Cerium Oxide $31,815.00
(Target Delivery Date** 3/22/97)
R&D 1 N/A CERIA DEVELOPMENT R&D FEE $50,000.00
(Invoice Date: 3/31/97)
for work performed through 3/31/97
POWDER 2 TONS NTC Nanotek Aluminum Oxide $100,000.00
(Target Delivery Date** 5/30/97)
POWDER 0.5 TONS NTC Cerium Oxide $31,815.00
(Target Delivery Date** 5/30/97)
R&D 1 N/A 1998 R&D FEES $50,000.00
(Invoice Date 1/31/98)
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MOYCO DRAW OBJECTIVES: 1997 CALENDAR QUARTER 3 AND QUARTER 4
POWDER 6 TONS NTC Nanotek Alumium Oxide $300,000.00
(Target Delivery Date**: 1/30/97)
POWDER 1.5 TONS NTC Cerium Oxide $95,445.00
(Target Delivery Date**: 8/30/97)
POWDER 14 TONS NTC Nanotek Alumium Oxide $700,000.00
(Target Delivery Date**: 11/30/97)
POWDER 2 TONS NTC Cerium Oxide $127,260.00
(Target Delivery Date**: 11/30/97)
** within 10 day window Total Calender Year 1997 DRAW OBJECTIVE: $1,586,335
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30,000,000.00 Cost Break-Out:
*Research and Development Fee of $100,000.00 $ 100,000.00
over a two (2) year period. (Item 2 of the Moyco/
Nanophase 5 Year Purchase and Distribution Agree-
ment.
*NTC Aluminum Oxide as per the Moyco/Nano- $24,650,000.00
phase 5 year Purchase and Distribution Agreement
*NTC Cerium Oxide as per the Moyco/Nano- $ 5,250,000.00
phase 5 year Purchase and Distribution Agreement
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NOTATIONS AND AMMENDMENTS:
It is hereby formally agreed that this Purchase Order is subject to standard
Moyco Terms and Conditions of Sale contained on the reverse side of this
purchase Order, as well as all other incorporated documents.
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MOYCO INDUSTRIES INC.
TERMS AND CONDITIONS OF PURCHASE
1. ACCEPTANCE: This purchase order constitutes a binding contract on the
terms set forth herein when it is accepted by Seller either by
acknowledgment or by commencement of performance. No addition, change or
modification of this purchase order shall be binding unless made in writing
and signed by an authorized representative of Buyer.
2. WARRANTY: Seller expressly warrants that all articles, assemblies, parts
and materials delivered under this purchase order will be free from
defects in labor, materials or fabrication. This warranty shall run to
Buyer, its successors, assigns and customers. All warranties shall be
construed as conditions as well as warranties and shall not be deemed to be
exclusive.
3. PACKING: All items shall be packed by Seller in suitable containers
for protection in shipment and storage. All highly polished, highly
finished or precision parts are to be properly greased and packed in
containers as protection against deterioration.
4. PATENT INDEMNITY: Seller agrees to idemnify and hold harmless the Buyer
and its customers against all claims, demands and liability for actual
or alleged infringement of any U.S. or foreign patents, trade-marks or
similar right by the materials or articles delivered by the Seller, and the
Seller will at its own expense defend any action, suit or claim in which
such infringement is alleged, provided Seller is duly notified as to suits
or claims against Buyer, and provided further that Seller's idemnity as to
use shall not apply to articles delivered made to Buyer's drawings or
design.
5. COPYRIGHTS: Seller agrees to grant to Buyer and to the Government a
royalty-free right to reproduce, use and disclose any and all
copyrighted or coyrightable matter required to be delivered by Seller to
Buyer under this purchase order. However, it is not deemed to grant a
license under any patent now or hereafter issued or employ any right to
reproduce anything else called for under this purchase order.
6. MATERIALS FURNISHED: When Buyer furnishes materials to Seller to be worked
upon, Seller will be responsible for the care and safe-guarding of
materials furnished by Buyer. All such materials not used shall be
disposed of as directed by Buyer.
7. TOOLS AND DRAWINGS: Seller agrees that it will use any designs, tools,
patents, drawings, Information and equipment furnished by Buyer only
in the production of the articles called for in the purchase order and not
otherwise unless written consent has been granted by an authorized
representative of the Buyer. Buyer does not warrant the accuracy of tools
and fixtures furnished and all work must be in strict accordance with
specifications. Upon completion or termination, all items shall be
returned to Buyer immediately.
8. LABOR DISPUTES: Whenever an actual or potential labor dispute is delaying
or threatens to delay performance of this contract, Seller will
immediately give notice thereof to the Buyer and further if this order is a
Government contract the Seller shall immediately give notice also to the
nearest Government Department concerned. Such notice shall include all
relevant information with respect to such dispute.
9. DELAYS: Buyer reserves the right to cancel this order in the event
shipments are not made within specified time. Seller willl not, however,
be liable for damages occassioned by delays in delivery due to causes beyond
Seller's control and without his fault or negligence, provided Seller
properly notifies Buyer as soon as such delay becomes evident.
11. TERMINATION (NON-GOVERNMENT ORDERS): Buyer may, at its option, terminate
this purchase order in whole or in part at any time by written or
telegraphic notice to Seller. Upon termination in whole or in part of the
work under this purchase order by Buyer, the Seller will stop work
immediately, notify sub contractors to stop work and protect property in
Seller's possession in which Buyer has or may acquire an interest. If the
parties cannot agree by negotiation within a reasonable time upon the
amount of fair compensation to the Seller of such termination, Buyer will
pay Seller without duplication:
(a) The contract price for articles which have been completed.
12. CONFIDENTIAL: Seller agrees to be responsible within its control for the
safeguarding of all secret, confidential or restricted matters in
connection with the work to be performed by the Seller and to require a
similar agreement of third parties to whom any work in this order may be
alloted.
13. COMPLIANCE WITH LAWS: Seller agrees that in the performance of this
contract that it will comply with all applicable Federal, State and
local laws and executive orders and regulations.
16. SUB-CONTRACTING: The Seller may not sub-contract in whole or in part
any portion of this purchase order, except with prior written consent
of the Buyer.
17. INSURANCE: Seller agrees to be responsible for any bodily injury or
property damage resulting from Seller's performance under this purchase
order, and Seller warrants that adequate insurance is being carried to
cover such liabilities. Seller agrees to carry fire and extended coverage
insurance and be responsible for any of Buyer's property while in Seller's
possession. Seller agrees to maintain Buyer's property in good condition
and not to dispose of said property except in accordance with Buyer's
instructions.
20. PRICE QUALITY: If price is not stated on this order, Seller shall
invoice at lowest prevailing market price. Material is subject to MOYCO's
inspection, and approval within a reasonable time after delivery. If
specifications are not met, material may be returned at Seller's expense
and risk for all damages incidental to the rejection Payment shall not
constitute an acceptance of the material nor impair MOYCO's right to
inspect or any of its remedies.
NOTATIONS:
1.) Items 10, 14, 15, 18, 19, and 21 are stricken from this Purchase
Order.
2.) Item 11, Sections b and c are stricken from this Purchase Order.
3.) Item 11, Section a (Buyer's Right of Termination) shall apply
equally to the Seller subject to the terms stated in Item 4 of
Moyco Nanophase 5 Year Purchase and Distribution Agreement.
AGREED:
/s/ Robert Cross /s/ Marvin E. Sternberg
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Mr. Robert Cross-NTC Mr. Marvin E. Sternberg-MOYCO
2-27-97 2-25-97
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DATE DATE
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ADDENDUM TO MOYCO/NANOPHASE 5 YEAR PURCHASE AND
DISTRIBUTION AGREEMENT
Except as modified by the Moyco/Nanophase Purchase and Distribution Agreement
effective as of February 27, 1997, the Marketing Agreement dated August 28,
1996 shall remain in effect. In particular, and without limitation, we confirm
that:
For as long as this agreement remains in effect, or unless the parties
otherwise agree in writing, NTC will not directly or indirectly provide or sell
any of the Products to anyone other than Moyco knowingly for use in the
Applications.
For as long as this agreement remains in effect, or unless the parties
otherwise agree in writing, Moyco will not directly or indirectly sell or
provide formulations containing aluminum oxide or cerium dioxide other than the
Products knowingly for use in the Applications.
AGREED:
Nanophase Technologies Corporation Moyco Technologies, Incorporated
By: /s/ Donald J. Freed By: [SIG]
-------------------------------- ---------------------------
Donald J. Freed
Its: Vice President Its: Vice President
--------------------------
Date: March 6, 1997 Date: 3/6/97
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MARKETING AGREEMENT
Parties: Nanophase Technologies Corporation ("NTC")
453 Commerce Street
Burr Ridge, Illinois 60521
Moyco Technologies, Incorporated ("Moyco")
200 Commerce Drive
Montgomeryville, Pennsylvania 10036
Appointment: NTC hereby appoints, and Moyco hereby accepts appointment
as NTC's globally-exclusive customer of the Products for
the Applications defined below.
Products: NTC NanoTek(TM) Aluminum Oxide, in any form as
determined by NTC and Moyco to be required for use by
Moyco's customers in the Applications defined below (the
Products). From time to time, upon mutual agreement
between NTC and Moyco, additional applications may be
added to this agreement.
Applications: Chemical mechanical planation (CMP) of metal layers in the
production of semiconductor devices (the Applications).
From time to time, upon mutual agreement between NTC and
Moyco, additional applications may be added to this
agreement.
Marketing Objectives: To achieve and maintain a dominant market position for the
Products based upon superior performance of the Products
within the Applications defined above.
Colabrative The parties agree that the primary role of NTC under this
Relationship: agreement shall be to provide Products and related
technology support to Moyco, and the primary role of Moyco
shall be to develop and manufacture formulations for the
Applications incorporating the Products, perform the
marketing functions, and provide the related customer
technical support. Nonetheless, the parties agree to
actively confer and collaborate with each other concerning
significant issues and activities relating to achievement
of the marketing objectives.
Responsibilities Establish and maintain appropriate production and
of NTC: handling facilities to apply the Products on schedules
and in quantities adequate to support the marketing
objectives.
Use its best efforts to achieve and maintain quality
(including elimination of aluminum metal contaminants),
technological superiority, and competitive costs of the
Products. Secure and utilize such chemical analysis
equipment as may be required for this purpose.
Actively collaborate with Moyco in efforts to further
develop and enhance the Products in support of the
marketing objectives. This shall include further
refinement of particle size distribution. Secure and
utilize such electron microscopy equipment as may be
required for this purpose.
Actively provide technical and marketing assistance to
Moyco in support of the marketing objectives. Employ a
dedicated abrasive scientist on the NTC staff. Support
shall include but not be limited to:
Customer technical presentations.
Customer technical support activities.
Hosting visits by Moyco customer and prospective
customers to NTC facilities .
On-going strategic patent review.
Enforce all patents relevant to NANOTEK Aluminum Oxide.
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Responsibilities Use the best efforts to achieve and maintain quality,
of Moyco: technological superiority, and competitive costs of its
formulations for the Applications.
Use its best efforts to diligently market and promote its
formulations containing the Products for Applications in
support of the marketing objectives.
Provide NTC with an initial and rolling schedule of confirmed
or planned presentations, samplings and evaluations.
On-going and on a current basis, provide NTC with empirical
feedback from presentations, samplings and evaluations that
are arranged or conducted by Moyco, and otherwise provide NTC
with all information available to Moyco concerning Product
performance, and concerning market requirements relating to
Product performance.
Secure and utilize such equipment and facilities as may be
required to demonstrate and test formulations for the
Applications and to quantify performance. This shall include
but not be limited to a CMP metal polishing tool, meteorology
equipment and a classroom.
Employ technical support staff experienced in CMP polishing
and expert in the underlying sciences relevant to the
Application.
Upon execution of this agreement, order and maintain a buffer
inventory of no less than 750 pounds of the Products. This
quantity shall be above and beyond Moyco's needs for
development, sampling, and customer orders. Upon securing
customer orders for production purposes, Moyco shall maintain
a buffer inventory of the Products of no less than 750 pounds
or the total of estimated customer requirements for two
months, whichever is greater.
Provide NTC monthly with a rolling six-month forecast and
every six months provide NTC with a rolling three-year
forecast, of Moyco's Product requirements for the Applications
defined above.
Mutual For as long as the agreement remains in effect, or unless
the parties otherwise agree in writing, NTC will not directly
or indirectly provide or sell any of the Products to anyone
other than Moyco knowingly for use in the Applications.
Exclusivity: For as long as this agreement remains in effect, or unless
the parties otherwise agree in writing, Moyco will not
directly or indirectly sell or provide formulations
containing aluminum oxide other than the Products
knowingly for use in the Applications.
Pricing: Pricing for the sale of Products by NTC to
Moyco shall be determined solely by NTC. NTC commits that
through 12/31/97 the price to Moyco for NanoTek(TM) Aluminum
Oxide shall not exceed $25 per pound for orders in excess of
2000 pounds with a defined delivery schedule.
When Moyco's purchases of the Products reach an average of
2000 pounds per month over a four month period, NTC shall
rebate that portion of the price paid for purchases since
1/1/96 which exceeded $25 per pound. The rebate shall be in
the form of six pounds of Products to be delivered for each
five pounds of product ordered.
Pricing for the sale of Products by Moyco to Moyco's
customers shall be determined solely by Moyco.
Shipping: FOB NTC facility.
Disclaimers: NTC assumes no risk or liability involved in the use of the
Products, including without limitation liability with regard
to third-party patent claims.
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Term of One year, automatic renewal unless terminated as provided below.
Agreement:
Termination without cause: six-month notice.
Termination for failure to deliver, non-payment, or for material
breech of this agreement: Option of non-defaulting party to
terminate if failure not cured within 30 days following notice
of default.
Notices: All notices required or desired to be given hereunder shall be
given by hand delivery, or by registered or certified mail,
return receipt requested, to the addresses listed above, and
shall be effective upon receipt.
Proprietary The parties agree to the terms of the confidentiality agreement
Rights: executed on 2/1/96.
The sale of Products by NTC to Moyco shall not constitute a
license from NTC to Moyco.
Independent Each party is an independent contractor. Neither party is the
Contractors: agent of the other, and neither shall have authority
to bind the other.
Jurisdiction: All disputes arising out of this Agreement shall be decided by a
competent court having jurisdiction over the defendant in
accordance with the laws of the state of Illinois applicable
to contracts made and to be performed in Illinois.
Prior This agreement supersedes the prior agreement of the parties
Agreements: dated 2/1/96.
AGREED:
NANOPHASE TECHNOLOGIES CORPORATION MOYCO TECHNOLOGIES, INCORPORATED
By: /s/ Robert W. Cross By: /s/ Marvin Sternberg
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Robert W. Cross, President Marvin Sternberg, President
Date: 29 August 1996 Date: August 29, 1996
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