Exhibit 10.8
AMENDED AND RESTATED
PRODUCT MARKETING AND SALES AGREEMENT
THIS AMENDED AND RESTATED PRODUCT MARKETING AND SALES AGREEMENT (this
"Agreement") is made as of the 13th day of June, 2001, by and between Alcor
Chemie Vertriebs AG, a corporation organized under the laws of Switzerland,
acting on behalf of itself and its Affiliates (individually and collectively,
"Alcor Vertriebs"), Alcor Chemie AG, a corporation organized under the laws of
Switzerland, acting on behalf of itself and its Affiliates (individually and
collectively, "Alcor Chemie"), NOOFOT GmbH, a limited liability company
organized under the laws of Switzerland, acting on behalf of itself and its
Affiliates (individually and collectively, "Noofot") together with Alcor
Vertriebs and Alcor Chemie, "Alcor") and Ethyl Services GmbH, a limited
liability company organized under the laws of Switzerland, acting on behalf of
itself and its Affiliates (collectively, "Ethyl").
WHEREAS, Alcor and Ethyl each desire to amend and restate the terms of
that certain Product Marketing and Sales Agreement, dated as of January 1, 2000,
by and among Alcor Vertriebs, Alcor Chemie and Ethyl (the "Product Marketing and
Sales Agreement"); and to add Noofot as a Party to the Product Marketing and
Sales Agreement.
WHEREAS, governmental authorities in countries around the world have
promulgated laws and regulations which have effectively banned or severely
limited the amount of lead antiknock compounds which can be used in motor fuels
for health, safety and environmental reasons;
WHEREAS, said governmental authorities have continued to take actions
and plan to take additional measures in the future to further reduce or
eliminate the amount of AK currently used in motor fuels;
WHEREAS, because these actions have accelerated the reduction of demand
for AK, the product life of AK has been significantly reduced as a useful
additive in motor fuel;
WHEREAS, as a result of these actions and other factors, it has and
will continue to become increasingly more expensive and inefficient to market
and to sell the ever decreasing amount of AK throughout the world as this
product reaches the end of its life cycle;
WHEREAS, because of these and other factors, Noofot has entered into
that certain Marketing, Supply and Service Agreement with Veritel Chemicals
B.V., a company organized under the laws of The Netherlands ("Veritel"), and
General Innovative Investments N.V., a company organized under the laws of the
Netherlands Antilles ("GII"), as well as that certain Purchase and Sales
Commission Agreement with Veritel such agreement relating to the supply and
provision of services in the marketing and sale of AK under certain terms and
conditions;
WHEREAS, Noofot has agreed to assign to Alcor in its entirety the
Marketing, Supply and Service Agreement, the Purchase and Sales Commission
Agreement, and all other agreements that Noofot has entered into effective as of
June 13, 2001;
WHEREAS, Alcor and Ethyl believe that significant cost savings and
efficiencies and health, safety and environmental benefits can be realized by
entering into this Agreement to
market and promote the sale and safe distribution of AK in certain areas of
the world as the demand for AK continues to decline;
NOW, THEREFORE, in consideration of the mutual covenants and promises
contained herein, the Parties agree as follows:
1. Definitions
------------
As used in this Agreement, the following terms shall have the following
meanings:
Affiliates of any Person shall mean any entity controlling, controlled
by or under common control with such Person and in addition if such
Person is a Party, any entity which succeeds to that portion of the
business or ownership of the assets of that Party to which this
Agreement pertains.
Agreement shall mean this Amended and Restated Product Marketing and
Sales Agreement.
Agreement Activities shall mean all of the activities performed by the
Parties pursuant to the terms of this Agreement. It is specifically
agreed that the manufacture of Product is not one of the Agreement
Activities.
Agreement Proceeds shall mean the amount determined pursuant to
Schedule B to this Agreement.
Alcor shall mean individually and collectively Alcor Vertriebs and
Alcor Chemie and their respective Affiliates.
Bulk Distribution Agreement shall mean the Agreement for Bulk
Transportation between The Associated Octel Company Limited and Ethyl
Corporation, dated as of March 25, 1994, as amended.
Bulk Distribution Services shall mean the bulk distribution services
provided by Ethyl described in Paragraph 9(a) of this Agreement.
Change of Control shall mean:
(i) the acquisition by an independent third party(ies) of
more than 50 percent of the outstanding voting stock
of Octel Corp, The Associated Octel Company Limited,
OBO Adler Company Limited, Alcor, Noofot, Ethyl
Corporation or Ethyl but excluding the formation of a
new holding company and inter-group reorganizations
so long as there is no change in the ultimate control
of the applicable company listed above; or
(ii) the acquisition by an independent third party(ies) of
substantially all the AK business assets of Octel Corp.,
The Associated Octel Company Limited, OBO Adler Company
Limited, Alcor, Noofot, Ethyl Corporation or Ethyl; or
- 2 -
(iii) the assignment to an independent third party(ies) by
either Party of substantially all of their rights or
obligations under this Agreement.
Notwithstanding the above, Change of Control shall not mean any
internal reorganization of one or more of Octel Corp., The Associated
Octel Company Limited, OBO Adler Company Limited, Alcor, Noofot, Ethyl
or Ethyl Corporation and their respective Affiliates, including any
spin-off or split-off of assets or businesses to the shareholders of
any of the aforementioned Persons or the purchase of stock, assets or
businesses conducted by any of the aforementioned Persons by any person
or group which owns 20 percent or more of the voting stock of such
Person as of the date of this Agreement.
Contract Year shall mean the period beginning on January 1, 2000 and
ending on December 31, 2000 and each calendar year thereafter during
the term of this Agreement and any extension thereof.
Council shall mean the Strategic Council.
Effective Date shall mean January 1, 2000.
Embargoed Countries shall mean any country or countries that is
subject to sanctions imposed by the United States government pursuant
to the Trading With the Enemy Act (50 App. U.S.C.A.ss.1) or The
International Emergency Economic Powers Act (50 U.S.C.A.ss.1701).
Ethyl shall mean Ethyl Service GmbH and its Affiliates.
Ethyl Corporation shall mean Ethyl Corporation and its Affiliates.
GII shall mean General Innovative Investments, a company organized
under the laws of The Netherlands Antilles and its Affiliates.
EEA shall mean these countries that are from time to time members of
the European Economic Area.
LIBOR shall mean the London interbank offered rate in effect from time
to time as published in The Financial Times on the date in question or,
if not published on such date, on the immediately preceding date on
which it was published.
Marketing, Supply and Service Agreement shall mean .
Noofot shall mean Noofot GmbH and its Affiliates.
North America shall mean the countries of Canada and the United States.
Octel Corp. shall mean Octel Corp. and its Affiliates.
Octel Guaranty shall mean .
- 3 -
Parties or Party shall mean collectively and individually each of Alcor
and Ethyl.
Party Services shall mean all of the services performed by the Parties
pursuant to the terms of this Agreement.
Person shall mean an individual, a partnership, a corporation, a
company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a governmental entity (or
any department, agency or political subdivision thereof.)
Product shall mean lead alkyl antiknock compounds ("AK") made available
for sale, marketed and/or sold, directly or indirectly, to customers
for use in the Territory by Alcor and/or Noofot and any new or modified
lead alkyl products made available for sale, marketed and/or sold,
directly or indirectly, by Alcor and/or Noofot during the term of this
Agreement or any extensions thereof.
Purchase and Sales Commission Agreement shall mean .
Services shall mean the Party Services.
Sintez shall mean the Sintez Joint Stock Company, a joint stock company
organized under the laws of the Russian Federation and its Affiliates.
Sintez Guaranty shall mean .
Territory shall mean all of the countries and regions of the world,
other than, and specifically excluding North America and the Embargoed
Countries.
United States shall mean the fifty states of the United States of
America, the District of Columbia and all possessions and territories
of the United States of America, including Puerto Rico and the United
States Virgin Islands.
Veritel shall mean Veritel Chemicals B.V. a company organized under the
laws of The Netherlands and its Affiliates.
Wholesale Price shall mean the cost for all Product sold in the
Territory which shall be calculated by using the applicable pricing
formula set forth in Schedule G to this Agreement. The Parties
acknowledge that the applicable prices set forth in Schedule G to this
Agreement were negotiated at arms length.
Working Capital shall mean the working capital as determined in
accordance with Schedule D to this Agreement.
- 4 -
2. Purpose of the Agreement
The purpose of this Agreement is to establish a marketing, distribution
and service arrangement for direct and indirect sales of Product by the Parties
to customers for use in the Territory. Alcor and Ethyl each agree, and shall
cause each of their respective Affiliates to agree, to exclusively market and
sell Product to customers for use in the Territory pursuant to the terms of this
Agreement. To support this marketing, distribution and service arrangement, each
Party will provide various goods and services to the other Party. GII and/or
Veritel will provide certain services to Alcor pursuant to the Marketing, Supply
and Service Agreement and the Purchase and Sales Commission Agreement as more
specifically set forth in such agreements. The rights conferred by this
Agreement are strictly contractual in nature, it being expressly understood and
agreed that neither Party shall by reason of this Agreement be deemed to have
entered into a partnership or to have acquired directly or indirectly any stock,
share capital, equity or other interest in the other Party. It is further
understood and agreed that the Agreement Activities are limited strictly and
exclusively to the Territory and shall not extend beyond the Territory. Unless
earlier terminated pursuant to this Agreement, this marketing, distribution and
service arrangement shall continue so long as sales of Product in the Territory
remain economically feasible. The proceeds generated from the sale of Product
resulting from deliveries made to customers in the EEA by Alcor and Ethyl on or
after June 13, 2001 shall be calculated and accounted for using the same basis
as set forth in Schedule B and Schedule D and shall be included in determining
Agreement proceeds pursuant to Schedule B of this Agreement and such deliveries
of Product to customers in the EEA shall be treated as if made pursuant to the
terms of this Agreement.
3. Payment for Services
a. The Parties hereby acknowledge and agree that on April 19,
2000, Ethyl paid to Alcor the sum of as a prepaid cost to
Alcor for providing its Party Services pursuant to this
Agreement.
b. The Parties further acknowledge and agree that Ethyl paid to
Alcor interest in the aggregate amount of on the prepaid
service cost of for the period commencing on January 1, 2000
until April 18, 2000.
c. Ethyl shall pay to Alcor the sum of by wire transfer of
immediately available funds to an account designated by Alcor
or one of its Affiliates within three days after the execution
of this Agreement for payment for services described in this
Agreement. For the avoidance of doubt, such payment shall not
constitute a cash advance from Ethyl to Alcor pursuant to
Schedule D of this Agreement and no portion of such payment
shall be refundable or returnable to Ethyl pursuant to this
Agreement.
4. Territory
This Agreement and its terms shall only apply to activities within the
Territory. Neither Party shall have any rights, responsibilities or obligations
to the other Party under this
- 5 -
Agreement for activities relating to the manufacture, distribution, marketing
and sale of Product to:
a. customers outside the Territory; and
b. customers inside the Territory prior to the Effective Date of this
Agreement.
c. customers inside the EEA prior to June 13, 2001.
d. customers inside Russia for Product sourced from Sintez after
June 13, 2001.
5. Representation and Warranties
a. Alcor represents and specifically warrants to Ethyl as partial
consideration for and as an inducement for Ethyl to enter into
this Agreement, to the best of its actual knowledge, that the
statements contained in this Paragraph 5(a) are correct and
complete as of June 13, 2001 and as of the date this Agreement
is signed by each of the Parties. For purposes of this
paragraph of the Agreement and this paragraph only, Territory
shall mean all countries and regions of the world excluding
the United States and Russia.
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
- 6 -
b. Each Party represents and specifically warrants to the other Party
as partial consideration for and as an inducement for such Party to
enter into this Agreement that the statements contained in this
Paragraph 5(b) are correct and complete as of the date this
Agreement is signed by each of the Parties.
(i) Such Party is a company duly organized and validly existing
under the laws of the jurisdiction of its formation.
(ii) Such Party has full power and authority to enter into and
deliver this Agreement and perform its obligations hereunder.
This Agreement does not (i) require the consent of any third
Person and/or (ii) constitute a material breach or default or
permit termination, modification or acceleration of any
contract or agreement. This Agreement constitutes the valid
and legally binding obligations of such Party, enforceable in
accordance with its terms.
6. Operations
-----------
Each Party shall independently provide its Party Services and be solely
responsible for the manner in which they are carried out.
7. The Strategic Council
---------------------
The Party Services will be overseen by the Council composed of six
members. Three members shall be appointed at the sole discretion of each Party.
The actions of the Council shall be governed as provided in Schedule A to this
Agreement.
8. Party Services
--------------
Party Services provided by each Party hereunder shall be directed by a
manager who will be subject to oversight by the Council (the "Manager"). The
Manager shall be selected by Alcor. Alcor will consult with the Council about
the selection of the Manager but shall retain the ultimate right to make such
selection. The Manager shall be responsible for directing the performance of
Party Services. Employees providing Services under this Paragraph 8 of the
Agreement shall remain employees of the respective Parties. The Parties shall be
reimbursed in accordance with Schedule C to this Agreement for the cost
associated with the provision of such Services. In addition to providing those
Services, the Parties shall provide upon request from the
- 7 -
Manager and approval by the Council, consulting and other services in support of
this Agreement.
The Manager shall prepare for review at each scheduled Council meeting
a report on the sales and marketing activities within the Territory, including
financial results for the period as well as any significant issues affecting
such activities. The format and content of such report shall be subject to
approval by the Council.
9. Product
-------
Except as otherwise approved by the Council, all Product marketed
pursuant to this Agreement shall be provided by one or more of Veritel, Alcor or
its Affiliates. Alcor, its Affiliates and Veritel, shall supply all of the
Product requirements for sale to customers for use in the Territory during the
term of, or any extension of, this Agreement. The Wholesale Price shall be
determined in accordance with Schedule G to this Agreement as of the date of
timely invoice to customers.
10. Distribution Services
---------------------
Ethyl and Alcor shall jointly review the costs of distribution by bulk
and non-bulk with the objective of minimizing the overall distribution costs
within the Territory, and shall cooperate with each other to reduce the costs of
bulk and non-bulk distribution (including maintenance, decontamination and
disposal of distribution equipment).
a. Bulk Distribution. Alcor and Ethyl agree that the Bulk
Distribution Services required to deliver Product to customers
in the Territory shall be provided under the Bulk Distribution
Agreement for as long as such bulk distribution services are
utilized. Except as otherwise provided in the Bulk
Distribution Agreement, all equipment used to provide these
services shall remain the property of Ethyl or one of its
Affiliates and Ethyl shall be responsible for properly
maintaining such equipment as well as decontaminating and
disposing of such equipment as required by law under the terms
of the Bulk Distribution Agreement when no longer suitable for
use.
b. Non-Bulk Distribution Services. Alcor and Ethyl agree that the
Non-Bulk Distribution Services required to deliver Product to
customers in the Territory shall be provided on terms set forth
in Schedule C to this Agreement. All equipment and facilities
used to provide these services shall remain the property of
the Party owning the equipment. Each Party shall be responsible
for decontaminating and disposing of such equipment as required
by law when no longer suitable for use, except where such
equipment is purchased or leased after the Effective Date for
exclusive use in the Territory by Alcor, in which case any required
decontamination and disposal thereof shall be provided by Alcor
under Schedule C, Section A-I, to this Agreement, provided such
services are cost competitive with other decontamination services
available at that time and meet the environmental and responsible
care standards of each of Alcor and Ethyl. For Product shipped in
equipment from facilities maintained by Alcor or one or more
- 8 -
of its Affiliates, all equipment shall be in good operating
condition, fit for the purposes intended, and duly certified.
Maintenance services for non-bulk distribution equipment and
acquisition or lease of new equipment for such use shall be
pursuant to Schedule C, Sections A-I and B-I, to the
Agreement. At Alcor's request and at Ethyl's option, Ethyl
shall provide terminaling services at its facilities in
Dordrecht, The Netherlands, and Singapore to Alcor in support
of sales of Product to customers in the Territory upon the
terms and compensation set forth in Schedule C, Section B-I,
to this Agreement, the amount of such compensation to be
pre-notified upon request by Alcor.
11. Marketing, Sales and Distribution Services
------------------------------------------
Marketing, sales and distribution services means the marketing, sales
and distribution services and support services to effectively sell Product to
customers for use in the Territory including but not limited to administrative,
logistics and order processing services, technical support, professional
services, and information technology. All marketing and sales of Product to
customers for use in the Territory pursuant to this Agreement shall be by and in
the name of one or more of Alcor and its Affiliates or, at Alcor's authorization
and direction, in the name of Veritel pursuant to the Marketing, Supply and
Service Agreement and the Purchase and Sales Commission Agreement. Except as
otherwise provided in this Agreement, all orders shall be placed with one or
more of Alcor and its Affiliates, and one or more of Alcor and its Affiliates
shall collect all proceeds from such sales. Such Services shall be provided by
Alcor and its Affiliates pursuant to Schedule C, Section A-I(ii) to this
Agreement .
12. Agreement Proceeds Calculation
------------------------------
a.
b.
c.
- 9 -
13. Payments
--------
a. The Parties agree that, except as otherwise expressly stated
herein, cash distributions relating to Party Services shall be
made within 15 days following the end of the month to which
they relate and shall be calculated as provided in Schedule D.
b. For the term of this Agreement, Ethyl agrees to maintain its
Swiss company status and to submit itself to Swiss tax
jurisdiction and pay applicable Swiss tax attributable to
funds received pursuant to this Agreement. Ethyl will furnish
Alcor with written confirmation when such return is filed and
payments are made. Ethyl shall also provide Alcor with prompt
notice of any actions or circumstances beyond their control
which may have the effect of removing Ethyl from Swiss tax
jurisdiction.
c. Alcor and Ethyl believe that under current Swiss law Alcor is
not required to withhold taxes from any amounts payable to
Ethyl under this Agreement and accordingly, that all such payments
should be made gross of tax. However, if in the future the
applicable revenue ruling is reversed or is no longer applicable
due to actions beyond Alcor's control and Alcor should reasonably
determine that tax withholding on amounts to be paid to Ethyl is
required, then Alcor may, after advising Ethyl of the basis for
its determination, effect withholding as appropriate. If, based on
Alcor's conclusion that withholding is not legally required, Alcor
makes payments to Ethyl without withholding taxes and it is later
determined that withholding was required, Ethyl shall
indemnify Alcor for any liability Alcor suffers from having
failed to withhold such taxes.
d. Ethyl shall have the right, in good faith by appropriate
proceedings to contest in Alcor's name any withholding taxes
which Alcor has reasonably determined and required by law to
be made. Alcor agrees to cooperate fully with Ethyl in any way
Ethyl may reasonably request in connection with such contest.
e. Any contest conducted by Ethyl shall be conducted at Ethyl's
expense and in the event of any penalties, interest or late
charge with respect to taxes as a result of such taxes become
payable, Ethyl shall reimburse Alcor for the same.
14. Audit and Investigation Rights
------------------------------
a. Each Party providing Services and/or providing Product
pursuant to this Agreement shall prepare and maintain the
necessary books and accounting records as required by good and
prudent business practice and generally accepted accounting
principles. Such records shall accurately reflect the cost of
Services and/or Product provided by such Party or such Party's
Affiliates. Alcor shall cause an annual audit of the financial
reports under this Agreement to be conducted and the cost of
such audit shall be covered under this Agreement.
- 10 -
b. In addition, each Party shall have the right to have an
independent auditor conduct a special examination of, or
perform an agreed upon procedures review (each, an "Audit") in
connection with such records to determine if such records
accurately reflect the financial results of the activities
conducted pursuant to this Agreement (including the Agreement
Proceeds Calculation) and that Services and/or Product provided by
each of the Parties were accurately recorded and the charges for
such Services and Product were correct. Such Audit shall be
conducted under the terms of a confidentiality agreement and
shall be used for the sole purpose of determining whether an
overcharge or undercharge has occurred. Such Audit will be
conducted during normal business hours and shall be at the expense
of the Party requesting the Audit. Only the final report of
the auditor's conclusions will be provided to both Parties.
If such Audit reveals a discrepancy in favor of the Party
requesting said Audit, and upon agreement of the other Party, said
discrepancy shall be promptly reimbursed. If the Parties cannot
reach agreement regarding the auditor's report, either Party may
exercise its rights under Paragraph 18 of this Agreement which
shall constitute the sole remedy of the Parties to resolve the
matter. Upon resolution of the matter, the successful Party
shall be entitled to interest on the amount owed from the date
such sum was due to the date such sum was paid. Interest shall be
calculated at the rate of LIBOR plus three percent per annum. If
the Audit determines that an overcharge of less than US$100,000
has occurred, the Parties shall divide the cost of the Audit
equally between them. If, pursuant to such an Audit, it is
determined that an overcharge in excess of US$100,000 has occurred
to the detriment of the Party requesting the Audit, then the cost
of the Audit shall be paid by the other Party.
15. Term of the Agreement
---------------------
This Agreement shall become effective as of the Effective Date and
shall continue for an initial term of 11 Contract Years and successive Contract
Years thereafter so long as Alcor, its successor or its Affiliates continues to
make Product available for sale (whether directly or indirectly), provided that
neither Alcor nor Ethyl invokes its rights under Paragraph 17 of this Agreement.
16. Insurance and Liabilities
-------------------------
a. Each Party shall obtain and maintain during the term of this
Agreement with insurers reasonably acceptable to the other
Party insurance coverage of the types and minimum limits as
set forth in Schedule F to this Agreement with regard to
supplying Product and performing Party Services pursuant to
this Agreement.
b. As to claims between the Parties:
(i) In the event Product for sale to customers within the
Territory supplied by: (A) one or more of Alcor and
its Affiliates and manufactured by one or more of
Alcor and its Affiliates or one or more of Ethyl and
its Affiliates, fails to be of merchantable quality
and meet the required customer Product
specifications, the supplier of such Product shall be
responsible at its sole
- 11 -
expense for the costs of returning, reprocessing (including
disposal, if necessary) and/or replacement of such
material with Product which is merchantable and meets
the required customer Product specifications at such
supplier's sole expense; and (B) Veritel, GII or
Sintez fails to be of merchantable quality and meet
the required customer Product specifications, Alcor
shall advise the Strategic Council promptly of the
rights and remedies available to it under the terms
of the Marketing, Supply and Service Agreement and
the Sintez Guaranty to seek recovery for the costs,
expenses and losses incurred as a result of such
failure. Any course of action to seek or not seek
recovery shall be approved by the Council.
(ii) Each Party shall perform Party Services in a safe,
professional, cost-effective manner in accordance
with industry standards and the requirements of the
Council. In the event a Party performs services and
such services are improperly or negligently
performed, the supplier of such services as its sole
liability in respect of such failure shall not be
entitled to the relevant service fee as set forth in
Sections A-I and B-I of Schedule C to this Agreement
in respect of such unsatisfactory services.
(iii) Without prejudice to Paragraphs 16(b)(i) and (b)(ii),
there shall be no claims made by either Party against
the other Party in providing Product and/or rendering
Party Services pursuant to this Agreement for any
direct, indirect or consequential loss (including
lost profits) as a result of non-compliance
irrespective of the cause or reason unless such loss
or damage arises as a direct result of a deliberate
act or omission of a Party with the intent of causing
economic loss to the other Party, a material breach
of or a wilful refusal of a Party to comply with the
terms of this Agreement.
c.
- 12 -
17. Termination
-----------
This Agreement is terminable under the following circumstances:
a. The Agreement is terminable at any time by mutual agreement in
writing of the Parties.
b. Provided such information is not confidential, each Party
shall give not less than 30 days notice of a possible Change
of Control. In any event, each Party shall notify the other
immediately following a Change of Control. Upon a Change of
Control, the other Party may terminate this Agreement by
giving written notice and by tendering the Termination Fee (as
defined below) in cash within 30 days of the determination of
the Termination Fee.
c. Either Party may terminate this Agreement upon the expiration
of the 11th Contract Year by providing written notice 180 days
prior to expiration of the 11th Contract Year, or successive
Contract Years, and making a payment to the non-terminating
party in an amount equal to the Termination Fee less any
amounts owed by one Party to the other within 30 days of
determination of the Termination Fee. Giving notice and then
failing to make the Termination Fee payment to the other Party
under Paragraph 17(c) herein shall preclude the Party giving
notice from serving another notice of termination within two
years from the date of the original notice.
d. Upon termination of this Agreement pursuant to Paragraphs
17(b) or (c), the Party receiving the Termination Fee shall
not within a period of three years engage in the sale of
Product in the Territory.
e. If neither Party terminates this Agreement pursuant to this
provision as provided in the provisions of Paragraphs 17(a),
(b) or (c), this Agreement shall continue in full force and
effect for successive Contract Years thereafter as provided in
Paragraph 15.
f.
g.
- 13 -
h. The Parties agree that the provisions of this Paragraph 17 shall
not constitute a lien or encumbrance on the assets or the property
of either Party.
18. Disputes
--------
Except as otherwise provided herein, any dispute between the Parties
with respect to this Agreement or matters upon which the Council cannot agree
and an impasse is reached shall be resolved in accordance with the dispute
resolution procedure set forth in Schedule E to this Agreement.
19. Contingencies
-------------
Neither Alcor nor Ethyl shall be liable for failure to perform its
obligations as required under this Agreement where such failure to perform is
caused by an event or circumstance beyond the reasonable control of the Party
affected thereby (each, a "Force Majeure Event"). Without limiting the
generality of the forgoing, a Force Majeure Event may include fire, storm,
flood, act of God, war, explosion, sabotage, strike or other labor trouble,
shortage of fuel and or raw material, embargo, car/wagon shortages, accident,
expropriation of plant or equipment, shortage of Product and or raw materials
caused in whole or in part by any governmental authority, inability to secure
machinery and or other equipment or energy or raw materials for the manufacture,
transport or distribution of Products, inability to obtain vessel or cargo
insurance at reasonable cost due to war, revolution or civil interest, or acts
or threats of action by any government or any agency thereof or any other event
or circumstance beyond the reasonable control of either Party. No event or
circumstance shall serve to excuse an obligation to perform hereunder if such
event could have been prevented through exercise of reasonable diligence. A
Party claiming the benefit of this provision shall provide written notice of the
Force Majeure Event to the other Party and take all reasonable steps to cure the
problem causing the inability to perform such required service.
20. Waiver
------
Failure of either Party to insist in any instance on the strict
performance of any term, provision or condition of this Agreement or to exercise
any option herein contained shall not be construed as a waiver of such term,
provision, condition or option in any other instance.
- 14 -
21. Assignment
----------
The rights and obligations of any Party hereunder shall not be assigned
or transferred without the prior written consent of the other Party, such
consent not to be unreasonably withheld. The foregoing notwithstanding, either
Party may, without the consent of the other Party, assign all or part of its
rights under this Agreement to an Affiliate of the assignor or to another party
in connection with its merger or transfer to such other Party of substantially
all of its assets or of the business or assets to which this Agreement pertains.
Nothing herein shall restrict any corporate reorganization by a Party that does
not constitute a Change of Control.
22. Notices
-------
Notice to either Party under any provision of this Agreement shall be
deemed good and sufficient if (i) delivered in writing in person, (ii) sent by
facsimile to the other Party with confirmation of receipt of transmission and
promptly confirmed by air mail or (iii) delivered by commercial courier to the
address of such party noted below or such other address as such Party has
directed in a signed writing. Notice shall be effective on the date delivered in
person, sent by facsimile or delivered by commercial courier, whichever is
applicable.
Address for notices:
If to Alcor, to:
---------------
Alcor Chemie Vertriebs
Ruessenstrasse 16-18
CH - 6340 Baar
SWITZERLAND
with a copy to:
--------------
Alcor Chemie AG
Ruessenstrasse 16-18
CH-6340 Baar
SWITZERLAND
with a copy to:
--------------
NOOFOT GmbH
Ruessenstrasse 16-18
CH-6340 Baar
SWITZERLAND
- 15 -
and a copy to:
-------------
The Associated Octel Company Limited
Global House, Bailey Lane
Manchester M90 4AA
UNITED KINGDOM
Attn: John Tayler
Corporate Secretary and General Counsel
and a copy to:
-------------
Kirkland & Ellis
Tower 42, 25 Old Broad Street
London EC2N 1HQ
UNITED KINGDOM
Attn: Samuel A. Haubold, Esq.
If to Ethyl, to:
---------------
Ethyl Services GmbH
c/o Schild Treuhand A.G.
Grafenauweg 8
P.O. Box 4763
CH-6304 Zug
SWITZERLAND
with a copy to:
--------------
Ethyl Corporation
Vice President and General Counsel
P.O. Box 2189 (23218-2189)
330 South Fourth Street
Richmond, VA 23219
UNITED STATES OF AMERICA
23. Miscellaneous
-------------
a. This Agreement (including the documents and Schedules referred
to herein) constitutes the entire agreement between the
Parties and supersedes any prior understandings, agreements,
or representations by or between the Parties, written or oral,
to the extent they related in any way to the subject matter
hereof. No change or modification shall be effected except by
a writing agreeing to the modification or change executed by a
duly authorized officer of each Party.
b. If terms of this Agreement are found by a court of competent
jurisdiction to be unlawful, unenforceable and/or legally
non-binding on either Party, the Parties agree that such terms
shall not affect the validity of the remainder of this
Agreement and the Parties agree to substitute terms in this
Agreement as near to
- 16 -
the intent of the invalid or unenforceable provisions as is
legally permissible. The Parties shall negotiate in good faith
to make such changes in this Agreement as shall most nearly
preserve the overall commercial intention of the Parties in
entering into this Agreement. If it is determined by a court
or governmental agency having competent jurisdiction that this
Agreement is totally invalid, unlawful or unenforceable and an
arrangement providing the same economic benefits to the
Parties cannot be substituted, the Parties agree to negotiate
in good faith to determine an amount to return the Parties so
far as possible to the position they would have been in had
this Agreement not been entered into. If the Parties cannot
reach an agreement on the required adjustments within 90 days
from the date this Agreement is found to be invalid, unlawful
or unenforceable, then the matter shall be subject to the
dispute resolution procedure set forth in Schedule E to this
Agreement. If agreement cannot be reached by the Parties under
the procedure, the arbitrators impaneled under the procedure
shall determine the financial adjustments required to return
the Parties so far as is possible to the position they would
have been in had this Agreement not been entered into.
c. Under no circumstances shall the Parties discuss with one
another (or provide one another with any information)
concerning prices to customers, terms of supply, and other
competitive information of the lead antiknock compound market
in the United States.
d. This Agreement shall be governed by, construed and enforced in
accordance with the laws of the Commonwealth of Virginia,
United States of America, without regard to the conflict of
laws and principles thereof.
e. The terms of this Agreement shall be regarded by the Parties
as confidential and shall not be disclosed by either Party
publicly or to third parties (other than Veritel, GII and
their respective Affiliates) without the written consent of
the other Party, provided however that disclosure may be made
if required by law or compliance with regulatory requirements.
f. Alcor shall promptly notify the Strategic Council in writing
of a material breach or default of the Marketing, Supply and
Service Agreement, the Purchase and Sales Commission Agreement
and the Sintez Guaranty when it learns of such an event and
the steps it is taking to minimize losses resulting therefrom.
Alcor shall advise the Council of the rights and remedies
available to it to seek recovery for such costs, expenses and
losses. Any course of action to seek or not seek recovery
shall be approved by the Council.
g. Notwithstanding anything to the contrary in this Agreement,
the Parties agree and acknowledge that in the event of a
breach of by a Party of any payment obligation to the
non-breaching Party under this Agreement, the non-breaching
Party may set off all or any portion of monies payable to the
breaching Party by the non-breaching Party against the
breached payment obligation of the breaching Party.
* * * * *
- 17 -
IN WITNESS WHEREOF, each Party has caused this Agreement to be executed
by a duly authorized representative effective as of the date first above
written.
ALCOR CHEMIE VERTRIEBS AG
By: /s/ D.J. Kerrison
-------------------------------------
Name: D.J. Kerrison
Title:
Date: December 5, 2001
-------------------------------------
ALCOR CHEMIE AG
By: /s/ D.J. Kerrison
-------------------------------------
Name: D.J. Kerrison
Title:
Date: December 5, 2001
-------------------------------------
NOOFOT GMBH
By: /s/ Nigel Seddon
-------------------------------------
Name: Nigel Seddon
Title: Director
Date: December 5, 2001
-------------------------------------
ETHYL SERVICES GMBH
By: /s/ Trevor Gigg
-------------------------------------
Name: Trevor Gigg
Title:
Date: December 11, 2001
-------------------------------------
18
SCHEDULE A
Strategic Council Rules and Procedures
Council Membership. The Council shall be composed of six members. Each Party
shall in its sole discretion appoint three members to serve as its
representatives on the Council. Each Party shall have the right to appoint a new
representative to replace a position on the Council previously appointed by that
Party which becomes vacant for any reason. Each Party may in its sole discretion
remove and/or appoint a substitute representative to a Council position
appointed by that Party. The appointment shall be effective upon delivery of
written notice to the other Party and members of the Council of such
appointment.
* * * * *
Schedule A-1
SCHEDULE B
Agreement Proceeds Calculation
Schedule B-1
SCHEDULE C
Services
The Parties agree that in order to capture the cost synergies and
efficiencies that will be generated by implementing this Agreement that the
Services provided by the Parties pursuant to this Agreement be rendered in an
efficient and cost-effective manner. Each Party agrees that it will continue to
examine and implement methods of reducing cost in providing the Services during
the term of this Agreement.
A. ALCOR SERVICES. The description of the Services to be rendered
pursuant to this Agreement by or on behalf of Alcor by Veritel
or GII pursuant to the Marketing, Supply and Service Agreement
and the Purchase and Sales Commission Agreement are set forth
in Section A of this Schedule C and are made a part hereof.
Each of the Alcor Services shall be rendered by one or more of
Alcor and its Affiliates.
B. ETHYL SERVICES. The description of the Services to be
rendered by Ethyl pursuant to this Agreement are set forth in
Section B of this Schedule C and are made a part hereof.
Each of the Ethyl Services shall be rendered by one or
more of Ethyl and its Affiliates.
The Parties agree that out of proceeds collected by one or more of
Alcor and its Affiliates and designees pursuant to this Agreement that the
Parties shall be compensated for Alcor Services and Ethyl Services,
respectively, rendered by each Party in accordance with Paragraphs 12 and 13 of
this Agreement.
Each Party shall invoice monthly for Services rendered pursuant to this
Agreement and payment shall be made to Ethyl in accordance with Paragraph 13 of
the Agreement.
Schedule C-1
SCHEDULE D
Schedule D-1
Working Capital
EXHIBIT D(i)
Exhibit D(i)-1
Determination of Working Capital Requirements and Cash Settlement of Alcor and
Ethyl's Alliance Expenses
SCHEDULE E
Dispute Resolution Procedure
1. Resolution of Legal Disputes.
With the exception of disputes arising out of a deadlock in the vote of
the Council concerning a business issue within the Council's authority, any
dispute, controversy or claim arising out of or relating to this Agreement,
shall be finally determined by arbitration in accordance with the Rules of
Arbitration of the LCIA in London, England, provided that the Parties have been
unable to reach a satisfactory resolution through negotiation and mediation
under the procedures set forth below.
1.1 Negotiation.
-----------
Before proceeding to mediation or arbitration, the Parties
shall attempt in good faith to resolve any such dispute promptly by
negotiation between senior executives of the respective Parties. Within
25 days of the delivery by one Party to the other Party of a written
notice of a dispute, controversy or claim, the receiving Party shall
submit to the claiming Party a written response. The notice and
response shall include: (1) a short statement of each Party's position
and a summary of reasons supporting that position; and (2) the name and
position of the executive who will represent the Party and any other
person who will accompany the executive in negotiations and include a
schedule of the availability of said executive. Within 45 days after
delivery of the notice of dispute, the senior executives of both
Parties shall meet at a mutually agreeable time and place, and
thereafter for so long as they mutually agree, for negotiations in an
attempt to resolve the dispute through agreement. All negotiations
pursuant to this clause will be treated as confidential and shall be
treated as compromise and settlement discussions for purposes of
applicable rules of confidentiality, evidence and professional secrecy.
1.2 Mediation.
---------
Either Party may request the services of a mediator to aid the
senior executives in resolving the dispute. Unless the Parties
otherwise agree, the selection of a mediator shall be made by the
Centre for Dispute Resolution ("CEDR") in London, England, and CEDR
procedures shall govern the mediation. The Parties and the mediator
shall meet within 20 days after the date that the mediator is appointed
to begin settlement discussions with the assistance of the mediator.
The mediation process shall continue thereafter as long as both Parties
agree.
1.3 Arbitration.
-----------
If the Parties have been unsuccessful in resolving a dispute
under this section through negotiation, either Party may commence
binding arbitration of such dispute in accordance with the Rules of the
LCIA as follows:
Schedule E-1
1.3.1 Unless the Parties agree on a single arbitrator, the
arbitral tribunal shall consist of three members;
each Party shall select one arbitrator and the LCIA
shall select the third arbitrator who shall be
knowledgeable concerning the subject matter of the
dispute. Each Party may submit to the LCIA for its
consideration in making the selection of the third
arbitrator the qualifications, knowledge and
experience that the Party requests to be considered
in said appointment.
1.3.2 The place of the arbitration shall be London,
England.
1.3.3 The language of the arbitration shall be English.
1.3.4 The arbitral tribunal shall have the authority to
award all forms of relief determined to be just and
equitable; provided, however, that the tribunal shall
have no authority to award punitive or exemplary
damages, or any other damages not measured by the
prevailing Party's actual damages.
1.3.5 Any arbitral award entered by the tribunal shall be
final and binding on the Parties and may be enforced
in any court of competent jurisdiction.
2. Resolution of Strategic Council Deadlock.
Where there is a deadlock in the vote of the Council by reason of a tie
vote among its members concerning a business issue within its authority, any
member of the Council who has voted on the issue may initiate the following
dispute resolution procedures:
2.1 Unless otherwise agreed by a majority of the Council, the
deadlocked issue shall be first be raised and discussed at a
special meeting of the Council called within 30 days in an
attempt to resolve the deadlock through negotiation
satisfactory to a majority of all of the members of the
Council.
2.2 If the Council vote on the issue remains deadlocked after
discussion and negotiation at the second meeting of the
Council, either Party may request the services of a mediator
to aid the Parties in resolving the deadlocked issue. Should
there be no agreement on the identification of a suitable
mediator, the appointing authority for selection of a mediator
shall be made by the CEDR after consultation with each Party
as to the qualifications, knowledge and experience that a
mediator should have. Within 45 days from the second Council
meeting, the members of the Council shall meet with the
assistance of the mediator and, under CEDR procedures, seek to
resolve the dispute in a way which is satisfactory to a
majority of all the members of the Council. These mediation
meetings shall be confidential and shall last for so long as a
majority of the Council determines that such meetings are be
helpful in resolving the business dispute.
Schedule E-2
2.3 If such issue remains deadlocked after undergoing the
mediation process described in Paragraph 2.2 of this Schedule
E to this Agreement, the issue shall be finally resolved by
binding arbitration as follows:
2.3.1 Resolution of such issue shall be referred to arbitration in
London, England, under the Rules of Arbitration of the LCIA.
2.3.2 Unless the Parties agree on a single arbitrator, the arbitral
tribunal shall consist of three members, each Party to select
one arbitrator and the two arbitrators to select the third
arbitrator who will serve as Chairman. In the event that the
two arbitrators are unable to agree on the appointment of the
third arbitrator, the appointment shall be made in accordance
with the LCIA Rules. The Chairman need not be a lawyer but
should be knowledgeable concerning the business issue which
has resulted in a deadlock. Each Party may submit to the LCIA
for its consideration in making the selection of the third
arbitrator the qualifications, knowledge and experience that
the Party requests to be considered in said appointment.
2.3.3 As part of its final submission to the arbitral tribunal, each
Party shall make a specific proposal to resolve the business
issue that is the subject of the arbitration. The power of the
arbitral tribunal to render an award shall be limited to
adopting one of the specific proposals submitted by the
Parties.
2.3.4 The position adopted by the arbitral tribunal shall be
accepted as the action of the Council under this Agreement.
2.3.5 In arriving at its award the arbitral tribunal shall take into
account the following factors:
2.3.5.1 Alcor's need in the context of the global
business requirements of Octel Corp. to
manage the production decline and eventual
closing of its AK manufacturing facilities
on a long term, cost effective basis as
worldwide demand for Product declines.
2.3.5.2 The ultimate goal of the Parties is to
operate under this Agreement in a way which
maximizes long-term profitability for both
Parties in marketing Product to customers
for use in the Territory.
2.3.5.3 The goal of the Parties is to reduce the
overall costs of providing services under
this Agreement in safely and efficiently
marketing and distributing Product in the
Territory.
Schedule E-3
3. Time Is of the Essence
Each Party agrees that time is of the essence in resolving legal
disputes and Council deadlocks. Each Party shall fully cooperate to avoid
unnecessary delay in reaching resolution of these matters. Neither Party shall
be required to post security by way of a bank guarantee or other collateral to
initiate a resolution of a dispute under the provisions of this dispute
resolution procedure other than for the administrative costs of proceeding with
the dispute resolution process.
* * * * *
Schedule E-4
SCHEDULE F
Insurance
1. Insurance of Employees and Facilities
-------------------------------------
a. Alcor will effect, and at all times maintain during
the term of this Agreement and for so long as any
liabilities may arise thereunder, Employers'
Liability Insurance to a minimum level required by
applicable law, and in any event in an amount of not
less than per occurrence and where applicable
Workman's Compensation Act Insurance in respect of
each employee provided by Alcor who performs any
duties in connection with this Agreement.
b. Ethyl will effect, and at all times maintain during
the term of this Agreement and for so long as any
liabilities may arise thereunder, Employers'
Liability Insurance to a minimum level required by
applicable law, and in any event in an amount of not
less than per occurrence and where applicable
Workman's Compensation Act Insurance in respect of
each employee provided by Ethyl who performs any
duties in connection with this Agreement.
c. Alcor will effect and at all times maintain during
the term of this Agreement All Risks usually insured
in respect of (including Flood, Quake and Engineering
Risks) Property Damage Coverage with the property
valued at Full Replacement Cost on the Alcor
Affiliate Product manufacturing and related
facilities.
2. Public and Product Liability
----------------------------
Alcor and Ethyl will each effect and at all times maintain during the
term of this Agreement, Public and Product Liability insurance in an
aggregate amount of (with a deductible amount as agreed between the
Parties from time to time) with respect to any liabilities for which
the Parties are responsible as provided in Paragraphs 16(c)(i), (ii),
(iii) and (iv) of this Agreement. Each Party shall name the other Party
as an additional insured under such insurance.
3. Cargo Insurance
---------------
Alcor shall effect in the joint names of Alcor and Ethyl, and at all
times maintain during the term of this Agreement on mutually agreed
terms and conditions, Bulk and Non-Bulk Cargo Insurance to cover
shipments of Product to customers in the Territory pursuant to this
Agreement. Non-Bulk insurance shall be placed on a CIF plus 10 percent
plus value of containers basis. Bulk insurance shall be placed on a FOB
value plus 10 percent, plus value of containers where applicable. Any
deductible under such policies shall be borne by the Parties in the
proportions set forth in Sections A-II and B-II of Schedule C to this
Schedule F-1
Agreement (irrespective of the cause or reason that the Losses may have
arisen and the fault of either Party in relation thereto).
4. Contingent Non-Bulk Marine Cargo Liability
------------------------------------------
Alcor shall effect in the joint names of Alcor and Ethyl, and at all
times maintain during the term of this Agreement on mutually agreed
terms and conditions, Contingent Non-Bulk Marine Cargo Insurance to
cover Non-Bulk shipments of AK to customers in the Territory pursuant
to this Agreement to an amount on conditions to be determined by Alcor.
Any deductible under such policy shall be borne by the Parties in the
proportions set forth in Sections A-II and B-II of Schedule C to this
Agreement (irrespective of the cause or reason that the Losses may have
arisen and the fault of either Party in relation thereto).
5. Insurance Costs
---------------
The portion of the cost of all insurance relating to Agreement
Activities pursuant to Paragraphs 3 and 4 of Schedule F to this
Agreement shall be included as an expense under Section A-I of Schedule
C to this Agreement.
6. Additional Insurance
--------------------
Schedule F-2
SCHEDULE G
Schedule G-1