EXHIBIT 10.1
SUPPLY AGREEMENT
THIS SUPPLY AGREEMENT (the
“Agreement”) is made effective as of this 9th day of
November, 2004, by and between MPAV Acquisition LLC (to be renamed
Putnam Plastics Company LLC), having its principal place of
business at 130 Louisa Viens Drive, Dayville, Connecticut 06241
(“Customer”), and Foster Corporation, having its
principal place of business at 45 Ridge Road, Putnam, Connecticut
06260 (“Supplier”).
Recitals:
A. Customer manufacturers biomedical materials
and plastics compounds.
B. Customer desires to obtain, and Supplier
desires to manufacture for and make available to Customer, plastic
compounds (the “Products”).
NOW, THEREFORE, in consideration of
the foregoing recitals and the mutual covenants contained herein,
the parties agree as follows:
Article I.
Manufacture, Purchase and Supply
of Products; Terms; Acceptance
1.1 Supply Agreement .
Supplier shall supply the Products on the terms and conditions set
forth in this Agreement. During the term of this Agreement,
Customer shall be permitted, but not required, to purchase the
Products from Supplier.
1.2 Purchase Orders .
Customer submit issue purchase orders to Supplier for the Products
as desired. Each order placed by Customer for Products during the
term of this Agreement (“Purchase Order”) shall be
subject to the terms and conditions set forth in this Agreement,
including Supplier’s Standard Terms and Conditions set forth
on Exhibit A hereto, and shall constitute a binding
agreement by Supplier to sell said Products to Customer on the
terms set forth herein. In the event of modifications by Customer
to a Purchase Order after its original submission to Supplier,
Supplier shall use reasonable efforts to satisfy Customer’s
revised volume and/or timing requirements. If there is any conflict
between the terms of this Agreement and Supplier’s Standard
Terms and Conditions, the terms of this Agreement shall
control.
1.3 Price . The price to be
paid by Customer for the Products purchased hereunder shall be
“most favored nation” pricing for customers of the
Supplier purchasing quantities of Products similar to those being
purchased by Customer, meaning that Customer shall be entitled to
the lowest price for each Product that the Product is then made
available by Supplier to such other parties that purchase such
Product in quantities similar to those being purchased by Customer.
The most favored nation price for each of Supplier’s products
on the date hereof is set forth on Exhibit B hereto.
Supplier may amend and supplement said Exhibit B by sending
a copy of a revised Exhibit B to Customer from time to time
as the most favored nation price for any or more Products is
changed; provided , however , that no price increases
shall be effective for orders placed prior to, or within (7) days
of, Customer’s receipt of said revised Schedule B
.
1.4 Payment Terms . Supplier
shall submit invoices upon shipment of the Products, and Customer
shall pay such invoices in full within 45 days after the later of:
(a) acceptance of the Products, or (b) receipt of the related
invoices, unless Customer disputes the invoice.
1.5 Shipping . Supplier shall
ship all Products according to Customer’s shipping
instructions, FOB Supplier’s Dayville, Connecticut location,
with title to the Products and risk of loss and damage passing to
Customer upon delivery of the Products. Supplier shall pack all
Products suitably for shipment according to the common
carrier’s requirements and in such manner as to secure lowest
transportation cost and to protect against damage during transport.
Supplier shall manufacture, store and transport all Products
consistently with the applicable requirements to ensure the quality
of the Products, including, without limitation, all requirements
relating to storage, handling, temperature, humidity controls, etc.
Supplier shall provide a customary material certificate to Customer
with each shipment of Products.
1.6 Acceptance . Prior to
acceptance upon receipt, Customer may inspect Products at its
facility. Products will be deemed accepted by Customer unless
Customer notifies Supplier in writing that such Products have been
rejected within ten (10) business days of its delivery to Customer.
Customer may return non-conforming Products to Supplier for credit,
refund of purchase price or replacement at Customer’s option.
Supplier shall bear all costs (including shipping) and risk of loss
for such returned Products provided that Supplier has given
Customer written authorization to return such Products, which
authorization shall not be unreasonably withheld. Products shall be
deemed non-conforming if Customer (i) determines in its reasonable
judgment, after inspection, that they fail to materially comply
with the relevant product specifications and (ii) timely furnishes
Supplier with a written report specifying such non-conformity. All
Products returned to Supplier for replacement shall be replaced by
Supplier and shipped to Customer at Supplier’s expense within
ten (10) business days of Supplier’s receipt of notice from
Customer concerning the non-conforming Products.
Article II.
Representations and Warranties;
Additional Covenants; Limitation of Warranty; Limitation of
Liabilities
2.1 Of Supplier . Supplier
represents and warrants that the Products that are delivered to
Customer hereunder shall:
(a) conform in all respects with the
requirements of this Agreement, including the then current
specifications for such Product, and the applicable Purchase
Order;
(b) not infringe the patent claims
or trade secrets of any person and Supplier shall indemnify and
defend Customer and its affiliates against all such infringement
claims, demands, actions, losses, damages, fines, penalties, costs
and expenses (including attorneys’ fees); and
(c) be free and clear of all liens
and encumbrances, or other defects in title.
The foregoing representations and
warranties shall survive inspection, delivery and payment for the
Products, and shall be for the benefit of Customer and its
customers.
2.2 Other Representations and
Warranties . Each of the parties hereby represents and warrants
to the other that: (a) it has full power and authority required to
enter into, execute and deliver this Agreement, to carry out its
obligations hereunder and to perform the transactions contemplated;
(b) this Agreement has been duly executed and delivered by, is the
valid and binding obligation of, and is enforceable against, such
party in accordance with its terms; and (c) the execution, delivery
and performance of this Agreement by such party does not conflict
with or violate any other agreement to which it is a party or by
which it is bound, or any applicable law to which it is bound or
subject.
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2.3 Use of Name . Neither
party shall, without the prior written consent of the other party,
use in advertising, publicity, or otherwise, the name, trademark,
logo, symbol, or other image of the other party including without
limitation, any of such relating to Customer or any affiliate of
Customer.
2.4 Warranty and Liability
Limitation . OTHER THAN THE EXPRESS WARRANTIES MADE IN ARTICLE
II AND ELSEWHERE IN THIS AGREEMENT SUPPLIER MAKES NO WARRANTY OR
REPRESENTATION, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR
OTHERWISE, AS TO THE MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE GOODS SOLD HEREUNDER. CUSTOMER ACKNOWLEDGES THAT IT
ALONE HAS DETERMINED THAT THE GOODS PURCHASED HEREUNDER WILL
SUITABLY MEET THE REQUIREMENT OF THEIR INTENDED USE.
Article III.
Indemnification
3.1 Indemnification by
Supplier . Supplier shall indemnify, defend and hold harmless,
Customer and its affiliated entities (including subsidiaries), and
Customer’s and such entities’ respective officers,
directors, agents, insurers, employees, stockholders, and
customers, from and against all claims, suits, liability and
expense (including but not limited to reasonable attorneys’
fees) (each a “Liability”), whether or not such
Liability is stated as a product liability claim, a strict
liability claim or other similar claim, that is caused by or based
upon any: (a) breach by Supplier of any of the representations or
warranties in Article II, including, without limitation, any
Liability based upon any alleged defect in Products resulting from
Supplier’s failure to meet the specifications or QA standards
for such Product; (b) material breach by Supplier of any other
provision of this Agreement; or (c) the negligence, misconduct, or
violation of any applicable law, rule or regulation by Supplier or
any of its affiliates in the performance of Supplier’s
obligations under this Agreement; provided , however
, that Customer shall: (i) give Supplier prompt notice of any such
Liabilities; (ii) give Supplier all information in its possession
relating to such Liabilities; (iii) permit Supplier to defend the
same through its counsel; and (iv) give its authorization for and
(at Supplier’s cost) assistance in such defense.
3.2 Indemnification by
Customer . Customer shall indemnify, defend and hold harmless
Supplier and its affiliated entities (including subsidiaries), and
Supplier’s and such entities’ respective officers,
directors, agents, insurers, employees, and shareholders
(“Supplier Indemnities”) from and against all
Liabilities relating to any product manufactured or sold by
Customer that incorporates Products to the extent such Liabilities
are based upon allegations of personal injuries, death, or property
damages or loss proximately caused by the use of a product
manufactured or sold by Customer, whether such Liability is stated
as a product liability claim, a strict liability claim or other
similar claim; provided , however , that:
A. Supplier shall: (i) give Customer
prompt notice of any such Liabilities; (ii) give Customer the right
to assume full and sole control of the defense or settlement of the
same through Customer’s counsel; (iii) give Customer all
information in its possession relating to such Liabilities; (iv)
give its authorization for and assistance (at Customer’s
cost) in such defense; and (v) give Customer the right to approve
any settlement, which approval shall not be unreasonably
withheld;
B. Customer shall not, however,
indemnify, defend or hold harmless the Supplier Indemnities for any
matter which would give rise to a claim by Customer for indemnity
from Supplier under Section 3.1; and
C. Customer shall have sole and
unqualified discretion to select attorneys to defend any Liability
which is the subject of Customer’s obligations hereunder, and
notwithstanding anything
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contained herein to the contrary,
Customer’s Liability for attorney fees will only apply to
Customer-selected attorneys.
Article IV.
Term and
Termination
4.1 Term . The term (the
“Term”) of this Agreement shall commence on the date
hereof and end as of November 8, 2009.
Article V.
Miscellaneous
5.1 Independent Contractors .
The parties hereto are independent contractors and nothing
contained in this Agreement shall be deemed to create the
relationship of employment, partnership, joint venture or any
association or relationship between the parties other than that of
supplier and buyer.
5.2 Entire Agreement;
Amendments . The terms of this Agreement shall constitute the
entire agreement between the parties as to each and all
manufacturing and sales of Products. No additional or different
terms set
