Confidential
treatment has been requested for portions of this document. This
copy of the document filed as an exhibit omits the confidential
information subject to the confidential treatment request.
Omissions are designated by three asterisks (***). A complete
version of this document is being filed separately with the
Securities and Exchange Commission.
SUPPLY AGREEMENT,
dated as of December _2_, 2005, between FUJI PHOTO FILM U.S.A.,
INC., a New York corporation (“Fuji”), and PCA LLC, a
Delaware Limited Liability Company
(“Customer”).
WHEREAS, Customer
desires to purchase quantities of Fujicolor Crystal Archive Color
Paper and Fuji Hunt Chemicals (collectively, the
“Products”) from Fuji and Fuji is willing to sell such
quantities of the Products to Customer on the terms and subject to
the conditions set forth in this Agreement.
NOW, THEREFORE, in
consideration of the premises and the mutual promises herein
contained, the parties hereby agree as follows:
1. Definitions. When used in this Agreement, the
following terms will have the respective meanings set forth in this
Article 1 . Definitions used herein are used without regard to
gender, and definitions in the singular shall apply equally when
used in the plural.
(a)
“Chemicals” shall have the meaning set forth in the
definition of Minimum Purchase Requirement.
(b)
“Confidential Information” means all information
and data of the disclosing party designated as confidential
concerning products or the business of the disclosing party or its
affiliated companies, disclosed to the receiving party orally or in
writing. If either party hereunder discloses information to the
other party orally, then within two (2) weeks after such
disclosure the disclosing party will confirm in writing to the
receiving party the confidential nature of the information so
disclosed. “Confidential Information” shall not include
any information which the receiving party can establish:
(i) is
now generally known or available to the public or which hereafter
through no act or failure on the part of the receiving party
becomes generally known or available to the public;
(ii) is
legally known to the receiving party at the time of receiving such
information;
(iii) is
furnished to others by the disclosing party without a restriction
on disclosure;
(iv) is
hereafter furnished to the receiving party in writing by a third
party without restriction on disclosure, where such third party
legally obtained such information and the right to disclose it to
the receiving party; or
(v) is
independently developed by the receiving party without violation of
any legal rights which the disclosing party may have in such
information.
A party shall be
permitted to disclose Confidential Information in the event such
party is required to do so pursuant to a valid judicial or
administrative order requiring disclosure; provided, however, that
such party shall notify the other party hereto in writing promptly
after receiving the judicial or administrative order and such party
shall will cooperate and consult with the other party to take steps
to avoid disclosure.
(c)
“Minimum Purchase Requirement” means that
obligation of Customer to purchase from Fuji during the Supply
Period at least (***) and (ii) all chemicals
(“Chemicals”) required for processing the
Paper.
(d)
“Paper” means Fujicolor Crystal Archive Color
Paper.
(e) “Products” means Paper and
Chemicals.
(f)
“Shipment Date” means the date on which Fuji places
Product ordered by Customer in the hands of a carrier for delivery
to Customer.
(g) “Supply Period” means a period of time,
which begins on January 1, 2006 and ends on June 30,
2007.
(h)
“UCC” means the Uniform Commercial Code, as in
force in the State of New York on the date of this
Agreement.
2.1 Fuji’s
affiliates will manufacture the Products according to their
standard manufacturing and packaging specifications for the
Products in place from time to time. It is understood that Customer
does not require any changes to such standard specifications for
the Products.
3. Forecasts; Orders; Minimum Purchase Requirement;
Marketing.
3.1 Beginning in
December, 2005, Customer shall submit to Fuji a six-month written
forecast of its monthly requirements of the Products on or before
the 15 th
day of each month. The parties agree
that the forecast for the first three calendar-month period set
forth in each monthly statement submitted by Customer to Fuji shall
constitute a “firm offer” within the meaning of
Section 2-205 of the UCC for all Products listed for such
three calendar-month period. The forecast for the second three
calendar-month period in each monthly statement submitted by
Customer to Fuji shall constitute estimates of Customer’s
requirements of Products for such period. The forecast for the
first one-month period set forth in each monthly statement shall be
deemed a purchase order subject to acceptance or rejection by Fuji.
The format for such written forecasts will be mutually agreeable to
both parties.
(a) Customer
will submit purchase orders to Fuji in writing, which may be
transmitted to Fuji by electronic facsimile or by electronic data
interchange system. Customer will submit its purchase orders by the
15 th
of each month, with a requested
Shipment Date from Fuji’s distribution center in the United
States of not less than thirty (30) days after receipt of such
purchase order by Fuji.
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(b) Whenever
the Products ordered by Customer in a month exceed Customer’s
forecast of its requirements for Products in that month,
Customer’s purchase orders will be subject to acceptance by
Fuji based on availability; provided that, in all events, Fuji will
be entitled to withhold or delay its acceptance of Customer’s
purchase orders or to refuse to ship Product ordered if Customer is
in default (and any grace or cure period therefor has elapsed)
under this Agreement and such default is continuing.
(c) Any
purchase orders submitted by Customer under this Agreement shall
contain only orders for the Products to be manufactured pursuant to
Fuji’s standard specifications for such Products. It is
understood that there will be no custom or special manufacturing or
packaging requirements.
3.2 Customer
shall, during the Supply Period, purchase from Fuji of its
requirements in North America for Paper and Chemicals, except that
from time to time, Customer may purchase minimum quantities of
competitive products, not to exceed one percent (1%) of
Customer’s annual consumable requirements in North America,
for testing and evaluation purposes. Notwithstanding the preceding
sentence, Customer is required to purchase during the Supply Period
a sufficient number of Products from Fuji so as to satisfy the
Minimum Purchase Requirement.
3.3 In the event
that Customer does not satisfy the Minimum Purchase Requirements
for any or all Products in the Supply Period, Customer shall pay
Fuji an amount calculated as follows: (***) This penalty shall be
waived in the event of an early termination of this Agreement for
cause by Customer pursuant to Section 8.2(b) or without cause
by Fuji pursuant to Section 8.2(c).
3.4 Fuji may, in
its sole discretion, permit the quantity of Product to be shipped
in an order to vary up or down by 10% from the quantity set forth
in the respective forecast.
4. Sales
Terms; Delivery; Resale.
4.1 Fuji shall
sell, and Customer shall purchase, the Products in accordance with
the provisions of this Agreement and Fuji’s sales terms in
effect with respect to the Products at the time of
purchase.
4.2 Fuji will
deliver Products F.O.B. Fuji’s or its agent’s
warehouse, to the address designated by Customer. Surface freight
and insurance from Fuji’s or its agent’s warehouse to
the address designated by Customer shall be borne by Fuji provided
all shipments are sent via ground surface carrier selected by Fuji.
Products ordered by Customer pursuant to a particular purchase
order shall be completed and made available for delivery or other
disposition as specified therein in approximately thirty
(30) days from Fuji’s receipt of such purchase order.
It
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is expressly
agreed that no estimate of delivery time made by Fuji will
constitute a guaranty of delivery by such date, that all shipping
and delivery dates will be approximate, and that Fuji will not be
liable for any damages, consequential or otherwise, for delays in
delivery. Fuji shall in no way be held liable for any portion of
Customer’s claim for damages for non-arrival, loss or any
other damage occurred to the Products in transit exceeding the
amount actually redeemed by insurance. Customer shall be
responsible for transportation costs associated with air shipment
or any expedited shipments requested by Customer. In the event of a
delay in shipment for more than five (5) days beyond the
scheduled delivery date, Customer may purchase substitute product
from another vendor. In such event the purchase of substitute
product shall not be counted against Customer’s 1% limitation
but shall be counted in calculating the minimum purchase
requirement.
4.3 Customer is
purchasing the Products for its own use and will not resell any
Product to any third party without the written consent of
Fuji.
5.1 Subject to the
provisions of this Article 5, the price for each Product shall
be as set forth on Schedule A hereto. All prices shall
be dead net and no credits or deductions shall be allowed on
invoices.
5.2 Prices are
exclusive of all federal, state, local, excise, use and similar
taxes. All taxes of any nature which are billed to Customer shall
be identified, separately stated and paid by Customer or, in lieu
thereof, Customer shall provide Fuji with a tax-exemption
certificate acceptable to the relevant taxing authorities. Failure
by Fuji to invoice any taxes does not abrogate Customer’s
obligation to pay such tax.
5.3 Payment shall
be made by Customer by wire transfer prior to shipment of Products.
If Customer makes a late payment, Fuji shall add a late payment
charge to the shipment value. The late payment charge shall be
calculated by multiplying the value of the shipment times the prime
rate as published in the Wall Street Journal on the first business
day of the month in which payment is due times the number of days
late divided by 365.
5.4 On or prior to
June 30, 2006, Fuji will review the credit terms provided to
Customer, and, based on such review, may, in its sole discretion,
grant more favorable terms.
6. Disclaimer
of Warranty; Indemnification.
6.1 Fuji makes no
warranties or representations concerning the Products to Customer.
FUJI HEREBY DISCLAIMS ALL WARRANTIES REGARDING THE PRODUCTS
INCLUDING, BUT NOT LIMITED TO, ALL EXPRESS WARRANTIES, ALL IMPLIED
WARRANTIES AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. If any court having jurisdiction finally holds
that this limitation of remedies is void or unenforceable,
Fuji’s liability for any claim shall be
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