-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, CWWz8ijpAjrKfBot9naQ2eEpTyLDSY+OA7cB4Tsll3i0946ol8Ump5vcuIR3OBgd dzRRQCkZqnk8IsGvjBFfEg== 0000950129-95-000137.txt : 19950609 0000950129-95-000137.hdr.sgml : 19950609 ACCESSION NUMBER: 0000950129-95-000137 CONFORMED SUBMISSION TYPE: 10-K405/A PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 19940930 FILED AS OF DATE: 19950303 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: STERLING CHEMICALS INC CENTRAL INDEX KEY: 0000795662 STANDARD INDUSTRIAL CLASSIFICATION: INDUSTRIAL ORGANIC CHEMICALS [2860] IRS NUMBER: 760185186 STATE OF INCORPORATION: DE FISCAL YEAR END: 0930 FILING VALUES: FORM TYPE: 10-K405/A SEC ACT: SEC FILE NUMBER: 001-10059 FILM NUMBER: 95518206 BUSINESS ADDRESS: STREET 1: 1200 SMITH ST, SUITE 1900 CITY: HOUSTON STATE: TX ZIP: 77002-4312 BUSINESS PHONE: 7136503700 MAIL ADDRESS: STREET 1: 1200 SMITH ST SUITE 1900 CITY: HOUSTON STATE: TX ZIP: 77002-4312 10-K405/A 1 STERLING CHEMICAL FORM 10-K/A 1 - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-K/A ------------------------ (MARK ONE) [X] ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 [FEE REQUIRED] FOR THE FISCAL YEAR ENDED SEPTEMBER 30, 1994 OR [ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15 (D) OF THE SECURITIES EXCHANGE ACT OF 1934 [NO FEE REQUIRED] FOR THE TRANSITION PERIOD FROM TO COMMISSION FILE NUMBER 1-10059 STERLING CHEMICALS, INC. (EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER) ------------------------ DELAWARE 76-0185186 (STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) 1200 SMITH STREET SUITE 1900 77002-4312 HOUSTON, TEXAS (ZIP CODE) (ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) REGISTRANT'S TELEPHONE NUMBER, INCLUDING AREA CODE: (713) 650-3700 ------------------------ SECURITIES REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT: NAME OF EACH EXCHANGE TITLE OF EACH CLASS ON WHICH REGISTERED - --------------------------------------------- --------------------------------------------- Common Stock, par value $.01 per share New York Stock Exchange, Inc.
SECURITIES REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT: NONE Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes X No --- --- Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of the Form 10-K or any amendment to this Form 10-K. /X/. ---- As of December 5, 1994, the number of shares of common stock outstanding was 55,673,991. As of such date, the aggregate market value of common stock held by nonaffiliates, based upon the closing price of these shares on the New York Stock Exchange, was approximately $430 million. DOCUMENTS INCORPORATED BY REFERENCE: (1) Portions of the Company's Annual Report to Shareholders for the fiscal year ended September 30, 1994 (Part II Items 5-8 & Part IV Item 14 (a) 1) (2) Portions of the Company's definitive Proxy Statement dated December 19, 1994 (Part III Items 10-12). - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- 2 3. Exhibits Except as otherwise noted under "Description of Exhibit," each exhibit is incorporated by reference to the exhibit of the same number filed with the Company's Registration Statement of Form S-1 (Registration No. 33-24020).
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT ----------- ----------------------------------------------------------------- 2.1 Purchase Agreement dated as of August 20, 1992 between Tenneco Canada Inc. as Seller, and Sterling Pulp Chemicals, Ltd. and Sterling Canada, Inc. as Buyers (Purchase Agreement)incorporated by reference from Exhibit 2.1 to the Company's Current Report on Form 8-K dated as of September 3, 1992. 3.1 Restated Certificate of Incorporation of the Company. **3.2 Amended By-laws of the Company. 4.2 Form of Registration Rights Agreements dated as of July 30, 1986 among the Company and the holders of Common Stock listed on the signature page thereto. 10.1 Asset Purchase Agreement dated August 1, 1986, between Monsanto Company and the Company incorporated by reference from exhibit 10.1 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992.
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EXHIBIT NUMBER DESCRIPTION OF EXHIBIT ----------- ----------------------------------------------------------------- 10.2 Third Amended and Restated Credit Agreement dated as of August 20, 1992 among the Company, the Banks, The Chase Manhattan Bank (National Association) ("Chase"), and The Bank of Nova Scotia, as Agent incorporated by reference from Exhibit 10.2(F) to the Company's Current Report on Form 8-K dated September 2, 1992. 10.3 Amendment No. 1 dated as of August 20, 1992 among the Company, the Banks and The Bank of Nova Scotia as Agent incorporated by reference from exhibit 10.3 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992. 10.3(A) Amendment No. 2 dated as of June 30, 1993 among the Company, the Banks and The Bank of Nova Scotia, as Agent. **10.3(B) Amendment No. 3 dated as of April 29, 1994 among the Company, the Banks and The Bank of Nova Scotia, as Agent. 10.4 Third Amended and Restated Security Agreement dated as of August 20, 1992, among the Company, the Banks and The Bank of Nova Scotia, as Agent incorporated by reference from exhibit 10.4 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992. 10.5 First Amendment to Credit Agreement dated as of August 20, 1992 among Sterling Canada, Inc., Sterling Pulp Chemicals, Ltd., certain financial institutions and The Bank of Nova Scotia, as Agent incorporated by reference from exhibit 10.5 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992. 10.5(A) Second Amendment to Credit Agreement dated as of March 31, 1993 among Sterling Canada, Inc. Sterling Pulp Chemicals, Ltd. certain financial institutions and The Bank of Nova Scotia, as Agent. **10.5(B) Third Amendment to Credit Agreement dated as of September 30, 1994 among Sterling Canada, Inc. Sterling Pulp Chemicals, Ltd. certain financial institutions and The Bank of Nova Scotia, as Agent. 10.6 Sterling Chemicals, Inc. (Restated as of October 1, 1993) Salaried Employees' Pension Plan incorporated by reference from exhibit 10.6 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993. **10.6(a) Supplement to the Sterling Chemicals, Inc. Salaried Employees' Pension Plan Restated as of January 1, 1994. **10.6(b) First and Second Amendments to the Sterling Chemicals, Inc. Salaried Employees' Pension Plan dated April 27, 1994 and September 23, 1994, respectively. 10.8 Sterling Chemicals, Inc. (Restated as of October 1, 1993) Hourly Paid Employees' Pension Plan incorporated by reference from exhibit 10.8 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993. **10.8(a) Supplement to the Sterling Chemicals, Inc. Hourly Paid Employees' Pension Plan restated as of January 1, 1994. **10.8(b) First Amendment to the Sterling Chemicals, Inc. Hourly Paid Employees' Pension Plan dated April 27, 1994. 10.10 Sterling Chemicals, Inc. Amended and Restated Savings and Investment Plan incorporated by reference from exhibit 10.10 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993. **10.10(a) Supplements to Sterling Chemicals, Inc. Savings and Investment Plan for Hourly Paid Employees and Salaried Employees.
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EXHIBIT NUMBER DESCRIPTION OF EXHIBIT ----------- ----------------------------------------------------------------- **10.10(b) First and Second Amendments to the Sterling Chemicals, Inc. Amended and Restated Savings and Investment Plan dated April 27, 1994 and October 26, 1994, respectively. 10.12 Sterling Chemicals, Inc. Amended and Restated Employee Stock Ownership Plan incorporated by reference from exhibit 10.12 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993. **10.12(a) First Amendment to the Sterling Chemicals, Inc. Amended and Restated Employees' Stock Ownership Plan dated April 27, 1994. 10.15 Sterling Chemicals, Inc. Pension Benefit Equalization Plan incorporated by reference from exhibit 10.15 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993. 10.16 Sterling Chemicals, Inc. 1989 Omnibus Stock and Incentive Plan. +10.17 Styrene Monomer Sales Contract dated as of August 1, 1991, between the Company and Monsanto Company incorporated by reference from exhibit 10.12(A) to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1990. +10.18 Styrene Monomer Exchange Contract dated as of August 1, 1991, between the Company and Monsanto Company incorporated by reference from exhibit 10.13(A) to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1990. +++10.19 Acrylonitrile Exchange Contract dated January 1, 1994, between the Company and Monsanto Company. ++10.21 Amended and Restated Lease and Production Agreement dated August 8, 1994, between BP Chemicals Americas Inc. and the Company. +10.22 Product Sales Agreement dated August 1, 1986, between BASF Corporation and the Company incorporated by reference from exhibit 10.22 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992. ++10.22(a) Amendment No. 3 to Product Sales Agreement as of January 1,1994 between BASF Corporation and the Company. +10.25 Production Agreement dated April 15, 1988 between BP Chemicals Americas Inc. and the Company and First and Second Amendment thereto. +10.26 Agreement dated May 2, 1988, between E.I. du Pont de Nemours and Company and the Company. 10.27 License Agreement dated April 15, 1988, between BP Chemicals Americas Inc. and the Company. +10.28 Sales Agreement dated September 1992, between the Company and Mitsubishi International Corporation incorporated by reference from exhibit 10.28 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993. 10.29 License Agreement dated August 1, 1988, between the Monsanto Company and the Company. **10.30 Form of Indemnity Agreement executed between the Company and each of its officers and directors. 10.31 Amended and Restated Sterling Chemicals, Inc. Salaried Employee's Profit Sharing Plan incorporated by reference from exhibit 10.31 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993. 10.32 Amended and Restated Sterling Chemicals, Inc. Hourly Employees' Profit Sharing Plan incorporated by reference from exhibit 10.32 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993.
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EXHIBIT NUMBER DESCRIPTION OF EXHIBIT ----------- ----------------------------------------------------------------- 10.33 Agreement dated January 30, 1987 among J. Virgil Waggoner, Gordon A. Cain and the Company regarding capital stock of the Company. 10.35 Article of Agreement between the Company, its successors and assigns and Texas City, Texas Metal Trades Council, AFL-CIO Texas City, Texas May 1, 1992 to May 1, 1995 incorporated. 10.36 Sterling Chemicals, Inc. Amended and Restated Supplemental Employee Retirement Plan incorporated by reference from exhibit 10.34. to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1989 10.37 Sterling Chemicals, Inc. Deferred Compensation Plan. +10.38 Buckingham Transition and Services Agreement dated as of August 21, 1992 between Tenneco Canada Inc. and Sterling Pulp Chemicals, Ltd. incorporated by reference from exhibit 10.36 to the Company's Current Report on Form 8-K dated September 3, 1992. 10.39 Processing Agreement dated as of August 21, 1992 between ERCO Industries, Inc. and Sterling Canada, Inc. 10.40 Conditional Performance Guaranty dated as of August 20, 1992 by Albright & Wilson, Ltd. in favor of Sterling Pulp Chemicals, Ltd., Sterling Canada, Inc. and the Indemnitees identified in Section 10.2 of the Purchase Agreement incorporated by reference from exhibit 10.38 to the Company's Current Report on Form 8-K dated September 3, 1992. 10.41 Performance Guaranty dated as of August 20, 1992 by the Company in favor of Tenneco Canada Inc., Rio Linda Chemical Co., Albright & Wilson Americas, Inc. and the Indemnitees under Section 10.3 of the Purchase Agreement incorporated by reference from exhibit 10.39 to the Company's Current Report on Form 8-K dated September 3, 1992. 10.42 Replacement Subordinated Promissory Note dated August 20, 1992 in the original principal amount of $44,268,114.43 from Sterling Canada, Inc. to Tenneco Credit Corporation incorporated by reference from exhibit 10.42 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992. 10.43 Subordinated Note Guaranty dated as of August 20, 1992 by the Company in favor of Tenneco Canada Inc. incorporated by reference from exhibit 10.41 to the Company's Current Report on Form 8-K dated September 3, 1992. 10.44 Credit Agreement dated as of August 12, 1992 among Sterling Canada, Inc., Sterling Pulp Chemicals, Ltd., certain financial institutions and The Bank of Nova Scotia, as Agent incorporated by reference from exhibit 10.42 to the Company's Current Report on Form 8-K dated September 3, 1992. 10.45 Lease dated March 1, 1990 between Procter & Gamble, Inc. and Tenneco Canada Inc., as amended by a Lease Modification Agreement dated August 9, 1991, and Consent and Assignment Agreement dated as of August 21, 1992 among 982174 Ontario Limited, Sterling Pulp Chemicals, Ltd., Proctor & Gamble, Inc., Tenneco Canada Inc. and The Bank of Nova Scotia incorporated by reference from exhibit 10.45 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992. 10.46 Lease dated July 1, 1977 between Canadian National Railway Company and ERCO Industries Limited, and Consent and Assignment Agreement dated as of August 21, 1992 among Tenneco Canada Inc., Sterling Pulp Chemicals, Ltd., Canadian National Railway Company and The Bank of Nova Scotia incorporated by reference from exhibit 10.46 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992.
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EXHIBIT NUMBER DESCRIPTION OF EXHIBIT ----------- ----------------------------------------------------------------- ++10.48 Sales and Purchase Agreement dated April 1, 1994 between BP Chemicals Ltd. and the Company. ++10.49 Contract for Sale and Purchase of Ethylene dated October 28, 1988 between Phillips 66 Company and the Company. **10.50 Agreement between Sterling Pulp Chemicals Ltd. North Vancouver British Columbia and Pulp, Paper and Woodworkers of Canada Local 5 British Columbia effective December 1, 1994 to November 30, 1997 **13.1 Sterling Chemicals, Inc. Annual Report to Shareholders for the fiscal year ended September 30, 1994. **27 Financial Data Schedule
- --------------- * Incorporated herein by reference to the appropriate portions of the Company's Annual Report to Shareholders for the fiscal year ended September 30, 1994. ** Filed with the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1994 ("1994 10-K"). + Confidential treatment has been requested with respect to portions of this Exhibit, and such request has been granted. ++ Filed with the 1994 10-K. Confidential treatment has been requested with respect to portions of this Exhibit. +++ Filed herewith. Confidential treatment has been requested with respect to portions of this Exhibit. (b) Reports on Form 8-K. No reports on Form 8-K were filed during the quarter ended September 30, 1994. 5 7 SIGNATURES Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized. STERLING CHEMICALS, INC. (Registrant) By: /s/ J. Virgil Waggoner ---------------------------------------- J. Virgil Waggoner President and Chief Executive Officer (Principal Executive Officer) Date: March 3, 1995 By: /s/ Jim P. Wise ---------------------------------------- Jim P. Wise Vice President - Finance (Principal Financial Officer) Date: March 3, 1995 8 LIST OF EXHIBITS
EXHIBIT NUMBER DESCRIPTION OF EXHIBIT ----------- ----------------------------------------------------------------- 2.1 Purchase Agreement dated as of August 20, 1992 between Tenneco Canada Inc. as Seller, and Sterling Pulp Chemicals, Ltd. and Sterling Canada, Inc. as Buyers (Purchase Agreement)incorporated by reference from Exhibit 2.1 to the Company's Current Report on Form 8-K dated as of September 3, 1992. 3.1 Restated Certificate of Incorporation of the Company. **3.2 Amended By-laws of the Company. 4.2 Form of Registration Rights Agreements dated as of July 30, 1986 among the Company and the holders of Common Stock listed on the signature page thereto. 10.1 Asset Purchase Agreement dated August 1, 1986, between Monsanto Company and the Company incorporated by reference from exhibit 10.1 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992.
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EXHIBIT NUMBER DESCRIPTION OF EXHIBIT ----------- ----------------------------------------------------------------- 10.2 Third Amended and Restated Credit Agreement dated as of August 20, 1992 among the Company, the Banks, The Chase Manhattan Bank (National Association) ("Chase"), and The Bank of Nova Scotia, as Agent incorporated by reference from Exhibit 10.2(F) to the Company's Current Report on Form 8-K dated September 2, 1992. 10.3 Amendment No. 1 dated as of August 20, 1992 among the Company, the Banks and The Bank of Nova Scotia as Agent incorporated by reference from exhibit 10.3 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992. 10.3(A) Amendment No. 2 dated as of June 30, 1993 among the Company, the Banks and The Bank of Nova Scotia, as Agent. **10.3(B) Amendment No. 3 dated as of April 29, 1994 among the Company, the Banks and The Bank of Nova Scotia, as Agent. 10.4 Third Amended and Restated Security Agreement dated as of August 20, 1992, among the Company, the Banks and The Bank of Nova Scotia, as Agent incorporated by reference from exhibit 10.4 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992. 10.5 First Amendment to Credit Agreement dated as of August 20, 1992 among Sterling Canada, Inc., Sterling Pulp Chemicals, Ltd., certain financial institutions and The Bank of Nova Scotia, as Agent incorporated by reference from exhibit 10.5 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992. 10.5(A) Second Amendment to Credit Agreement dated as of March 31, 1993 among Sterling Canada, Inc. Sterling Pulp Chemicals, Ltd. certain financial institutions and The Bank of Nova Scotia, as Agent. **10.5(B) Third Amendment to Credit Agreement dated as of September 30, 1994 among Sterling Canada, Inc. Sterling Pulp Chemicals, Ltd. certain financial institutions and The Bank of Nova Scotia, as Agent. 10.6 Sterling Chemicals, Inc. (Restated as of October 1, 1993) Salaried Employees' Pension Plan incorporated by reference from exhibit 10.6 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993. **10.6(a) Supplement to the Sterling Chemicals, Inc. Salaried Employees' Pension Plan Restated as of January 1, 1994. **10.6(b) First and Second Amendments to the Sterling Chemicals, Inc. Salaried Employees' Pension Plan dated April 27, 1994 and September 23, 1994, respectively. 10.8 Sterling Chemicals, Inc. (Restated as of October 1, 1993) Hourly Paid Employees' Pension Plan incorporated by reference from exhibit 10.8 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993. **10.8(a) Supplement to the Sterling Chemicals, Inc. Hourly Paid Employees' Pension Plan restated as of January 1, 1994. **10.8(b) First Amendment to the Sterling Chemicals, Inc. Hourly Paid Employees' Pension Plan dated April 27, 1994. 10.10 Sterling Chemicals, Inc. Amended and Restated Savings and Investment Plan incorporated by reference from exhibit 10.10 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993. **10.10(a) Supplements to Sterling Chemicals, Inc. Savings and Investment Plan for Hourly Paid Employees and Salaried Employees.
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EXHIBIT NUMBER DESCRIPTION OF EXHIBIT ----------- ----------------------------------------------------------------- **10.10(b) First and Second Amendments to the Sterling Chemicals, Inc. Amended and Restated Savings and Investment Plan dated April 27, 1994 and October 26, 1994, respectively. 10.12 Sterling Chemicals, Inc. Amended and Restated Employee Stock Ownership Plan incorporated by reference from exhibit 10.12 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993. **10.12(a) First Amendment to the Sterling Chemicals, Inc. Amended and Restated Employees' Stock Ownership Plan dated April 27, 1994. 10.15 Sterling Chemicals, Inc. Pension Benefit Equalization Plan incorporated by reference from exhibit 10.15 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993. 10.16 Sterling Chemicals, Inc. 1989 Omnibus Stock and Incentive Plan. +10.17 Styrene Monomer Sales Contract dated as of August 1, 1991, between the Company and Monsanto Company incorporated by reference from exhibit 10.12(A) to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1990. +10.18 Styrene Monomer Exchange Contract dated as of August 1, 1991, between the Company and Monsanto Company incorporated by reference from exhibit 10.13(A) to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1990. +++10.19 Acrylonitrile Exchange Contract dated January 1, 1994, between the Company and Monsanto Company. ++10.21 Amended and Restated Lease and Production Agreement dated August 8, 1994, between BP Chemicals Americas Inc. and the Company. +10.22 Product Sales Agreement dated August 1, 1986, between BASF Corporation and the Company incorporated by reference from exhibit 10.22 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992. ++10.22(a) Amendment No. 3 to Product Sales Agreement as of January 1,1994 between BASF Corporation and the Company. +10.25 Production Agreement dated April 15, 1988 between BP Chemicals Americas Inc. and the Company and First and Second Amendment thereto. +10.26 Agreement dated May 2, 1988, between E.I. du Pont de Nemours and Company and the Company. 10.27 License Agreement dated April 15, 1988, between BP Chemicals Americas Inc. and the Company. +10.28 Sales Agreement dated September 1992, between the Company and Mitsubishi International Corporation incorporated by reference from exhibit 10.28 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993. 10.29 License Agreement dated August 1, 1988, between the Monsanto Company and the Company. **10.30 Form of Indemnity Agreement executed between the Company and each of its officers and directors. 10.31 Amended and Restated Sterling Chemicals, Inc. Salaried Employee's Profit Sharing Plan incorporated by reference from exhibit 10.31 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993. 10.32 Amended and Restated Sterling Chemicals, Inc. Hourly Employees' Profit Sharing Plan incorporated by reference from exhibit 10.32 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1993.
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EXHIBIT NUMBER DESCRIPTION OF EXHIBIT ----------- ----------------------------------------------------------------- 10.33 Agreement dated January 30, 1987 among J. Virgil Waggoner, Gordon A. Cain and the Company regarding capital stock of the Company. 10.35 Article of Agreement between the Company, its successors and assigns and Texas City, Texas Metal Trades Council, AFL-CIO Texas City, Texas May 1, 1992 to May 1, 1995 incorporated. 10.36 Sterling Chemicals, Inc. Amended and Restated Supplemental Employee Retirement Plan incorporated by reference from exhibit 10.34. to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1989 10.37 Sterling Chemicals, Inc. Deferred Compensation Plan. +10.38 Buckingham Transition and Services Agreement dated as of August 21, 1992 between Tenneco Canada Inc. and Sterling Pulp Chemicals, Ltd. incorporated by reference from exhibit 10.36 to the Company's Current Report on Form 8-K dated September 3, 1992. 10.39 Processing Agreement dated as of August 21, 1992 between ERCO Industries, Inc. and Sterling Canada, Inc. 10.40 Conditional Performance Guaranty dated as of August 20, 1992 by Albright & Wilson, Ltd. in favor of Sterling Pulp Chemicals, Ltd., Sterling Canada, Inc. and the Indemnitees identified in Section 10.2 of the Purchase Agreement incorporated by reference from exhibit 10.38 to the Company's Current Report on Form 8-K dated September 3, 1992. 10.41 Performance Guaranty dated as of August 20, 1992 by the Company in favor of Tenneco Canada Inc., Rio Linda Chemical Co., Albright & Wilson Americas, Inc. and the Indemnitees under Section 10.3 of the Purchase Agreement incorporated by reference from exhibit 10.39 to the Company's Current Report on Form 8-K dated September 3, 1992. 10.42 Replacement Subordinated Promissory Note dated August 20, 1992 in the original principal amount of $44,268,114.43 from Sterling Canada, Inc. to Tenneco Credit Corporation incorporated by reference from exhibit 10.42 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992. 10.43 Subordinated Note Guaranty dated as of August 20, 1992 by the Company in favor of Tenneco Canada Inc. incorporated by reference from exhibit 10.41 to the Company's Current Report on Form 8-K dated September 3, 1992. 10.44 Credit Agreement dated as of August 12, 1992 among Sterling Canada, Inc., Sterling Pulp Chemicals, Ltd., certain financial institutions and The Bank of Nova Scotia, as Agent incorporated by reference from exhibit 10.42 to the Company's Current Report on Form 8-K dated September 3, 1992. 10.45 Lease dated March 1, 1990 between Procter & Gamble, Inc. and Tenneco Canada Inc., as amended by a Lease Modification Agreement dated August 9, 1991, and Consent and Assignment Agreement dated as of August 21, 1992 among 982174 Ontario Limited, Sterling Pulp Chemicals, Ltd., Proctor & Gamble, Inc., Tenneco Canada Inc. and The Bank of Nova Scotia incorporated by reference from exhibit 10.45 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992. 10.46 Lease dated July 1, 1977 between Canadian National Railway Company and ERCO Industries Limited, and Consent and Assignment Agreement dated as of August 21, 1992 among Tenneco Canada Inc., Sterling Pulp Chemicals, Ltd., Canadian National Railway Company and The Bank of Nova Scotia incorporated by reference from exhibit 10.46 to the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1992.
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EXHIBIT NUMBER DESCRIPTION OF EXHIBIT ----------- ----------------------------------------------------------------- ++10.48 Sales and Purchase Agreement dated April 1, 1994 between BP Chemicals Ltd. and the Company. ++10.49 Contract for Sale and Purchase of Ethylene dated October 28, 1988 between Phillips 66 Company and the Company. **10.50 Agreement between Sterling Pulp Chemicals Ltd. North Vancouver British Columbia and Pulp, Paper and Woodworkers of Canada Local 5 British Columbia effective December 1, 1994 to November 30, 1997 **13.1 Sterling Chemicals, Inc. Annual Report to Shareholders for the fiscal year ended September 30, 1994. **27 Financial Data Schedule
- --------------- * Incorporated herein by reference to the appropriate portions of the Company's Annual Report to Shareholders for the fiscal year ended September 30, 1994. ** Filed with the Company's Annual Report on Form 10-K for the fiscal year ended September 30, 1994 ("1994 10-K"). + Confidential treatment has been requested with respect to portions of this Exhibit, and such request has been granted. ++ Filed with the 1994 10-K. Confidential treatment has been requested with respect to portions of this Exhibit. +++ Filed herewith. Confidential treatment has been requested with respect to portions of this Exhibit. EX-10.19 2 EXHIBIT 10.19 1 EXHIBIT 10.19 **OMITTED INFORMATION DENOTED BY ASTERISKS (***) HAS BEEN FILED SEPARATELY WITH THE COMMISSION AND IS SUBJECT TO A CONFIDENTIAL TREATMENT REQUEST** ACRYLONITRILE EXCHANGE CONTRACT THIS CONTRACT, made as of January 1, 1994 by and between Sterling Chemicals, Inc., a Delaware corporation ("Sterling") having a plant at Texas City, Texas (the "Plant"), and Monsanto Company, a Delaware corporation ("Monsanto"). W I T N E S S E T H : WHEREAS, Sterling desires to exchange Acrylonitrile with Monsanto and Monsanto desires to exchange Ammonia and Propylene with Sterling, on the terms and conditions herein after specified, including the Terms and Conditions set forth in Attachment 1 hereto, which is incorporated herein by reference: NOW THEREFORE, in consideration of the following mutual covenants, Sterling and Monsanto agree: 1. GOODS. Sterling shall deliver Acrylonitrile meeting the specifications set forth in Exhibit A hereto, which is incorporated herein by reference (as used with reference to Sterling's delivery obligation, herein called the "Goods") to Monsanto in exchange for Ammonia and Propylene meeting the specifications set forth, respectively, in Exhibits B and C hereto, which are incorporated herein by reference ( as used with reference to Monsanto's delivery obligation, herein called the "Goods") to be delivered by Monsanto to Sterling, together with the differential to be paid by Monsanto to Sterling as hereafter provided in Section 4. 2. PERIOD. The period of this Contract shall be January 1, 1994 through December 31, 1998. 3. QUANTITY. Subject to all the terms and conditions hereof, the Goods to be delivered hereunder by Sterling shall be Monsanto's annual purchase requirement for such Goods in excess of Monsanto's own production of Acrylonitrile, which excess is estimated to be between * * * * and * * * * per calendar year, subject to the General Terms and Conditions set forth in Attachment 1 hereto. For each 1 pound of Goods to be delivered by Sterling to Monsanto during each calendar quarter of the Contract Period, Monsanto shall deliver to Sterling either * * * * pounds of Ammonia and * * * * of Propylene, or Sterling's actual ratio of the usage of Ammonia and Propylene in the production of each one pound of the Goods during such calendar quarter, whichever is less. Promptly after the close of each calendar quarter, but not later than thirty (30) days thereafter, Sterling shall compute such actual ratio of usage for such quarter, and Monsanto will be appropriately and equitably debited or 2 credited for deliveries of Ammonia or Propylene to correct for any over or under deliveries which may have occurred during such quarter. 4. (a) DIFFERENTIAL. For the first calendar quarter immediately following the effective date of this Contract, in addition to the Goods to be exchanged by Monsanto for each 1 pound of the Goods delivered each month by Sterling in conformance with the terms hereof, Monsanto shall pay Sterling a differential fee of * * * *, subject to the General Terms and Conditions set forth on Attachment 1. Within thirty (30) days following the end of each calendar quarter * * * * of such * * * * per pound fee shall be adjusted up or down as follows: * * * * shall be adjusted by the same percentage change as shall have occurred in the average costs per KWH for electric power at the Plant between the second calendar quarter of 1993 and such average costs for the calendar quarter just ended; * * * * shall be adjusted by the same percentage change as shall have occurred in the average hourly labor costs for workers employed at the Plant between the second calendar quarter of 1993 and such average costs for the calendar quarter just ended; and * * * * shall be adjusted by the same percentage change as shall have occurred in the Industrial Commodity Index (less fuel and related power) contained in the Department of Labor, Bureau of Labor Statistics, Product Price Index, between the first calendar quarter of 1994 and such Index for the calendar quarter just ended; less a negative * * * * (i.e., a steam credit against the preceding adjustments) which negative amount (steam credit) shall be adjusted by the same percentage change as shall have occurred in the average cost per million BTUs for natural gas used at the Plant between $2.30 per million BTUs and the average cost per million BTUs for such gas for the calendar quarter just ended. Any change in the * * * * fee required shall be made retroactively effective to the first day of the calendar quarter in which the computation is made, with appropriate debits or credits issued between the parties for shipments made during such quarter prior to the making of the adjustment calculations. For all proceeding calendar quarters after the first calender quarter of this Contract, the estimated conversion fee will be taken as the final conversion fee for the previous quarter. (b) For each one (1) pound of Goods delivered by Sterling in excess of * * * * in a calendar year, Monsanto will pay Sterling a revised Differential equal to one-half of the Differential defined in Section 4(a) above plus one-half of "Sterling's volume weighted average $/lb. margin" on all Acrylonitrile export shipments (meeting or exceeding Sterling's standard sales specifications) during the calendar year in question. "Sterling's average $/lb. margin" shall be defined as Sterling's average per pound sales price in $/lb. for Acrylonitrile exported (meeting or exceeding Sterling's standard sales specifications) during the calendar year in question (adjusted to F.O.B. Sterling's Texas City Plant and adjusted for any Temporary voluntary or Competitive Allowances or other price adjustments extended to customers by Sterling) reduced by Sterling's average per pound cost in $/lb. of Ammonia and contained Propylene used during such calendar year. Such revised Differential shall begin when * * * * is exceeded and shall be estimated 2 3 by Sterling; provided that premium grade Acrylonitrile sold by Sterling at a premium price shall not be included in the calculation of "Sterling's average $/lb. margin." Promptly after the close of any calendar year in which such revised Differential is payable, Sterling shall compute such actual revised Differential and shall debit or credit Monsanto for any under or over payment." 5. SPECIFICATIONS. The specifications attached hereto shall not be changed without the mutual agreement of both parties. It is understood, however, that if at any time during the Contract period general market conditions change so that Monsanto can no longer make products acceptable to its customers from Goods meeting the attached specifications, Monsanto shall notify Sterling promptly and if the parties are unable, after attempting to do so in good faith, to reach agreement on revised specifications for the Goods, Monsanto may, by and effective upon notice to Sterling suspend its obligations to obtain from Sterling hereunder so much of the Goods as to which such conditions prevail, without liability, until such time as Monsanto and Sterling either reach agreement on revised specifications for the Goods, or Sterling otherwise modifies the Goods so that Monsanto is able to make products therefrom acceptable under then current general market conditions, and during any such suspension period, Monsanto may obtain its requirements for so much of the Goods as require revised specifications from others who can meet such revised specifications. Any such suspension period shall not operate to extend the Contract Period. 6. DELIVERIES. The FOB point where title and risk of loss shall pass to Sterling from Monsanto on the Goods to be delivered by Monsanto shall be (a) in the case of delivery by pipeline, when the Goods are delivered to the first flange of Sterling's receiving pipelines at the Plant; and (b) in the case of delivery by tankcar or barge, when the carrier tenders delivery of the tankcar or barge to Sterling at the Plant. The FOB point where title and risk of loss shall pass to Monsanto from Sterling on the Goods to be delivered by Sterling shall be when the Goods have been loaded aboard the delivering tankcar, barge or ship and possession of the conveyance is in the carrier. The method of delivery shall be by pipeline for Propylene; by barge for Ammonia; and by barges or ships furnished or arranged for by Monsanto, or by tankcars furnished by Sterling, for Acrylonitrile, all as Monsanto may specify from time to time. 7. SPECIAL TERMINATION ASSIGNMENT RIGHTS. Monsanto may terminate its quantity obligation with respect to so much of the quantity of Goods to be purchased [exchanged] hereunder as is consumed directly or indirectly by any business of Monsanto which Monsanto elects to sell to any third party or which Monsanto elects to discontinue, by giving Sterling at least one hundred eighty (180) days prior notice of the quantity to be terminated. IN the event of the sale of any Goods consuming business and not withstanding the prohibition against assignment contained in Section 12 of the "General Terms and Conditions", Monsanto may assign this Contract with the consent of Sterling (which consent 3 4 will not be unreasonably withheld) to any one or more third parties which purchase a business of Monsanto which consumes, directly or indirectly, a quantity of the Goods covered hereby to the extent of the quantity so consumed, provided at least thirty (30) days prior notice is given to Sterling of any such assignment. Sterling shall be deemed to have approved any such assignment unless it has raised objections to such assignment within the thirty (30) day period. In all cases involving the sale by Monsanto of any Goods consuming business, Monsanto agrees to use all reasonable efforts to assign the relevant quantities to the purchaser provided Sterling has not objected to such assignment within the thirty (30) day notice period referenced above. In the event, however, that Monsanto (i) is unable to assign the relevant quantities to the purchaser or (ii) Sterling does not consent to the assignment, Monsanto may nevertheless terminate its obligations with respect to any such quantity in accordance with the one hundred eighty day notice provision set forth above. 5. FAVORED NATIONS. Sterling shall promptly notify Monsanto of any conversion or exchange during the contract Period by Sterling of Acrylonitrile functionally equivalent to the Goods covered hereby for use or consumption within the United States at a delivered cost to the third party involved (adjusted to a net price FOB Sterling's Plant) which is lower than the delivered cost to Monsanto at Sterling's Plant, Texas City, then applicable to the Goods hereunder, and Monsanto shall thereupon be entitled to exchange hereunder a quantity of the Goods at such lower delivered cost (adjusted to a net price FOB Sterling's Plant) equal to the quantity of Acrylonitrile so disposed of to such third party. 9. GOODS AND RECORDS. If Monsanto so requests, Sterling shall make available to an independent certified public accounting firm, mutually acceptable to Monsanto and Sterling and paid for by Monsanto such of Sterling books and records as shall be necessary to permit such accountants to verify the propriety and correctness of any matter relevant to Sterling's performance of this Contract or one or more of the provisions hereof, provided, however, that such accountant shall report to Monsanto only his conclusion concerning the correctness and accuracy of Sterling's calculations and whether there has been a correct application of the Contract provisions or, if not, what such firm considers to be the correct calculations and/or application of the contract. Such firm shall agree to keep confidential the information of Sterling to which it has access pursuant to such agreement as Sterling may reasonably require, and shall not otherwise divulge any of the data of Sterling which it has inspected or reviewed without the consent of Sterling. 10. WATERBORNE DELIVERY & MEASUREMENT (a) Monsanto shall give reasonable prior notice of vessel arrival and permitted laytime applicable to the vessel. After Sterling accepts a vessel 4 5 nominated by Monsanto, Sterling shall provide a safe berth at all times for any such vessel placed for loading/unloading by Monsanto. (b) Vessels shall be handled with all reasonable expediency and any delay beyond permitted laytime of which Sterling has been advised by Monsanto for the type of equipment used shall be paid for by Sterling. Sterling accepts that, from January 1, 1993 and for all further shipments of product from Texas City, Texas, to Monsanto, the permitted laytime will be 1,500 barrels per hour plus three (3) free hours of time for every barge loaded during one trip of the unit tow. (c) Sterling shall inspect all barges and vessels to ensure cleanliness so as not to affect purity of the Goods to be loaded. (d) Inspection of the quantity and quality of Goods being loaded upon or unloaded from barge(s) at the loading or unloading point shall be performed by a licensed inspector of petroleum products, who shall be mutually agreed upon by the parties, and the cost for such service shall be shared equally by Monsanto and Sterling. The determination of the quantity of Goods delivered hereunder shall be determined by taking the opening and closing inventory of Sterling's properly calibrated still shore tank before and after each shipment, unless such quantity determination is proven to be in error. For invoicing purposes volume shall be corrected to 60 Fahrenheit in accordance with applicable ASTM tables. Inspection of quality of the Goods shall be made on representative samples of the Goods taken from loading flange of Monsanto's barge or ship at loading point by a licensed inspector of petroleum products. In the event that a disagreement should arise as to quantity or quality, an inspection will be made by such mutually agreed upon licensed inspector of petroleum products and the results of such inspection shall govern, the cost to be borne by the party proven to be in error. 11. PIPELINE MEASUREMENTS. On all deliveries hereunder the quantity delivered shall be measured by meters. The following provisions (a) through (j) shall apply as to determination of quantity: (a) Sterling shall operate and maintain at no expense to Monsanto, the Goods (Propylene) custody transfer meter station located at or near the West Gate parking lot at the Plant. Such meter station shall be equipped with facilities necessary to determine accurately the quantity of Goods delivered by Monsanto hereunder and such measurement station shall be operated and maintained by Sterling in accordance with good industry practice. The primary measuring device shall be a recording turbine meter, or such other primary measure device as may be mutually agreed upon by the parties and shall be equipped with such provers, recorder and equipment as 5 6 appropriate and shall be installed and operated, all in accordance with appropriate American Petroleum Institute (API) standards including Chapter 5 Section 3 of API Manual of Petroleum Measurement Standards (A part of API-2534). (b) Monsanto, or its representative, may, at its option, install a check meter or meters at or near the FOB point for checking Sterling's measurement. Said meter shall be so installed as to not interfere with the operation of Sterling's metering facilities. The calibrating and adjusting of Monsanto's meters and the changing of charts and reading of charts on Monsanto's meters shall be done only by Monsanto, or its representative. Monsanto, or its representative, shall have access at all reasonable times to its equipment and shall make all repairs to said equipment at no expense to Sterling. Sterling shall have access at reasonable times to Monsanto's charts, records and calculations on written request to Monsanto. (c) Monsanto, or its representative, upon prior notice to Sterling and at Sterling's option accompanied by a Sterling employee or representative, shall have access at all reasonable times to the meters and equipment used in determining the quantity and quality of the Goods delivered hereunder, including all instruments used by Sterling or its designated representative, but the reading, metering and testing thereof and the changing of charts shall be done only by the agents or representatives of Sterling and only upon notice to Monsanto. Upon written request of Monsanto, Sterling shall submit to Monsanto records, charts and calculations from Sterling subject to return by Monsanto within 45 days after receipt thereof. (d) At least once a month, and on a date as near the first of the month as practicable, Sterling shall at the joint expense of Sterling and Monsanto, prove and test or cause to be proved and tested the meters and instruments, in the presence of Monsanto, or Monsanto's representative, and the parties hereto shall jointly observe any adjustments which are made, should same be necessary. Sterling shall give Monsanto at least three days' prior notice of the date and time all such tests and proving are to be conducted so that Monsanto may conveniently have its representative present. (e) Sterling shall, upon notice to Monsanto, cause the custody transfer meters to be read for billing purposes on a monthly basis, as close to the date of proving as possible. 6 7 Monsanto shall have the right to be present for such reading and a certified copy of such reading shall be supplied to Monsanto. (f) Monsanto, at its expense, shall have the right to request that the meter be inspected and checked for calibration by an independent qualified third party at any time between normal Sterling recalibration intervals; if, as a result of such inspection, the meter is determined to be inaccurate by 1/2 percent or more, the cost of said inspection and subsequent recalibrations shall be borne by Sterling. (g) Following any test, any metering equipment found to be inaccurate to any degree shall be adjusted immediately to measure accurately, or, if applicable, an appropriate correction factor shall be agreed upon. If upon any calibration any metering equipment is found to be inaccurate by 1/2 percent or more, registration from said metering equipment and any payments based upon such registration shall be corrected at the rate of such inaccuracy for any period of inaccuracy which is definitely known or agreed upon, but in the case the period is not definitely known or agreed upon, then for a period extending back one-half of the time elapsed since the previous test, not exceeding however, 15 days. (h) If for any reason any meter is out of service, out of repair, or is found registering inaccurately and the error is not determinable by ordinary test, so that the quantity of Goods delivered through such meter cannot be ascertained or computed from the readings thereof, the quantity of Goods so delivered during the period same is out of service, out of repair, or is found to be so registering inaccurately shall be estimated and agreed upon by the parties hereto upon the basis of the best available data, using the first of the following methods which is feasible: (i) By using the registration of any check measuring equipment of Monsanto and/or Monsanto's representative, if installed and registering accurately. (ii) By correcting the error if the percentage of error is ascertainable by calibration, special test, or mathematical calculation; or (iii) By such other method as shall be mutually agreed upon by the parties hereto. 7 8 (i) If the parties are unable to agree on quantities delivered as a result of a meter inaccuracy determined pursuant to Section 11 (g) above, or if there is disagreement as to whether the Goods meet the relevant specifications attached hereto, either party may, on ten days' written notice to the other party, submit such question to such independent third party as may be mutually agreed, and the decision of such third party shall be binding on the parties. Costs of such determination shall be borne equally by each party. 12. NOMINATION/FORECAST. Monsanto shall at least thirty (30) days prior to the beginning of each calendar quarter give Sterling a nomination of Monsanto's deliveries of the Goods and requests for delivery of the Goods, each at the respective points of delivery for in the Contract. These quarterly volume nominations regarding Acrylonitrile offtake will be made in 5 million pound ranges with the minimum nomination being 30 million pounds and the maximum being 50 million pounds. All pounds delivered to Monsanto during the quarter will be invoiced according to the fee schedule above in Section 4. If, however, Monsanto's conversion with Sterling is greater than the 30 million pound per quarter minimum and Monsanto has given Sterling the required notification regarding this volume need or Sterling has agreed to a change of the volume nomination, then the Fixed Component for the additional volume, (pounds above 30 million per quarter) will be adjusted from the $0.03 per pound set forth in Section 4. The fee for the first 10 million pounds taken above the 30 million pound minimum per quarter (pounds between 30 and 40 million) will be based on a Fixed Component fee of $0.0275 per pound and the next 10 million pounds taken (between 40 and 50 million) per quarter will have a Fixed Component fee of $0.0250 per pound. MONSANTO COMPANY STERLING CHEMICALS, INC. BY: _________________________ BY: ________________________ TITLE _________________________ TITLE ______________________ 8 9 ATTACHMENT 1 MONSANTO COMPANY AND STERLING CHEMICALS, INC. General Terms and Conditions If, and to the extent that, the transaction governed by the following Terms and Conditions is a sale and purchase transaction the phrase "shipping party" shall mean "Seller", and the phrase "receiving party" shall mean "Buyer", unless the context requires otherwise. In the event of a conflict between these "General Terms and Conditions" and the specific terms and conditions in the Contract to which they are attached, such specific terms and conditions shall govern. 1. EXCUSE OF PERFORMANCE (a) Shipments and deliveries may be suspended by either party in the event of: Act of God, declared or undeclared war, acts of the public enemy, riot, fire, explosion, accident, flood, sabotage, blockades, embargoes, insurrections, epidemics, landslides, lightening, earthquakes, storms, hurricanes, washouts, civil disturbances, arrests; lack of adequate fuel, power, raw materials, labor, containers or transportation facilities; compliance with federal, state, local, municipal, civil and military governmental and governmental agency requests, laws, regulations, orders, actions, requisitions, restraints or directives; breakage, failures, disruptions, and necessary maintenance of machinery or apparatus; national defense requirements or any other event, whether or not of the class of kind enumerated herein, beyond the reasonable control of such party; or in the event of labor trouble, strike, slowdowns, lockout or injunction (provided that neither party shall be required to settle a labor dispute against its own best judgment); which event hinders, limits or makes impracticable the performance of this Contract or the manufacture, consumption, sale, exchange, shipment, receipt, use or obtaining of the Goods or any raw material, or any product manufactured or processed therefrom or therewith. (b) If either party determines that its ability to obtain or supply the total demand for the Goods which it is supplying pursuant to this Contract, or obtain any or a sufficient quantity of any material used directly or indirectly in the manufacture of the Goods, is hindered, limited or made impracticable by any event referred to in Section 1(a) such party shall allocate its available supply of the Goods or such 9 10 material (without obligation to acquire other supplies of any such Goods or material) among itself and its other contract customers and the other party to this Contract on a fair and equitable basis without liability for any failure of performance which may result therefrom, except, if the transaction covered hereby is an exchange, for any liability for imbalances stated in this Contract. (c) Shipments suspended or not made by reason of this section shall be canceled without liability except, if the transaction covered hereby is an exchange for any liability for imbalances arising out of such cancellation, but this Contract shall otherwise remain unaffected. (d) The affected party shall invoke this Section 1 by promptly notifying the other party in writing of the nature of this event on which it relies and the estimated extent and duration of the suspension. During the continuance of any such event the affected party shall not be obligated to purchase Goods from another source to fulfill its obligations hereunder. If the event relied upon is one which prevents the affected party from obtaining raw materials, the affected party agrees to give the other party the option for the duration of the inability of the affected party to obtain such raw materials, to convert the Contract into an exchange agreement under which the other party shall be entitled to obtain from the affected party a quantity of the Goods up to the quantity to which such other party is otherwise entitled (not to exceed the maximum quantity) and which can be produced on a stoichiometric basis from the quantities of the raw materials in short supply which such other party can arrange to be delivered to the affected party, and the affected party shall supply any other required raw materials. If the other party exercises such option, such other party shall, in addition to the raw material to be delivered to the affected party, and the affected party shall supply any other required raw materials. If the other party exercises such option, such other party shall, in addition to the raw material to be delivered by such other party pay the affected party per unit of the Goods delivered under the exchange a differential equal to the sales price per unit of the Goods otherwise then applicable under the contract less the then prevailing market value of the stoichiometric amount of the raw material delivered by the other party and contained in the unit of Goods delivered by the affected party under the exchange. During any such exchange period, the provisions hereunder applicable to exchanges shall apply. In such event, the affected party will, in addition to deliveries otherwise due the other party, deliver to the other party an amount of Goods equivalent to the quantity which may be made from the raw materials supplied by the other party, but the aggregate amount of Goods from either source shall not exceed the 10 11 total amount of Goods to which such other party was otherwise entitled before such option was exercised. 2. SHIPMENTS. Receiving party shall provide shipping party with reasonable advance notice of its desired schedule for shipment of Goods. If the transaction covered hereby is an exchange, orders for shipments of Goods shall be at a monthly rate as uniform as reasonably practicable, unless otherwise provided in this Contract. If the transaction covered hereby is a sales, the Seller shall not make any shipments under this Contract until released in accordance with separate purchase orders or releases issued by Buyer's using locations and Seller shall not be required to ship more than thirty percent (30%) of Seller's maximum annual quantity obligation in any quarter without Seller's prior consent. 3. LOADING AND UNLOADING. Shipping party agrees to load, and receiving party agrees to unload, carriers or transports furnished by the other party within, as applicable, any free time specified by tariffs on file with the applicable regulatory bodies or as otherwise specified by the carrier and to pay any charges resulting from its failure in this regard, provided either such party, as applicable, has been advised, prior to commencement of unloading, or loading, as the case may be, of carrier's permitted free time. A party shall not be excused from its obligations to pay such charges by the provisions of Section 1 if the event relied upon occurs after the carriers or transports have been accepted for loading or unloading, as the case may be. 4. IMBALANCES. This Section 4 shall have application only if the transaction covered hereby is an exchange. both parties shall endeavor, insofar as practicable, to keep the exchange in balance in accordance with the provisions of this Contract. Unless otherwise provided in this Contract, an over-delivering party shall not be required to make any further shipments hereunder if the Goods shipped pursuant to this Contract are not in balance until such imbalance is eliminated or reduced, by the shipment of Goods to the over-delivering party, to a level acceptable to the over-delivering party, even if the imbalance results from an event described in Section 1 hereof. If such imbalance does result from an event described in Section 1, the over-delivery party may, in lieu of awaiting for the imbalance to be brought into balance, require that any over-deliveries be returned or that the over- deliveries be paid for by the under-delivering party at such price as may be agreed upon. Such action by the over-delivering party shall not limit any rights or remedies of the over-delivering party. A party shall not be entitled to refuse to make shipments due to such an 11 12 imbalance if such imbalance has resulted from its failure to accept and receive Goods in accordance with the provisions of this Contract. Any such reduction or elimination of such an imbalance shall occur within thirty (30) days following a request from the over-delivering party that such imbalance be reduced or eliminated. Upon the termination or expiration of this Contract, the over-delivering party shall be entitled to receive, within sixty (60) days following the date of such expiration or termination, the quantity of Goods required to bring the exchange in balance and payment of any differential due to it. An imbalance may be eliminated by a cash payment to the over-delivering party, rather than by the shipment of Goods, if (i) any imbalance is less than one full load in accordance with the method of shipment provided for in this Contract or (ii) the obligation of the party making such payment to ship the Goods required to eliminate an imbalance has been suspended pursuant to Section 1 hereof. such cash payment, which shall be in addition to any payment due for any differential, shall be based upon the market price for the Goods, as determined by the over-delivering party, at the time such payment is made, or at the time such payment becomes due, whichever amount is greater. all provisions of this Contract shall be deemed applicable to deliveries made subsequent to the expiration or termination of this Contract for the purpose of eliminating an imbalance. 5. LIMITED WARRANTY and CHANGES IN SPECIFICATION. Subject to Section 6 and unless otherwise expressly provided herein, the shipping party warrants; (i) title to the Goods shipped and (ii) that the Goods shipped, shall conform to the shipping party's standard specifications (or to the attached specifications, if any). Subject to the preceding sentence and except as otherwise expressly provided herein, SHIPPING PARTY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE GOODS, whether used alone or in combination with any other material. Shipping party shall not make any change in raw materials or methods of manufacturing employed in producing the Goods without the prior approval of receiving party, unless any such change will have no affect on the continued suitability of the Goods to receiving party even though such Goods would continue to meet specifications. 6. LIMITATION OF LIABILITY. (a) Within fifteen (15) days after actual receipt by the receiving party at its consuming location of each shipment of the Goods, the receiving party shall examine such Goods for any damage, defect or shortage. all claims for any cause whatsoever (whether such cause be based in Contract negligence, 12 13 strict liability, other tort or otherwise) shall be deemed waived unless made in writing and received by the shipping party within thirty (30) days after such actual receipt of the Goods by the receiving party in respect to which such claim is made, provided that s to any such cause not reasonably discoverable within such thirty (30) day period (including that discoverable only in processing, further manufacture, other use or resale), any claim shall be made in writing and received by the shipping party within ninety (90) days after such actual receipt by the receiving party of the Goods in respect to which such claim is made, or within thirty (30) days after the receiving party learns of the facts giving rise to such claim, whichever shall first occur. Any claim for non- delivery of such Goods shall be deemed waived unless made in writing and received by the party alleged to have failed to deliver such Goods within ninety (90) days following the expiration or termination of this Contract. Failure of a party to receive written notice of any claim within the applicable time period shall be deemed an absolute and unconditional waiver by the other party of such claim irrespective of whether the facts giving rise to such claim shall have then been discovered or whether processing, further manufacture, other use or resale of the Goods shall have then taken place. (b) THE RECEIVING PARTY'S EXCLUSIVE REMEDY SHALL BE FOR DAMAGES, AND THE SHIPPING PARTY'S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY CAUSE WHATSOEVER (WHETHER SUCH CAUSE BE BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR OTHERWISE) SHALL IN NO EVENT EXCEED THE THEN PREVAILING CONTRACT MARKET PRICE, IF THE TRANSACTION IS AN EXCHANGE, OR THE THEN PREVAILING CONTRACT PRICE, IF THE TRANSACTION IS A SALE, FOR THE QUANTITY OF GOODS IN RESPECT TO WHICH SUCH CAUSE ARISES, OR, AT SHIPPING PARTY'S OPTION, THE REPAIR OR REPLACEMENT OF SUCH GOODS, AND IN NO EVENT SHALL THE SHIPPING PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES RESULTING FROM ANY SUCH CAUSE. The shipping party shall not be liable for, and the receiving party assumes liability for, all personal injury and property damage connected with the transportation, possession, processing, further manufacture, other use or resale of the Goods by or on behalf of the receiving party or its customers, whether the Goods are used alone or in combination with any other material or are resold by receiving party. transportation charges for the return of the Goods shall not be paid unless authorized in advance by the party initially shipping the Goods. 13 14 (c) If the shipping party furnishes technical or other advice to the receiving party, whether or not at the request of the receiving party, with respect to processing, further manufacture, other use or resale of the Goods, the shipping party shall not be liable for, and the receiving party assumes all risk of, such advice and the results thereof. 7. TITLE AND RISK OF LOSS. Unless otherwise provided in this Contract, title to and risk of loss of Goods shall pass to the receiving party and delivery by the shipping party shall take place (a) in the case of delivery by pipeline, immediately after the Goods pass the last flange on the shipping party's property, (b) in the case of delivery into tankcars, upon delivery of the loaded tankcars by the shipping party to the carrier outside shipping party's property (c) in the case of delivery into tanktrucks or other trucks, immediately after such trucks leave the shipping party's property, and (d) in the case of delivery into barges or ship tankers immediately after the Goods pass the last flange in the shipping party's loading line. 8. PATENTS. Subject to Section 6 and unless otherwise expressly provided herein, the shipping party warrants that the Goods supplied pursuant to this Contract, except for those made for the receiving party according to the receiving party's specifications; provided, however, Monsanto (as Buyer or receiving party) shall not assert against Sterling (as Seller or shipping party) any claim for infringement based on Sterling's use of the technical Information as defined in and licensed to Sterling under the License Agreement, (Exhibit 2.1(a) to the Asset Purchase Agreement between Monsanto and Sterling) dated the date hereof, in the operation of Sterling's plant to produce the Goods in accordance with procedures employed in such plant by Monsanto as of the date of the License Agreement. This warranty is given upon condition that the receiving party promptly notify the shipping party of any claim or suit involving the receiving party in which such infringement is alleged and that, if the shipping party is affected, the receiving party permit the shipping party to control completely the defense or compromise of any such allegation of infringement. the shipping party does not warrant that the use of the Goods or any material made therefrom, whether the Goods are used alone or in combination with any other material, will not infringe a patent. The shipping party reserves the right to terminate the shipping party's warranty under this Section 8 at any time with respect to any undelivered Goods. In the event of such termination, the receiving party may thereafter refuse acceptance of such undelivered Goods and the receiving party may, within forty-five (45) days following such termination, terminate this Contract upon not less than thirty (30) days' written notice to the other party. 14 15 9. FREIGHT AND TAXES. Any new tax or any increase in an existing tax or governmental charge, paid by the shipping party, hereafter becoming effective imposed upon the sale, exchange or delivery of the Goods, such as sales tax, use tax, retailer's occupational tax, but excluding taxes based on production or income such as value added, gross receipts or franchise taxes, may, if the transaction covered hereby is a sale, be added to and included as a part of the price herein specified, provided that shipping party invoices such new charges within 90 days following the effective date of their imposition; and, if the transaction covered hereby is an exchange, and, if the effect of such new or increased tax or charge is to increase the cost to the shipping party of exchanging or delivering the Goods or procuring materials used therein, shipping party may notify the receiving party thereof, in writing, requesting an adjustment to the differential as a result of such factors. If the parties are unable to agree upon a satisfactory revision to such differential within forty-five (45) days following receipt of such notice, the shipping party may terminate this Contract upon thirty (30) days' written notice to the other party. Shipping party shall be entitled initially to assert that any Superfund tax (or tax of similar purpose or effect) or any increase in any such tax, should become a part of the differential to be paid, if the transaction covered hereby is an exchange, or should be added to the price for the Goods, if the transaction covered hereby is a sale, and to include the amount thereof in its invoices for the relevant Goods; provided however, that the shipping party shall not be entitled to continue to collect any such tax, or increase therein, unless such tax, or increase therein, is generally then being taken into account and being included in the differential, or added to the price, as the case may be, by other sellers or exchangers of the Goods covered hereby, and if such other sellers or exchangers are not generally collecting such tax, or increase therein, shipping party shall no longer attempt to collect any such tax, or increase therein, hereunder and there shall be a prompt refund of any amounts theretofore collected therefore from the receiving party. Except as otherwise expressly provided in the special terms and conditions which are applicable to this Contract, freight from the point of passage of title provided for in Section 7 for the Goods shall be for the account of receiving party. 10. WEIGHTS. Unless otherwise specifically provided for herein, the shipping party's weights or measurements shall govern unless proven in error. 11. COMPLIANCE WITH CERTAIN LAWS. Subject to Section 6 and unless otherwise expressly provided herein, the Goods shall be 15 16 produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, and Executive Order 11246. 12. ASSIGNMENT. Subject to the special terms and conditions applicable to this Contract and except as provided in the Asset Purchase Agreement of even date herewith between the parties, neither party shall (by operation of law or otherwise) assign its rights or delegate its performance hereunder without the prior written consent of the other party, and any attempted assignment or delegation without such consent shall be void. To the extent assignment is permitted hereunder this Contract shall be binding on any permitted assignee. 13. MONTHLY REPORTS. If the transaction covered hereby is an exchange, each party shall, within thirty (30) days following the end of each month, provide the other party with a report stating the quantities delivered and received during the month and the calendar year pursuant to this Contract, as well as the exchange balances for such periods. the parties shall promptly attempt to reconcile any discrepancies apparent from such reports. 14. MEET COMPETITION. (a) If the transaction covered hereby is a sale and if from time to time Monsanto can purchase Goods of functionally equivalent quality at a lower delivered cost than the delivered cost of the Goods then in effect hereunder and in an amount equal to at least Monsanto's annual purchase obligation hereunder for the then remaining balance of the Contract period, and Monsanto gives Sterling written notice thereof, Monsanto may purchase such Goods, unless within fifteen (15) days of receipt by Sterling of said notice Sterling shall meet such lower delivered cost for an equal quantity of Goods thereafter sold hereunder. (b) If the transaction covered hereby is an exchange and if from time to time Monsanto can obtain, by exchange or conversion, Goods of functionally equivalent quality at a lower delivered cost than the delivered cost of the Goods then in effect hereunder, and in an amount equal to at least Monsanto's annual exchange obligation hereunder, for the then remaining balance of the contract period, and Monsanto gives Sterling written notice thereof, Monsanto may obtain such Goods by exchange or conversion, unless within fifteen (15) days of receipt by Sterling of said notice, Sterling shall meet such lower delivered cost for an equal quantity of Goods thereafter exchanged hereunder. (c) In either event, any quantity so obtained by Monsanto from another source shall be deducted from Monsanto's annual obligation hereunder, but the contract otherwise shall remain unaffected. 16 17 15. MISCELLANEOUS. (a) Governing Law. The validity, interpretation and performance of this Contract and any dispute connected herewith shall be governed and construed in accordance with the laws of the state of Texas. Buyer (Sterling) has consented to service of process in the State of Missouri. (b) Set Off. Monsanto (or Buyer, as the case may be, and for purposes of this section 15 (b) herein called "Monsanto") may retain from any moneys due or sums payable to Seller (or Exchanger or sterling, as the case may be, herein called "Sterling") under this Contract and set off any such moneys or sums against any moneys, sums or claims owing by or due from Monsanto to third parties, which Sterling is not contesting in good faith and which result in any manner from Sterling's deficient performance or failure to perform under any agreements assigned to Sterling pursuant to the assets Purchase agreement between Monsanto and sterling. (c) Notices. Any notice required or permitted to be given under this Contract shall be deemed sufficient if (i) in writing and (ii) served either by (a) depositing the same in the United States mail, property addressed as provided below, postage prepaid, registered or certified mail, and with return receipt requested, (b) delivering the same in person, or (c) sending a prepaid telegram of the same, confirmed by notice deposited in the mail in the manner provided in this Section 15(c). Unless otherwise provided in this Contract, any notice deposited in the mail in the manner provided in this Section 15(c) shall be effective upon the expiration of three days after the date on which it is so deposited, and any notice given in any other manner shall be effective only if and when it is received by the addressee. for the purposes of notice hereunder, the addresses of the parties hereto shall be as follows: BUYER: Monsanto Company 800 N. Lindbergh St. Louis, Missouri 63167 Attn: Director, Purchasing Monsanto Chemical Co. SELLER: Sterling Chemicals, Inc. 1200 Smith, Suite 1900 Houston, Texas 77002 Attn: Vice President, Commercial 17 18 Any party hereto may change its address for the purpose of notice hereunder by giving written notice of such change of address to the other party as specified in this Section 15(c) (d) Entire and Only Agreement. This Contract and all other related documents and instruments executed and delivered pursuant hereto constitute the entire and only understanding and agreement among the parties hereto with respect to the subject matter hereof and supersede all prior negotiations, understandings and agreements among such parties relating to the same subject matter. (e) Amendments. No alterations, modifications, amendments or changes of this Contract or any other related document or instrument executed and delivered pursuant hereto shall be effective or binding on any party hereto, unless the same shall be in writing and executed by all of the parties hereto. (f) Severability. If a court of competent jurisdiction declares that any provision of this Contract or any other related document or instrument executed and delivered pursuant hereto is illegal, invalid or unenforceable, then such provision shall be modified automatically to the extent necessary to make such provision fully enforceable. If such court does not modify any such provision as contemplated herein, but instead declares it to be wholly illegal, invalid or unenforceable, then such provision shall be severed from this Contract or such other document or instrument, and such declaration shall in no way affect the legality, validity and enforceability of the other provisions of this Contract or such other document or instrument to which such declaration does not relate. In such event, this Contract or such other document or instrument shall be construed as if it did not contain the particular provision held to be illegal, invalid or unenforceable, the rights and obligations of the parties hereto shall be construed and enforced accordingly, and this Contract otherwise shall remain in full force and effect. (g) Captions. The captions contained in this Contract are for the purpose of reference only and shall not affect in any way the meaning, interpretation or scope of this Contract. (h) Waivers. Any failure of any party hereto to comply with any of its obligations, agreements or conditions as set forth herein may be expressly waived in writing by the other party. No such waiver shall operate as a waiver of any other obligation, agreement or condition and the failure to enforce any provision hereof shall not 18 19 operate as a waiver of such provision or of any other provisions hereof. (i) Multiple Counterparts. This Contract may be executed by the parties hereto in multiple counterparts, each of which shall be deemed to be an original for all purposes, and all of which together shall constitute one and the same instrument. (j) Invoices. Shipping party shall invoice receiving party for any differential due with respect to deliveries hereunder, or, if the transaction is a sale, for the purchase price due with respect to deliveries hereunder, and such invoices shall be paid net thirty (30) days from date of invoice. 7/27/94 19 20 EXHIBIT A1 ACRYLONITRILE SPECIFICATIONS MONSANTO CHEMICAL COMPANY--DECATUR
PROPERTY UNIT SPECIFICATION TARGET METHOD -------- ---- ------------- ------ ------ Appearance ---- Clear & Free ----- 602.282 Water wt% 0.25 - 0.45 ----- 602.204 Color APHA 10 max 5 max 602.009 Oxazole ppm 250 max 40 max 602.206 Acetone ppm 75 max 50 max 602.205 Acetonitrile ppm 300 max ----- 602.205 Acrolein ppm 20 max 10 max 602.205 Inhibitor ppm 35-45 ----- 602.216 Iron ppm 0.2 max 0.1 max TCQA-46 Copper ppm 0.1 max ----- TCQA-46 Propionitrile ppm 100 max 40 max 602.205 Aldehydes, as ACH ppm 35 max ----- TCQA-138 Methyl acrylonitrile ppm 200 max ----- 602.205 Cis-crotononitrile ppm report ppm ----- 602.205 Acidity, as acetic acid ppm report ppm 15 max 602.210 Benzene ppm 50 max ----- 602.205 Peroxides ppm 0.2 max ----- 602.220 Ph - 5% Aq.Sol 6.6 - 7.3 ----- 602.209
21 EXHIBIT A2 ACRYLONITRILE SPECIFICATIONS MONSANTO CHEMICAL COMPANY--PORT PLASTICS
PROPERTY UNIT SPECIFICATION TARGET METHOD - ------------------------------------------------------------------------------------------------- Appearance ---- Clear & Free ------ 602.282 Color APHA 5 max ------ 602.009 Water wt% 0.25 - 0.45 ------ 602.204 Aldehydes, as ACH ppm 35 max ------ TCQA - 138 Nonvolatile matter ppm 100 max 50 max 602.219 Inhibitor ppm 35-45 ------ 602.216 Acidity, as acetic ppm 15 max ------ 602.210 acid HCN ppm 5 max ------ 602.208 Iron ppm 0.1 max ------ TCQA-46 Peroxides, as H202 ppm 0.2 max ------ 602.220 Acetone ppm 50 max ------ 602.205 Acetonitrile ppm 300 max 200 max 602.205 Copper ppm 0.1 max ------ TCQA-46 Oxazole ppm 100 max 40 max 602.206 Acrolein ppm 15 max 10 max 602.205 Propionitrile ppm 50 max 40 max 602.205 Methyl acrylonitrile ppm 150 max 120 max 602.205 PH - 5% Aq. Sol. 6.6-7.3 ------ 602.209
22 EXHIBIT B MONSANTO CHEMICAL COMPANY ANHYDROUS AMMONIA COMMERCIAL GRADE - -------------------------------------------------------------------------------- PRODUCT SPECIFICATION
CHARACTERISTICS LIMITS METHOD NO. --------------- ------ ---------- Water 0.25% min. AQC-268 A-82 0.50% max. Oil 5 ppm max. 42-7-2-64 %NH2 99.5 min. Calculated Iron (as Fe) 0.2 ppm* 42-7-2-64
*This is a typical value, not a specification. B.P. of anhydrous ammonia -- 33 degrees C W.P. of anhydrous ammonia -- 77 degrees C Anhydrous ammonia out of cryogenic storage normally contains 0.05 ppm CL - -------------------------------------------------------------------------------- SUBMITTED TO DATE 23 4/22/86 EXHIBIT C TO ACRYLONITRILE EXCHANGE CONTRACT PROPYLENE SPECIFICATIONS
Monsanto Test Specification Method Property - ------------- ------ -------- Propylene, Wt. % 92, Min. 304 Paraffins, Wt. % 8, Max. 304 C2s, Wt. % 0.4, Max. 304 C4s, Wt. % 0.2, Max. 304 Total diunsaturates, Wt. ppm (including acetylene, methyl- acetylene, allene) 100, Max. 304 Total H, O, N, CO, CO2 100, Max. 311 Wt. ppm 475 318 Halides (as C1), 10, Max. G-23 Wt. ppm Total Sulfur (as S), Wt. ppm 10, Max. G-27 Water, Wt. ppm 50, Max. On-stream analyzer MeOH, Wt. ppm 50, Max. 371 Green Oil, Wt. ppm 10, Max. 372
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