-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, K9a6eP96/FHs74OhqtFUxbP6QYugH5/kC3RUeqNpLWdqNeDejMx7VBsGKje31H7H nKrzks118pL2q6EysUxmGg== 0000897101-96-000822.txt : 19960926 0000897101-96-000822.hdr.sgml : 19960926 ACCESSION NUMBER: 0000897101-96-000822 CONFORMED SUBMISSION TYPE: 10-K405/A PUBLIC DOCUMENT COUNT: 2 CONFORMED PERIOD OF REPORT: 19960131 FILED AS OF DATE: 19960925 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: ULTRA PAC INC CENTRAL INDEX KEY: 0000813134 STANDARD INDUSTRIAL CLASSIFICATION: CONVERTED PAPER & PAPERBOARD PRODS (NO CONTAINERS/BOXES) [2670] IRS NUMBER: 411581031 STATE OF INCORPORATION: MN FISCAL YEAR END: 0131 FILING VALUES: FORM TYPE: 10-K405/A SEC ACT: SEC FILE NUMBER: 000-18252 FILM NUMBER: 96634171 BUSINESS ADDRESS: STREET 1: 21925 INDUSTRIAL BLVD CITY: ROGERS STATE: MN ZIP: 55374 BUSINESS PHONE: 6124288340 MAIL ADDRESS: STREET 1: 21925 INDUSTRIAL BLVD CITY: ROGERS STATE: MN ZIP: 55374 10-K405/A 1 FORM 10-K/A (AMENDMENT NO. 1) FOR ULTRA PAC, INC. SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 10-K/A (AMENDMENT NO. 1) _X_ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 (FEE REQUIRED) FOR THE FISCAL YEAR ENDED JANUARY 31, 1996 ___ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED) For the transaction period from _______ to ________ Commission File Number: 0-18252 ULTRA PAC, INC. (Exact name of Registrant as specified in its charter) Minnesota 41-1581031 (State or other jurisdiction of (I.R.S. Employer incorporation or organization) Identification No.) 21925 Industrial Boulevard Rogers, Minnesota 55374 (Address of Principal executive offices) (612) 428-8340 (Registrant's telephone number, including area code) SECURITIES REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT: NONE SECURITIES REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT: Common Stock, no par value (Title of Class) 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. _X_ YES ___ 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 this Form 10-K or any amendment to this Form 10-K. _X_ As of March 31, 1996, 3,766,215 shares of Common Stock, no par value per share, were outstanding, and the aggregate market value of the shares of Common Stock (based upon the closing sales price on such date reported by NASDAQ) held by nonaffiliates of the Registrant was approximately $9,556,815. DOCUMENTS INCORPORATED BY REFERENCE Portions of the Registrant's Definitive Proxy Statement for its Annual Meeting of Shareholders to be held July 16, 1996, are incorporated by reference into Part III. PART IV. ITEM 14 - EXHIBITS, FINANCIAL STATEMENTS, SCHEDULES, AND REPORTS ON FORM 8-K 3. (a) Exhibits The exhibits required to be a part of this Report are listed in the Index to Exhibits which follows the Financial Statement Schedules. A copy of these Exhibits will be furnished at a reasonable cost to any person who is a shareholder of the Company as of May 17, 1996 upon receipt from any such person of a written request for any such Exhibit. Such request should be sent to Ultra Pac, Inc., 21925 Industrial Blvd., Rogers, Minnesota 55374, Attention: Chief Financial Officer. All exhibits identified herein were previously filed on Form 10-K. This Amendment No. 1 to Form 10-K/A includes Exhibit 10.56, Material supply agreement with Eastman Chemical Company, dated January 2, 1996, in an amended, less-redacted version, which is filed herewith. 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. ULTRA PAC, INC. Dated: September 25, 1996 By: /s/ Calvin Krupa Calvin Krupa Its: President and Chief Executive Officer Pursuant to the requirements of the Securities Exchange Act of 1934, this Report has been signed below by the following persons on behalf of the Registrant and in the capacities and on the dates indicated: Signature Title Date /s/ Calvin Krupa President, Chief September 20, 1996 Calvin Krupa Executive Officer and Director /s/ Brad C. Yopp Chief Financial September 20, 1996 Brad C. Yopp Officer (Principal Accounting Officer) /s/ James A. Thole Secretary and September 20, 1996 James A. Thole Director John F. DeBoer Director /s/ Thomas F. Rains Director September 20, 1996 Thomas F. Rains /s/ Frank I. Harvey Director September 20, 1996 Frank I. Harvey No annual report or proxy materials have been sent to security holders. An annual report for the Company's fiscal year ended January 31, 1996, will be forwarded to shareholders. 3. (A) EXHIBITS
All exhibits identified herein were previously filed on Form 10-K. This Amendment No. 1 to Form 10-K/A includes Exhibit 10.56, Material supply agreement with Eastman Chemical Company, dated January 2, 1996, in an amended, less-redacted version, which is filed herewith. 3.1 Restated Articles of Incorporation (Exhibit No. 3.1) (3) 3.2 Bylaws (Exhibit No. 3.2) (1) 10.2 Employment Agreement with Calvin Krupa, dated June 20, 1989 (Exhibit No. 10.2) (2) 10.3 First Amendment to Employment Agreement, dated March 31, 1990, with Calvin Krupa (Exhibit No. 10.17) (4) 10.4 Second Amendment to Employment Agreement, dated January 3, 1992, with Calvin Krupa (Exhibit No. 10.4) (9) 10.9 1991 Stock Option Plan (exhibit No. 10.3) (7) 10.15 Lease Agreement with Charles J. Van Heel for 21925 Industrial Boulevard, Rogers, Minnesota dated July 23, 1991 (Exhibit No. 10.2) (8) 10.16 Amendment dated July 23, 1991, to Lease Agreement with Charles J. Van Heel for 21925 Industrial Boulevard, Rogers, Minnesota, dated July 23, 1991 (Exhibit No. 10.3) (8) 10.17 Outside Directors' Option Plan (Exhibit No. 10.17) (9) 10.19 Purchase Agreement and Contract For Deed with Clement L. Sharp dated October 29, 1992 (Exhibit 10.2) (10) 10.20 Purchase Agreement with Mr. Chuck Van Heel dated December 7, 1992 (Exhibit No. 10.3) (10) 10.22 Equipment Note Agreement with Norwest Equipment Finance, Inc., dated March 22, 1993 (Exhibit No. 10.22) (11) 10.23 Lease Agreement with MLH Partners, dated April 8, 1992 (Exhibit 10.23) (11) 10.24 Equipment Note Agreement with Norwest Equipment Finance Inc., dated April 14, 1993 (Exhibit 10.24) (11) 10.25 Letter of Intent for real estate mortgage agreement with AmeriBank dated March 17, 1993 (Exhibit 10.25) (11) 10.26 Amendment dated June 1, 1993, to Lease Agreement with Charles J. Van Heel for 21925 Industrial Boulevard, Rogers, Minnesota, N.A. dated May 26, 1992 (Exhibit No. 10.1) (12) 10.27 Real Estate Mortgage Agreement with AmeriBank dated June 1, 1993 (Exhibit No. 10.2) (12) 10.29 Assumption Agreement between Ultra Pac, Inc. and Charles J. Van Heel and Marilyn Van Heel, dated June 3, 1993 and the Mortgage Note between Charles J. Van Heel and W.J.D. & Co. (Exhibit No. 10.2) (13) 10.30 Equipment Lease Agreement with the CIT Group dated August 30, 1993 (Exhibit No. 10.1) (14) 10.31 Equipment Note Agreement with Norwest Equipment Finance, Inc., dated October 19, 1993 (Exhibit No. 10.2) (14) 10.32 Equipment Note Agreement with Norwest Equipment Finance, Inc., Dated November 8, 1993 (Exhibit No. 10.3) (14) E1 10.33 Amendment dated December 1, 1993 to Lease Agreement with ML Limited Partnership dated April 8, 1993 (Exhibit 10.33) (15) 10.34 Patent, Technical Information and Technical Assistance Agreement with Shell Oil Company dated May 28, 1993 (Exhibit 10.34) (15) 10.35 Interim Funding Agreement with Norwest Equipment Finance dated February 3, 1994 (Exhibit 10.35) (15) 10.37 Equipment Note Agreement with Norwest Equipment Finance, Inc. dated May 24, 1994 (Exhibit 10.1) (16) 10.38 Equipment Lease Agreement with the CIT Group dated February 1, 1994. (Exhibit 10.2) (16) 10.39 Credit and Security Agreement with Norwest Bank, Minnesota N.A. dated June 13, 1994. (Exhibit 10-3) (16) 10.40 Equipment Note Agreement with Norwest Equipment Finance, Inc. dated October 17, 1994 (Exhibit 10.1) (17) 10.41 Leasehold Lease Agreement with Linmark Financial Group, Inc. dated October 20, 1994 (Exhibit 10.2) (17) 10.42 Lease Agreement with Charles J. Van Heel, dated November 20, 1994, for 22101 Industrial Blvd., Rogers, Minnesota (Exhibit 10.3) (17) 10.43 Lease Agreement with Charles J. Van Heel, dated November 20, 1994, for 22101 Industrial Blvd., Rogers, Minnesota (Exhibit 10.4) (17) 10.44 Second Amendment dated November 2, 1994, to Lease Agreement with Charles J. Van Heel for 21925 Industrial Blvd., Rogers, Minnesota (Exhibit 10.5) (17) 10.45 Waiver dated December 14, 1994, related to Credit and Security Agreement with Norwest Bank, Minnesota N.A. dated June 13, 1994 (Exhibit 10.6) (17) 10.46 Loan and Security Agreement with the CIT Group/Equipment Financing, Inc., dated March 10, 1995 (Exhibit 10.46) (18) 10.47 Amendment dated July 1, 1994 to the Credit and Security Agreement with Norwest Bank, Minnesota, N.A. dated June 13, 1994 (Exhibit 10.47) (18) 10.48 Amendment dated March 7, 1995 to the Credit and Security Agreement with Norwest Bank, Minnesota, N.A. dated June 13, 1994. (Exhibit 10.48) (18) 10.49 Waiver dated March 2, 1995, related to Credit and Security Agreement with Norwest Bank, Minnesota N.A. dated June 13, 1994 (Exhibit 10.49) (18) 10.50 Waiver dated March 3, 1995, related to Real Estate Mortgage Agreement with AmeriBank, dated June 1, 1993 (Exhibit 10.50) (18) 10.51 Amendment dated June 1, 1995 to the Credit and Security Agreement with Norwest Bank, Minnesota N.A., dated June 13, 1994. (Exhibit 10.1) (19) 10.52 Amendment dated June 30, 1995 to the Credit and Security Agreement with Norwest Bank, Minnesota N.A., dated June 13, 1994. (Exhibit 10.1) (20) 10.53 Waiver dated September 7, 1995, related to the Credit and Security Agreement with Norwest Bank, Minnesota N.A., dated June 13, 1994. (Exhibit 10.2) (20) E2 10.54 Amendment dated October 8, 1995 to the Credit and Security Agreement with Norwest Bank, Minnesota N.A., dated June 13, 1994. (Exhibit 10.1) (21) 10.55 Waiver dated December 12, 1995 related to the Credit and Security Agreement with Norwest Bank, Minnesota N.A., dated June 13, 1994. (Exhibit 10.2) (21) * 10.56 Material supply agreement with Eastman Chemical Company, dated January 2, 1996 (confidential treatment has been requested with respect to selected portions of this exhibit). 10.57 Equipment note agreement with Wentworth Capital Corporation dated December 7, 1995. 10.58 Financing Commitment with Norwest Credit, Inc. dated April 25, 1996. 10.59 Financing Commitment with Norwest Bank Minnesota N.A. dated April 25, 1996. 10.60 Commitment Letter, dated April 25, 1996, to Amend the Security Agreement on Promissory Note with USL Capital Corporation dated December 20, 1994. 10.61 Commitment Letter, dated April 25, 1996, to Amend the Loan and Security Agreement with The CIT Group/Equipment Financing, Inc. dated March 10, 1995. 10.62 Commitment letter, dated April 25, 1996, to Amend the Equipment Note Agreement with Norwest Equipment Finance dated May 24, 1994. 10.63 Commitment letter, dated April 26, 1996, to Amend the Equipment Note Agreements with Norwest Equipment Finance dated March 22, 1993, April 14, 1993, October 19, 1993, November 8, 1993 and October 17, 1994 respectively. 10.64 Waiver dated April 26, 1996, related to the Credit and Security Agreement with Norwest Bank, Minnesota N.A. dated June 13, 1994. 10.65 Waiver dated April 26, 1996, related to Real Estate Mortgage Agreement with AmeriBank, dated June 1, 1993. 23.1 Consent of Independent Certified Public Accountants (originally misnumbered as Exhibit 24.1).
- ---------------------------------------------------------------- * Filed herewith (1) Incorporated by reference to the specified exhibit to the Form S-18 Registration Statement, dated August 15, 1988, Registration No. 33-23631C. (2) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended July 31, 1989. (3) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended October 31, 1989. (4) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended January 31, 1990. (5) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended July 31, 1990. E3 (6) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended April 30, 1991. (7) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended July 31, 1991. (8) Incorporated by reference to the specified exhibit to the Registration Statement on Form S-2 dated April 3, 1992, Registration No. 33-46937. (9) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended April 30, 1992. (10) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended October 31, 1992. (11) Incorporated by reference to the specified exhibit to the Form 10-K for the year ended January 31, 1993. (12) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended April 30, 1993. (13) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended July 31, 1993. (14) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended October 31, 1993. (15) Incorporated by reference to the specified exhibit to the Form 10-K for the year ended January 31, 1994. (16) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended April 30, 1994. (17) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended October 31, 1994. (18) Incorporated by reference to the specified exhibit to the Form 10-K for the year ended January 31, 1995. (19) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended April 30, 1995. (20) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended July 31, 1995. (21) Incorporated by reference to the specified exhibit to the Form 10-Q for the quarter ended October 31, 1995. EX-10.56 2 EXHIBIT 10.56 Exhibit 10.56 Eastman Chemical Company P.O. Box 431 EASTMAN Kingsport, Tennessee 37662 [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] Mr. Cal Krupa Ultra Pac, Inc. 21925 Industrial Blvd. Rogers, Minnesota 55374-9474 Dear Cal: As you are aware, we are interested in developing a partnership arrangement with Ultra Pac which would provide Ultra Pac with an adequate supply of PET at a good price and eliminate the necessity of searching for material supply and provide better pricing. This comes at a time when pressure is on from competition in the marketplace for OPS products, and we feel this arrangement would be beneficial for both Ultra Pac and Eastman. We very much appreciate the opportunity to offer the following proposal to you. PROPOSED TERMS OF AGREEMENT DURATION: 11/1/95 - 12/31/98 (three years) MATERIALS: Eastapak PET Copolyester 9921 (APET) Eastapak PET Polyester 12822 (CPET) And other materials as mutually agreed upon by Ultra Pac and Eastman. QUANTITY: 1996 [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] of 9921 and 12822 in 1996. The maximum quarterly commitment by Eastman can be no more than 1/4 of the [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] yearly maximum, but Eastman will supply over the quarterly maximum if material availability permits. [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] Ultra Pac will forecast material requirements by product each quarter so negotiations between Ultra Pac and Eastman can be concluded 60 days prior to the beginning of any calendar quarter. Ultra Pac intends for Eastman to become it's [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] supplier of prime grade polyester raw materials. Consistent with this, Ultra Pac will give Eastman [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] beginning 11/1/95. If in the event that Eastman rejects an order due to inability to supply, Ultra Pac will be free to purchase prime polyester grades from competitive suppliers [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] Malcolm Baldridge National Quality Award 1993 Winner Eastman Chemical Company Mr. Cal Krupa Page 2 [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] If in the event that Ultra Pac is unwilling to purchase the material, Eastman [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] clause, the terms, and duration of this agreement remain in effect. 1997 [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] Ultra Pac desires for Eastman to [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] of prime grade polyester raw materials. Ultra Pac and Eastman will meet [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] to assess the success of working together under the details of the 1996 section of this contract and will discuss [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] nevertheless, the [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] relationship will continue over this period. Price: Effective [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] Eastman's price to Ultra Pac for bulk 190,000-pound RC purchases of Eastapak PET copolyester 9921 will be [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] and for the same quantities and packaging of Eastapak PET polyester 12822 will be [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] Standard net 30 days from date of invoice (shipment) with [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] Eastman's standard Terms and Conditions to apply. See attached. [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] WIDE SPECIFICATION MATERIALS: Eastman will work with Ultra Pac to increase Ultra Pac's ability to use wide specification product in their process. Wide specification material [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] will be made available to Ultra Pac at pricing consistent with ongoing market competitive prices. Mr. Cal Krupa Page 3 [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] CONFIDENTIALITY: The terms of this agreement apply solely to transactions between Ultra Pac and Eastman. [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] Cal, please review this revised proposal. If you agree, please sign and date both originals of this contract offer and forward them back to my attention in Kingsport. I will make sure that they are countersigned on our end and will send an original back to you for your record. I can be reached at (p) 800-327-8626 and (f) 423-224-0044 if you have any questions or comments. I welcome your comments and suggestions. Sincerely, Paul R. Anderson Business Market Manager, Food and Consumer Packaging Specialty Packaging Plastics Business Organization Eastman Chemical Company ULTRA PAC, INC. EASTMAN CHEMICAL COMPANY /s/ Cal Krupa /s/ (illegible) Name Name Chief Executive Officer VP and General Manager Title Title [TEXT DELETED DUE TO CONFIDENTIAL [TEXT DELETED DUE TO CONFIDENTIAL TREATMENT] TREATMENT] Date Date cc: Mr. Jerry Flora Eastman Chemical Company - -------------------------------------------------------------------------------- CONDITIONS OF SALE 1. PRICES Prices for the materials sold under this agreement shall be Eastman's prices in effect on the date of shipment, unless otherwise agreed in writing. Buyer will also pay any applicable taxes. If payments are not made when due, or if Eastman has reason to believe that Buyer has unsatisfactory financial responsibility, Eastman may require cash in advance or other payment terms, suspend shipments, or cancel this agreement. 2. LIMITED WARRANTY Eastman warrants that the materials will meet its written specifications and were produced in compliance with the requirements of the Fair Labor Standards Act of 1938, as amended, and all other federal and state laws and regulations applicable to the materials and Eastman's sale of them under this agreement. Eastman also warrants that it has good and free title to the materials and that the materials will not infringe any valid claim of any United States' patent covering the materials themselves, but Eastman does not warrant against infringement by reason of the use of the materials in combination with other products or in the operation of any process. Eastman may discontinue deliveries of any materials, the manufacture, sale or use of which in its opinion would involve patent infringement. EASTMAN MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. 3. INSPECTION; LIMITATION OF LIABILITY; BUYER'S REMEDY Buyer must promptly inspect the materials upon their delivery and must notify Eastman in writing of any claims within 45 days of their date of delivery. Eastman's maximum liability and Buyer's sole remedy in the event of delivery of materials that fail to comply with the terms of this agreement, or for any other breach by Eastman under this agreement, is a refund of the purchase price or, at Buyer's option and subject to availability, supply of replacement materials, freight charges to be borne by Eastman. IN NO EVENT SHALL EITHER EASTMAN OR BUYER BE LIABLE FOR ANY CONSEQUENTIAL OR OTHER INCIDENTAL DAMAGES UNDER THIS AGREEMENT, WHETHER OR NOT CAUSED BY SUCH PARTY'S NEGLIGENCE. 4. TECHNICAL INFORMATION; HAZARDS AND PRECAUTIONARY PROCEDURES Any technical information or assistance Eastman or any of its affiliates provides is given and accepted at Buyer's risk and is not a warranty or a specification. Buyer agrees that it will familiarize itself with all hazards and precautionary procedures with respect to the handling, transportation or use of the materials or products made in whole or in part from the materials, and the containers in which such materials or products are shipped, and will manage the materials, products and containers accordingly. Buyer will forward any product safety information provided by Eastman or its affiliates to Buyer's employees, to all others who handle the materials, and to its customers. Buyer agrees, notwithstanding anything herein to the contrary, to indemnify Eastman and its affiliates for any claims made against Eastman or its affiliates and for associated damages and expenses (including reasonable attorneys' fees and expenses), to the extent caused by Buyer's failure to familiarize itself with such hazards and precautionary procedures, to manage accordingly, or to forward such information. 5. QUANTITY On bulk marine vessel shipments, claims may not be made for shortages of less than 1.0% of the net weight. On bulk tank trucks, bulk tank cars, or packaged shipments, claims may not be made for shortages of less than 0.5% of net weight. Delivery of within 10% of the quantity requested shall be accepted by Buyer as complying with the order, although Buyer must pay for only the quantity actually delivered. 6. FORCE MAJEURE; GOVERNMENTAL ACTIONS Neither Buyer nor Eastman shall be liable for failure of such party to perform where such failure is caused by war, fire, accident, strike, labor trouble or shortages, equipment breakdown, governmental laws, regulations, orders or decrees (including those relating to environmental matters), unavailability of materials, containers or transportation, or acts of God or other causes beyond such party's control, and upon the occurrence of any such event pertaining to Eastman, Eastman may allocate any available material among its customers, its internal needs and its affiliates without such allocation constituting a default hereunder. If a governmental action substantially affects Eastman's right to establish prices or transportation terms, Eastman may terminate this agreement on 30 days' notice. 7. TITLE; CONTAINERS AND RAILCARS Unless it is otherwise indicated elsewhere in this agreement, delivery and sales terms are F.O.B. shipping point, freight prepaid to destination. Buyer is responsible for protecting and returning in good condition any returnable drums or other containers, or railcars provided by Eastman, which will at all times remain Eastman's property. Buyer is responsible for ensuring that such drums, containers or railcars are "empty" before return. Railcars for bulk shipments will be furnished to Buyer without charge for a period prescribed by Eastman. Such railcars may be retained thereafter only with Eastman's prior consent and subject to Eastman's current daily charges. 8. MISCELLANEOUS This agreement consists only of the terms on both sides of this document and any attachments hereto. Any modifications must be in writing and signed by both parties. A waiver by Eastman with respect to any breach by Buyer shall not constitute a waiver of any other breach. This agreement shall be deemed to have been entered into in Kingsport, Tennessee and the laws of the State of Tennessee shall apply. P:SC9-1 ECC 11/10/94 (IPC 11/94) -----END PRIVACY-ENHANCED MESSAGE-----