Exhibit
10.45


 


WORLDWIDE
CORPORATE PURCHASE AGREEMENT-GOODS


 


KMG Electronic Chemicals, Inc.
(Supplier)


 


and


 


Intel Corporation (Buyer)


 


December 31, 2007


 


 


[***] indicates a deletion.


 

















 


WORLDWIDE CORPORATE PURCHASE AGREEMENT-GOODS


TABLE OF CONTENTS


 


	
  1.

  	
  BASIC
  OBLIGATIONS OF THE PARTIES

  	
  1

  
	
  2.

  	
  ADDENDA
  INCORPORATED INTO THIS AGREEMENT

  	
  2

  
	
  3.

  	
  DEFINITIONS

  	
  2

  
	
  4.

  	
  TERM
  OF AGREEMENT

  	
  3

  
	
  5.

  	
  PRICING-GENERAL

  	
  4

  
	
  6.

  	
  CURRENCY

  	
  5

  
	
  7.

  	
  ORDER
  PLACEMENT PROCEDURE AND PRODUCT/GROUP SPECIFIC REQUIREMENTS

  	
  5

  
	
  8.

  	
  INVOICING
  AND PAYMENT

  	
  5

  
	
  9.

  	
  MINIMUM
  PURCHASE; TERMINATION FOR CONVENIENCE

  	
  6

  
	
  10.

  	
  DELIVERY,
  RELEASES. AND SCHEDULING

  	
  6

  
	
  11.

  	
  INSPECTION,
  WARRANTY AND ACCEPTANCE

  	
  7

  
	
  12.

  	
  PRODUCT
  SPECIFICATIONS/IDENTIFICATION/ERRATA

  	
  8

  
	
  13.

  	
  PACKING
  AND SHIPMENT

  	
  9

  
	
  14.

  	
  OWNERSHIP
  AND BAILMENT RESPONSIBILITIES

  	
  10

  
	
  15.

  	
  CONTINGENCIES

  	
  10

  
	
  16.

  	
  CONFIDENTIALITY
  AND PUBLICITY

  	
  10

  
	
  17.

  	
  REMEDIES
  AND LIMITATION OF LIABILITY

  	
  11

  
	
  18.

  	
  INTELLECTUAL
  PROPERTY INDEMNIFICATION

  	
  12

  
	
  19.

  	
  HAZARDOUS
  MATERIALS

  	
  13

  
	
  20.

  	
  CUSTOMS
  CLEARANCE

  	
  14

  
	
  21.

  	
  COMPLIANCE
  WITH LAWS AND RULES

  	
  14

  
	
  22.

  	
  RETENTION

  	
  14

  
	
  23.

  	
  SUPPLYLINE
  PROTECTION

  	
  16

  
	
  24.

  	
  BUSINESS
  CONTINUITY

  	
  15

  
	
  25.

  	
  NEW
  DEVELOPMENTS

  	
  15

  
	
  26.

  	
  ELECTRONIC
  TRANSACTIONS

  	
  15

  
	
  27.

  	
  PRIVACY

  	
  16

  
	
  28.

  	
  DATA
  SECURITY REQUIREMENTS

  	
  17

  
	
  29.

  	
  NOTICES

  	
  18

  
	
  30.

  	
  DISPUTE
  RESOLUTION

  	
  18

  
	
  31.

  	
  SPECIFIC
  PERFORMANCE

  	
  21

  
	
  32.

  	
  MERGER,
  MODIFICATION, WAIVER AND REMEDIES

  	
  18

  
	
  33.

  	
  ASSIGNMENT

  	
  19

  
	
  34.

  	
  APPLICABLE
  LAW

  	
  19

  
	
  35.

  	
  HEADINGS

  	
  19

  
	
  36.

  	
  SURVIVAL

  	
  19

  
	
  ADDENDUM
  A PRODUCT DESCRIPTION, PRICE SCHEDULE

  	
  23

  
	
  ADDENDUM
  B PERFORMANCESTANDARDS/QUALITY REQUIREMENTS

  	
  24

  
	
  ADDENDUM
  C CGO SUPPLEMENTAL PROVISIONS

  	
  25

  
	
  ADDENDUM
  D PROTECTION OF INTEL’S ASSETS

  	
  31

  
	
  ADDENDUM
  E ASSIGNMENT OF INTELLECTUAL PROPERTY

  	
  32

  
	
  ADDENDUM
  F CAPACITY UPSIDE

  	
  33

  



 

















 


WORLDWIDE CORPORATE PURCHASE AGREEMENT-GOODS


 


	
   

  	
  Agreement #:

  	
   

  
	
   

  	
  Effective Date:

  	
  December 31, 2007

  
	
   

  	
  Expiration Date:

  	
  December 30, 2010

  
	
   

  	
  CNDA #:

  	
  3766614

  



 


This
WORLDWIDE CORPORATE PURCHASE AGREEMENT — GOODS (“Agreement”),
made and entered into as of the 31st  day of
December, 2007, by and between KMG Electronic Chemicals, Inc., 9555 W. Sam
Houston Parkway S., Suite 600,
Houston, TX 77099, acting for itself and on behalf of those
subsidiaries and Controlled Affiliates offering goods within the scope of this
Agreement (collectively “KMG” or “Supplier”),  a
corporation organized and existing under the laws of the State of Texas, and
Intel Corporation, a corporation organized and existing under the laws of the
State of Delaware, USA acting on behalf of its subsidiaries and Controlled
Affiliates (collectively “Intel” or “Buyer”). 
Buyer shall assure that Subsidiaries and Controlled Affiliated or sister
entities abide by the terms and conditions of this Agreement.  The term “Party” or “Parties” as used in this
Agreement refer to the signatories in their individual or collective
capacities, respectively.


 


RECITALS


 


Supplier
provides a variety of goods to Buyer and Buyer purchases such goods on a
worldwide basis from geographically diverse locations.  Each Party maintains procurement and
manufacturing facilities in various geographies to support its business
needs.  In order to facilitate the
business relationship and the on-going sale and purchase of goods, it is the
Parties’ intent to enter into this Agreement which will define key terms and
conditions which will govern the majority of contractual relationships between the
Parties while allowing Buyer and Supplier sites to define the details of
specific procurement activities. 
Further, it is the intent of the Parties to simplify the administration
of contractual obligations and to foster an improved working relationship;


 


NOW THEREFORE, in consideration of the mutual covenants
and promises contained herein, and intending to be legally bound hereby, Buyer
and Supplier agree as follows:


 


AGREEMENT


 


1.             BASIC
OBLIGATIONS OF THE PARTIES


 


Buyer
may purchase and Supplier shall sell the goods pursuant to applicable prices,
terms and conditions defined infra and specific Addenda.  All Purchase Orders  issued
to Supplier by Buyer during the term of this Agreement shall be governed only
by the Terms and Conditions of this Agreement (as supplemented by the terms and
conditions of the Addenda) without requirement of any specific reference hereto
in an Intel Purchase Order, and notwithstanding any preprinted terms and
conditions on Supplier’s acknowledgment or Buyer’s Purchase Order or terms
required generally for bidders in electronic “Internet Negotiations” offered by
Buyer.  Certain purchasing activities may
occur between the subsidiary entities of Buyer for consumption by such legal
entity, and such purchases may be in the name of the local Buyer and Supplier
legal entities.  Any additional or
different terms in Supplier’s documents are hereby deemed to be material
alterations and notice of objection to and rejection of them is hereby
given.  In the event 


 


1

















 


of
any conflict or inconsistency between the terms and conditions set forth herein
and those of set forth on any Addenda to this Agreement, the Addenda shall
control to the extent the conflict is specific to the subject matter of the
Addenda.  Any conflict or inconsistency
between the negotiated terms set forth on the face (but not the preprinted
terms on the reverse side) of any Buyer’s Purchase Order accepted by Supplier
and the terms of any Addenda shall be governed by the terms set forth on such
Purchase Order.


 


2.             ADDENDA
INCORPORATED INTO THIS AGREEMENT


 


As of the Effective Date of
this Agreement, the following addenda are incorporated into this Agreement and
shall be read as an integral part thereof.


 


Addendum
A            Product
Description, Price Schedule


Addendum B            Performance
Standards/Quality Requirements


Addendum C            CGO
Supplemental Provisions


Addendum D            Protection of
Intel’s Assets


Addendum E             Assignment of
Intellectual Property


Addendum F             Capacity Upside


 


3.             DEFINITIONS


 


A.            “Acceptance
Date” means the date on which Buyer accepts an Item or Service provided by
Supplier in accordance with an Addendum A.


 


B.            “Consignment” means those consumable
items owned by the Supplier that are held off-site by Supplier to help ensure
that delivery requirements are met.


 


C.            “Controlled
Affiliate” means an entity that is controlled (through the exercise of majority
voting power at the board and shareholder level), directly or indirectly, by
the ultimate parent of a contracting Party.


 


D.            [***]


 


E.             “Errata” means
deviation from Specification with regard to manufacturing, packaging, labeling
processes and or raw material changes.


 


F.             “Hazardous
Materials” are or contain dangerous goods, chemicals, contaminants, substances,
pollutants, or any other materials that are defined as hazardous by relevant
local, state, provincial, national, or international law, regulations, and
standards.


 


G.            “Interrupt”
means any event which detrimentally affects the output of an Intel tool or
product quality.


 


H.            “Items” means the
goods that Supplier is to make available for sale to Buyer as set forth on the
applicable Addendum A.  Items may include
but not be limited to chemicals that are transported, stored, dip tubed and
delivered by Supplier or otherwise provided hereunder or either singly or
collectively, as the context indicates, or other goods or materials which
Supplier agrees to sell to Buyer under this Agreement.


 


2

















 


I.              “Purchase
Agreement” means an agreement between Buyer or a Controlled Affiliate of Buyer
and Supplier or a Controlled Affiliate of Supplier pertaining to the purchase
and sale of Items and/or the performance of Services falling within the scope
of the Addenda incorporated into this Agreement from time to time.


 


J.             “Purchase Order”
is Buyer’s document setting forth specific Services to be rendered and/or
specific Items ordered, and Release information.


 


K.            “Release” means
Buyer’s authorization for Supplier to provide the Services and to ship a
definite quantity of Items in accordance with a specified schedule.  The Release is contained in the Purchase
Order sent to Supplier.


 


L.             “Service(s)”
means the work to be performed by Supplier if any as set forth in the
applicable Addendum “A” in compliance with the Specifications of the applicable
Addenda.


 


M.           “Specification” means the
agreed technical definition, and/or performance parameters, Performance
Standards, or purchase specification of Items and service level agreement, as
applicable for Services as set forth in the
applicable specification addenda to Addendum A for each Item or Service
purchased or to be purchased pursuant to this Agreement.


 


4.             TERM OF
AGREEMENT


 


A.          The term of
this Agreement shall begin on the Effective Date and continue to the Expiration
Date.  Buyer shall provide notice of its
desire to extend this Agreement ninety (90) days prior to the then current
Expiration Date of this Agreement. 
During such ninety (90) day period Buyer and Seller agree to negotiate,
in good faith, the terms and conditions (including but not limited to pricing)
of any such extension, and such extension shall be effective upon Buyer and
Supplier agreeing thereon.  [***]


 


B.          [***]


 


3

















 


5.             PRICING -
GENERAL


 


A.            For Items purchased by Buyer, Supplier
will provide to Buyer a dated, electronic file of such Items, their part
number, description, list price if applicable, negotiated discount, the current
negotiated price, and warranty period. 
These price files will be set forth in the applicable Addendum A.  All quotes and invoices from Supplier shall
be developed using part numbers and negotiated or published list prices set
forth in the applicable Addendum A.


 


B.            [***]


 


C.            [***]


 


D.            Buyer may
return, at Buyer’s expense and with prior written approval from Supplier, [***]
in unopened, original, individual Item packaging for a credit against any
outstanding or future Supplier invoices.


 


E.             All applicable
taxes, including but not limited to sales/use taxes, transaction privilege
taxes, gross receipts taxes, and other charges such as duties, customs,
tariffs, imposts, and government imposed surcharges shall be stated separately
on Supplier’s invoice.  Supplier shall
remit all such charges to the appropriate tax authority unless Buyer provides
sufficient proof of tax exemption. In the event that Buyer is prohibited by law
from making payments to Supplier unless Buyer deducts or withholds taxes
therefrom and remits such taxes to the local taxing jurisdiction, then Buyer
shall duly withhold such taxes and shall pay to Supplier the remaining net
amount after the taxes have been withheld. 
Buyer shall not reimburse Supplier for the amount of such taxes
withheld. When property is delivered and/or services are provided or the
benefit of services occurs within jurisdictions in which Supplier collection
and remittance of taxes is required by law, Supplier shall have sole
responsibility for payment of said taxes to the appropriate tax
authorities.  In the event Supplier does
not collect tax from Buyer, and is subsequently audited by any tax authority,
liability of Buyer will be limited to the tax assessment, with no reimbursement
for penalty or interest charges.  Each
Party is responsible for its own respective income taxes or taxes based upon
gross revenues, including but not limited to business and occupation taxes.


 


F.             Additional costs, except those described on Addendum
A, will not be reimbursed without Buyer’s prior written approval.


 


G.            Buyer reserves the right to have Supplier’s records
inspected and audited to ensure compliance with this Agreement.  [***]


 


H.            If an Item not
included in Addendum A is to be purchased by Buyer, its price will be
negotiated by a corporate representative at the time of initial purchase.  If the Item is for test purposes only at a
given site, its price may be established between Supplier and the Buyer’s site
purchasing staff.  Such price shall be in



 


4

















 


effect
only until a corporation-wide price is negotiated between Supplier and Buyer
for the Buyer part number assigned to such Item.


 


I.              Within sixty (60) days of the end of each calendar
quarter during the term of this Agreement, Supplier shall deliver comprehensive
and accurate quarterly updates of the applicable Addendum A and reports of
quarterly sales to Buyer. Each such quarterly update shall include a list of
all Items delivered to Buyer during the subject quarter which are not listed in
Addendum A or identified in previous quarterly updates, the price of each such Item,
the Supplier part numbers of each such Item, the Intel part number of each
such Item, and any other changes to the applicable Addendum A.


 


J.             [***]


 


K.            Except where
otherwise noted, the prices to be charged under this Agreement are inclusive of
any and all containers (both returnable and disposable), diptubes, diptube
exchange and all necessary accessories for each Item.


 


L.             Warehousing
costs are not included in the prices to be charged under this Agreement, except
where noted in Addendum A to the contrary.


 


6.             CURRENCY


 


Prices for Items will be
stated in U.S. dollars regardless of an Item’s country of origin or
destination. Buyer reserves the right to use U.S. dollars or alternatively the
currency of the country to which the Items are provided as the currency of
exchange in any purchase under this Agreement from Supplier or any subsidiary
of Supplier.  On a site-specific basis,
Buyer will select U.S. dollars or local currency as currency of exchange and
will maintain that currency as currency of exchange for the term of this
Agreement or until change is mutually agreed to by Buyer and Supplier.


 


7.             ORDER
PLACEMENT PROCEDURE AND PRODUCT/GROUP SPECIFIC REQUIREMENTS


 


Due to the diverse nature of the products
purchased under this Agreement and the different ordering locations, the
Parties may agree to specific order placement procedures.  Depending upon the buying and selling
entities and the products procured, specific provisions regarding order
placement may be set forth on the applicable Addendum A.  All purchases by Buyer must be accompanied by
a valid Purchase Order issued by Buyer’s Purchasing organization.


 


8.             INVOICING
AND PAYMENT


 


A.            [***]


 


B.            Original
invoices or packing lists shall be submitted and shall include:  Purchase Agreement number from the Purchase
Order, Purchase Order number, line item number, Release number, part number,
complete bill to address, description of Items, quantities, unit price,
extended totals, and any applicable tax or other charges.  All costs forwarded to Buyer for reimbursement
of expenses agreed 


 


5

















 


under
the terms of this Agreement shall be net of any reclaimable Value Added Taxes (“VAT”)
incurred on such expenses.  Buyer’s
payment shall not constitute acceptance.


 


C.            Supplier shall
be responsible for and shall hold Buyer harmless for any and all payments to
its vendors or subcontractors utilized in the performance of Services.


 


D.            Supplier agrees
to invoice Buyer no later than [***] days after completion of Services or shipment
of Items.  Buyer will not be obligated to
make payment against any invoices first submitted after such period.


 


9.             MINIMUM
PURCHASE; TERMINATION FOR CONVENIENCE


 


A.            [***]


 


B.            [***]


 


C.            [***], Buyer
may terminate any Purchase Order or Release issued under this Agreement, or any
part thereof, at any time for its sole convenience by giving [***] days notice
of termination to Supplier.  Upon
Supplier’s receipt of such notice, Supplier shall, unless otherwise specified
in such notice, immediately stop all work hereunder, give prompt notice to, and
cause all of its suppliers or subcontractors to cease all related work, and,
upon Buyer’s request, return all materials provided to Supplier by Buyer under
this Agreement.


 


D.            [***]


 


E.             [***]


 


F.             [***]


 


G.            Notwithstanding
anything else in this Agreement, failure to meet the delivery date(s) in
the Purchase Order shall allow Buyer to terminate the order for the Item and/or
any subsequent Releases in the Purchase Order without any liability whether the
Purchase Order was for standard or Custom Items.


 


10.          DELIVERY,
RELEASES, AND SCHEDULING


 


A.            Any forecasts
provided by Buyer are for planning purposes only and do not constitute a
Release or other commitment by Buyer.


 


B.            Supplier shall
notify Buyer within forty eight (48) hours of receipt of Buyer’s Purchase Order
if Supplier is unable to make any scheduled delivery and shall state the
reasons therefor.


 


C.            On time
delivery by Supplier is a key expectation of this Agreement.  Supplier shall deliver Items per the Release
schedule and Buyer may return non-conforming shipments at Supplier’s risk and
expense.


 


6
















 


D.                                    Buyer may reschedule any Release in whole or
in part up to ten (10) days prior to the Release date at no additional
charge, provided however that the rescheduled Release date is no more than
thirty (30) days later than the original Release date.


 


E.                                      Buyer may place any portion of a Release on
hold by notice that shall take effect immediately upon receipt.  Releases placed on hold will be rescheduled,
or terminated in accordance with Section 9, within a reasonable time.  If placing a Release on hold will cause
Supplier to incur additional storage and handling costs, Buyer and Supplier
shall mutually agree on storage and handling solution and any costs to be
reimbursed.


 


F.                                      Buyer shall have no obligation with respect
to the purchase of Items under this Agreement until such Items are specified in
an issued Purchase Order that contains specific Release dates for specific
Items.


 


G.                                     If for any reason Supplier discontinues the
manufacture of any Item during the term of this Agreement, Supplier shall for
Items that are currently being purchased, or have been purchased, give Buyer
notice [***].  If any warranty return
claims are made for such discontinued Items, then such returns will be subject
to the warranty provisions in Section 11.


 


H.                                    Supplier shall provide a Certificate of
Analysis (C of A) or sample for each lot to be shipped, as directed in the most
current appropriate Specification.


 


I.                                         Supplier shall maintain a safety stock on
such Items as Buyer’s local sites may identify, [***].


 


J.                                        Supplier will store Items at Supplier’s local
warehouse or Buyer’s designated warehouse. 
However, if Supplier’s local warehouse does not meet the reasonable
expectations of Buyer, Buyer reserves the right to request an alternate
warehouse.


 


11.                               INSPECTION, WARRANTY AND ACCEPTANCE


 


A.                                   Buyer may inspect and test, at Buyer’s
expense, all Items at reasonable times before, during, and after
manufacture.  If any inspection or test
is made on Supplier’s premises, Supplier shall provide reasonable facilities
and assistance for the safety and convenience of Buyer’s inspectors in such
manner as shall not unreasonably hinder or delay Supplier’s performance.  All Items shall be received subject to Buyer’s
inspection, testing, approval, and acceptance at Buyer’s premises
notwithstanding any inspection or testing at Supplier’s premises or any prior
payment for such Items.  In the event of
any shortage, damage or discrepancy in or to a shipment of Items, Buyer shall
promptly report such shortage, damage or discrepancy and furnish reasonable documentation
thereof.  Supplier shall not be
responsible for any shortage, damage or discrepancy unless Buyer provides
notice thereof within thirty (30) days of Buyer’s receipt of such Items.  If Supplier receives such notice and is
responsible for the shortage, damage or discrepancy, such Items may be returned
to Supplier at Supplier’s 


 


7

















 


risk and expense and, at Buyer’s request, shall be
replaced by Supplier within normal lead-times for the Item.


 


B.                                     Supplier makes the following warranties
regarding Items and Services furnished hereunder, which warranties shall
survive any delivery, inspection, acceptance, payment, or resale of the Items:


 


1.                                       Items will not infringe any Party’s
intellectual property rights;


2.                                       Supplier has the necessary right, title, and
interest to provide said Items and Services to Buyer, and the Items will be
free of liens and encumbrances;


3.                                       With the exception of used Items purchased by
Buyer, Items are new, and of the grade and quality specified;


4.                                       Items are free from defects in workmanship
and material, conform to all samples, drawings, descriptions, and
Specifications furnished or published by Supplier and to any other agreed
Specifications; and


5.                                       Items shall conform to the manufacturing
quality provisions set forth in Addendum B.


 


C.                                     THE FOREGOING WARRANTIES SET FORTH IN
PARAGRAPH B OF THIS SECTION 11 ARE THE SOLE WARRANTIES HEREUNDER, AND SUCH
WARRANTIES ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, IN
FACT OR BY LAW, OR ARISING BY REASON OF CUSTOM OR USAGE IN THE TRADE OR BY
COURSE OF DEALING, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.


 


D.                                    For Items which do not conform to the
forgoing warranties set forth in paragraph B of this
Section 11, during a period of [***] after Buyer’s acceptance of Items, or
until the expiration of the shelf life (as defined by Supplier’s published
data) of the non-conforming Items, whichever is earlier, Buyer may require
Supplier, at Buyer’s option, to promptly repair, replace, or refund the amount
paid for any non-conforming Items.  Buyer
shall hold any unused Items found to be non-conforming for return to Supplier,
and Supplier shall bear the cost of shipping and shall bear the risk of loss
for all non-conforming Items while in transit.


 


E.                                      FOR ITEMS WHICH HAVE NOT BEEN USED BY BUYER
AND WHICH ARE FOUND TO BE NON-CONFORMING, THE SOLE AND EXCLUSIVE REMEDY FOR
BREACH OF ANY AND ALL WARRANTIES, SHALL BE LIMITED TO THE REMEDIES PROVIDED IN
PARGRAPH D OF THIS SECTION 11.


 


12.                               PRODUCT
SPECIFICATIONS/IDENTIFICATION/ERRATA


 


A.                                   [***]


 


B.                                     Supplier shall
cooperate with Buyer to provide configuration control and traceability systems
for Items supplied hereunder. Supplier shall provide Buyer 


 


8

















 


with an Errata list for
each Item and shall promptly notify Buyer of any new Errata with respect to the
Items.


 


C.                                     Supplier will only
provide Items manufactured in a qualified facility.  Buyer will make all commercially reasonable
efforts to qualify Supplier facilities upon written request from Supplier
summarizing need to do so.


 


D.                                    Supplier agrees to notify Buyer of any known
or reported issues, whether from Supplier’s internal testing or from Supplier’s
other customers, with Items purchased by Buyer for use in Buyer’s manufacturing
process.  Supplier will provide Buyer
with the information (e.g., potentially affected Items, impact to
manufacturing, etc.) necessary to avoid or minimize any potential impact to
Buyer.  Supplier shall also provide Buyer
with a detailed explanation of the cause(s) of the issue, corrective
actions undertaken by Supplier and Supplier’s planned action to prevent any
reoccurrence.


 


13.                               PACKING AND
SHIPMENT


 


A.                                   All Items shall be prepared for shipment in a
manner that: (i) follow good commercial practice; (ii) is acceptable
to common carriers for shipment at the lowest rate; and (iii) is adequate
to ensure safe arrival.  Supplier shall
mark all containers with necessary lifting, handling, unpacking and shipping
information, Purchase Order number, date of shipment, and the names of the
Buyer and Supplier.  Buyer shall notify
Supplier of the method of shipment and expected delivery date.  If no instructions are given, Supplier shall
select the most cost effective carrier, given the time constraints known to
Supplier.   Supplier shall ship only the
quantity of Items specified in the Release. 
Buyer may return at Supplier’s expense any Items in excess of the
quantity stated in the Release.  If
Supplier misses a commitment to lead-time, Supplier will pay overnight freight
charges to get Items expedited to the Buyer and Buyer shall not be billed for
higher freight costs.  Supplier may
choose premium carrier at its discretion.


 


B.                                     As directed by Buyer, freight shall be either
managed by Supplier or Buyer in accordance with the following terms and
conditions:


 


[***]


 


C.                                     Hazardous Materials Freight: Notwithstanding
anything contained in Section 13.B. to the contrary, all Items that are
Hazardous Materials and are regulated in transportation shall be shipped [***].


 


D.                                    [***]


 


E.                                      [***]


 


F.                                      If Buyer must deploy emergency, safety, or
materials personnel in response to an emergency or incident of non-compliance
with Suppler or regulatory procedure involving Items supplied hereunder, the
Parties agree that they shall review the facts of the incident(s) promptly
and in good faith to determine (1) whether the deployment was necessary,
and (2) whether the proximate cause of 


 


9

















 


such
emergency or non-compliance was Supplier’s acts or failures to act.  If the Parties answer the above questions in
the affirmative, then Supplier shall reimburse Buyer for reasonable and actual
costs incurred by Buyer in deploying personnel. 
This provision does not limit any other rights or remedies Buyer may
have.


 


14.                               OWNERSHIP
AND BAILMENT RESPONSIBILITIES


 


Any specifications, drawings, schematics, technical information, data,
tools, dies, patterns, masks, gauges, test equipment, and other materials owned
by Buyer and furnished to Supplier or otherwise in Supplier’s possession shall:
(i) be kept confidential; (ii) remain Buyer’s property; (iii) be
used by Supplier exclusively for Buyer’s orders; (iv) be clearly marked as
Buyer’s property and segregated when not in use; (v) be kept in good
working condition at Supplier’s expense; and (vi) be shipped to Buyer
promptly on demand or upon termination or expiration of this Agreement,
whichever occurs first, at Buyer’s expense. 
Any such property furnished by Buyer to Supplier that is marked or
otherwise noted by Buyer as being confidential information will be treated by
Supplier in accordance with Section 16 of the Agreement.  Supplier shall be liable for any loss of or
damage to Buyer’s property while in Supplier’s possession or control, ordinary
wear and tear excepted.   Supplier shall
take all necessary steps and carry out all notice formalities or registrations
as may be applicable under the laws of Supplier’s country to ensure that it is
recorded as Buyer’s property.


 


15.                               CONTINGENCIES


 


A.                                   Neither Party shall be responsible for any
delay or failure, in whole or in part, to perform under this Agreement,
including but not limited to Supplier’s obligation to deliver Items, to the
extent that such delay or failure is due to causes beyond such Party’s
reasonable control, including but not limited to acts of State or governmental
action or inaction, riots, civil disturbance, war, strikes, lockouts, shortages
of energy, failure of normal source of supply, destruction of production or
warehouse facilities by fire, explosion, earthquake, storm.  If delivery of Items is to be delayed by such
contingencies, Supplier shall immediately notify Buyer and Buyer may either: (i) extend
time of performance; or (ii) terminate all or part of the uncompleted
portion of the Purchase Order at no cost to Buyer.


 


B.                                     [***]


 


C.                                     Nothing in this section will be construed to
limit Supplier’s right to seek additional compensation or surcharges to cover
any increase in Supplier’s costs associated with a contingency event.


 


16.                               CONFIDENTIALITY
AND PUBLICITY


 


A.                                   During the course of this Agreement, either
Party may have or may be provided access to the other’s confidential
information and materials.  Each Party
agrees to maintain such information in accordance with the terms of this
Agreement and the CNDA referenced herein and any other applicable separate
nondisclosure agreement between Buyer and Supplier.  Additionally, in the event Supplier is
engaged to develop new information for Buyer, the Buyer and Supplier will agree



 


10

















 


in
writing in advance as to the ownership of such information.  Supplier’s employees who access Buyer’s
facilities may be required to sign a separate access agreement prior to
admittance to Buyer’s facilities. 
Furthermore, Supplier will furnish a copy of Addendum D to each of its
employees, agents and subcontractors assigned to or contracted for Buyer work
and will take reasonable steps to assure Buyer that all such employees, agents
and subcontractors have read and understood Addendum D.  Supplier shall not use any of the
confidential information created for Buyer other than for Buyer. Nothing
contained herein shall be construed as granting or implying any right or
license under any intellectual property right of the other party.


 


B.                                     The Parties agree that the existence of
this Agreement and its terms shall constitute “Confidential Information” within
the meaning of the CNDA.  If disclosure
of this Agreement or any of the terms hereof is required by applicable law,
rule, or regulation, or is compelled by a court or governmental agency,
authority, or body, such as annual reports or S1 Filings:  (i) the Parties shall use reasonable
efforts to limit the disclosure to third parties of the content of the
Agreement, including without limitation seeking a confidential treatment
request or protective order; (ii) the Party compelled to make disclosure
shall give reasonable notice in advance of the disclosure; and (iii) the
Party compelled to make disclosure shall give the other Party a reasonable
opportunity to review and comment upon the disclosure, and any request for
confidential treatment or a protective order pertaining thereto, prior to
making such disclosure.  The Parties may
disclose this Agreement in confidence to their respective legal counsel,
accountants, bankers, and financing sources as necessary in connection with
obtaining services from such third parties.


 


C.                                     Neither Party may use the other Party’s
name or trademarks in any type of advertisement materials, web sites, articles,
brochures, business cards, banners, letterhead, without the other’s written
consent. For Intel, this would be the Director of Corporate Purchasing and/or
the Vice President of Materials.


 


D.                                    The obligations stated in this Section shall
survive the expiration or termination of this Agreement.


 


17.                               REMEDIES AND LIMITATION OF
LIABILITY


 


A.                                   Supplier
agrees to protect, defend, indemnify and hold Buyer harmless from and against
any and all claims, liabilities, demands, penalties, forfeitures, suits,
judgments and the associated costs and expenses (including reasonable attorney’s
fees), which Buyer may hereafter incur, become responsible for or pay out as a
result of death or personal injury (including bodily injury) to any person,
destruction or damage to property, contamination of or adverse effects on the
environment and any clean up costs in connection therewith, or any violation of
governmental law, or regulation, to the extent caused by: (a) Supplier’s
breach of any term or provision of this Agreement (other than any term or
provision for which a remedy is already provided for herein); or (b) any
negligent acts, errors or omissions or intentional torts by Supplier, its
employees, officers, agents, representatives or sub-contractors in the
performance of this Agreement; 


 


11

















 


provided, however, that
Supplier’s liability to Buyer for 
destruction or damage to Buyer’s property or otherwise shall be limited
to[***].


 


B.                                     NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY (OTHER THAN SECTION 18 BELOW), UNDER NO
CIRCUMSTANCES SHALL SUPPLIER BE LIABLE TO BUYER FOR [***].


 


C.                                     The
limitations set forth in this Section 17 shall not limit Supplier’s
liability to third parties for death or personal injury (including bodily
injury).


 


D.                                    Nothing
in this Section shall limit Supplier’s obligation to indemnify Buyer for
Intellectual Property infringement as set forth in Section 18.


 


E.                                      [***]


 


F.                                      [***]


 


G.                                     Buyer’s sole and exclusive remedies for
non-delivery of Items, including non-delivery of substitute Items for shipments
for which there was a shortage, damage or discrepancy or non-delivery of Items
to replace non-conforming Items, shall be


 


1.                                       relief from its obligation to pay the
purchase price for the quantity of Items not delivered; and/or


2.                                       the cost of “cover” as defined in the Uniform
Commercial Code.  Supplier shall
reimburse Buyer the cost of cover if Buyer requires substitute Items from
another supplier due to Supplier’s failure to deliver Items to agreed
schedules; provided however, that Supplier has been given a reasonable
opportunity to procure such substitute Items via its own channels within a time
frame acceptable to Buyer.


 


H.                                    [***]


 


18.                               INTELLECTUAL PROPERTY
INDEMNIFICATION:


 


A.                                   Supplier shall indemnify and hold Buyer and
its customers harmless from any costs, expenses (including reasonable attorneys’
fees), losses, damages, or liabilities finally awarded by a court of competent
jurisdiction, or in its sole judgment settled, because of any claim of
infringement of any third party patent, copyright, trade secret, trademark,
mask work, or other intellectual property right arising out of the proper use
or sale by Buyer of Items, except as otherwise provided in this paragraph.
Buyer shall promptly notify Supplier in writing of such claim or demand with
sufficient specificity to allow Supplier to adequately respond to such claim or
demand and shall permit Supplier to solely conduct the defense or settlement
thereof.  Buyer shall provide all
assistance reasonably requested by Supplier or Supplier’s counsel.  Buyer may retain advisory counsel at its sole
expense to participate fully in any such matter.  If any settlement of such claim or demand
requires Buyer to incur any monetary obligation or admits liability on Buyer’s
behalf, then Supplier shall not accept any such settlement without Buyer’s
consent.  If an injunction issues as a
result of any claim or 


 


12

















 


action,
Supplier agrees at its expense and its sole option to do one of the
following:  (i) procure for Buyer
the right to continue using Items; (ii) replace Items with non-infringing
items; (iii) modify Items so they become non-infringing; or (iv) refund
to Buyer the amount paid for any Items returned to Supplier or destroyed in
accordance with Supplier’s written requests. 
Regardless of which of the foregoing remedies is chosen by Supplier,
Supplier shall pay to Buyer incremental costs incurred by Buyer to procure
alternative products that are comparable in quality and specifications as
compared to the replaced Items, provided that such alternative products are
required to fill orders for Items that were placed by Buyer and accepted by
Supplier as of the effective date of the injunction. This indemnification shall
not apply to the extent Items are manufactured to Buyer’s specifications and
such infringement would not have occurred but for Supplier’s compliance with
such specifications.  This
indemnification shall not apply to the extent the Item is combined with other
items or transformed by Buyer or a third party and such infringement would not
have occurred but for the combination and/or transformation, or the combination/transformation
of the Item was proposed or suggested to Buyer by Supplier in writing.


 


B.                                     [***]


 


C.                                     The foregoing states the entire set of
obligations and remedies flowing between Buyer and Supplier arising from any
intellectual property claim by a third party.


 


19.                               HAZARDOUS
MATERIALS


 


A.                                   If Items provided hereunder include Hazardous
Materials, each Party represents and warrants that their respective personnel
understand the nature of and hazards associated with the design and/or Service
of Items including handling, transportation, and use of such Hazardous
Materials, as applicable.  Prior to
causing Hazardous Materials to be on Buyer’s property, Supplier shall notify
Buyer and obtain written approval from Buyer’s Site Environmental, Health, and
Safety (EHS) organization.  Buyer will
not grant approval without Supplier’s agreement to comply with Buyer’s
Hazardous Materials management requirements. 
Supplier will be fully responsible for and indemnify Buyer from any
liability resulting from the negligence of Supplier or its contractors in
connection with: (i) delivering such Hazardous Materials to Buyer; and/or (ii) using
such Hazardous Materials to provide Services to Buyer.


 


B.                                     Supplier will timely provide Buyer with
material safety data sheets and any other documentation reasonably necessary to
enable Buyer to comply with applicable laws and regulations.  Further, Supplier shall provide Buyer with
bulletins which notify Buyer of any safety hazards associated with the
Equipment that are identified by Supplier after Buyer’s purchase, and of any
safety upgrades required to correct such hazards.


 


C.                                     Supplier hereby
certifies that Items supplied to Buyer comply with all applicable requirements
of Buyer’s Environmental Product Content 


 


13

















 


Specification for Suppliers and Outsourced
Manufacturers (Spec
number BS-MTN-0001) and attached hereto in Addendum B.


 


20.                               CUSTOMS
CLEARANCE


 


Upon Buyer’s request, Supplier will promptly provide Buyer with a
statement of origin for all Items and with applicable customs documentation for
Items wholly or partially manufactured outside of the country of import.


 


21.                               COMPLIANCE
WITH LAWS AND RULES


 


A.                                   Each Party shall comply with all applicable
international, national, state, provincial and local laws and regulations
(including without limitation the United States and European Union) governing
the manufacture, packaging, transportation, import, export, sale or use of
Items and/or the performance of Services in the course of this Agreement.  In the United States, these may include, but
are not limited to, Department of Commerce including U. S. Export
Administration regulations, Securities Exchange Commission, Environmental
Protection Agency, and Department of Transportation regulations applicable to
Hazardous Materials.  Neither Party will
export/re-export any technical data, process, product, or service, directly or
indirectly (including the release of controlled technology to foreign nationals
from controlled countries), to any country for which the United States
government or any agency thereof requires an export license, except in
compliance with applicable law. In addition, Supplier agrees not to provide
foreign nationals from controlled countries as employees or contractors for work
on any Buyer site. For a current list of “Controlled Countries” refer to
http://www.bxa.doc.gov.


 


B.                                     If applicable, each Party represents and
agrees that it is in compliance with Executive Order 11246 and implementing
Equal Employment Opportunity regulations, the Vietnam Era Veterans’
Readjustment Assistance Act as amended by the Veterans Employment Opportunities
Act of 1998 (to include: Vietnam-era Veterans and other Veterans who served on
active duty during a war or campaign or expedition for which a campaign badge
has been authorized), and the Immigration Act of 1987, unless exempted or
inapplicable.


 


C.                                     Each Party shall comply with all applicable
laws regarding non-discrimination in terms and conditions of employment,
payment of minimum wage and legally mandated employee benefits and compliance
with mandated work hours.  Each Party
shall comply with all applicable laws regarding employment of underage or child
labor and shall not employ children under the age of 16.


 


22.                               RETENTION


 


Supplier will maintain
complete and accurate records for a period of five (5) years from the
delivery of Items and/or completion of Services under this Agreement.  Records relating to the performance of this
Agreement shall be made available to Buyer upon reasonable notice.


 


[***]


 


14
















 


A.                                   [***]


 


B.                                     [***]


 


24.                               BUSINESS
CONTINUITY


 


A.                                   Supplier will
develop and maintain documented business continuity plans (“BCP”) designed to
reduce the severity and duration of any period in which Supplier is unable to
perform under this Agreement due to causes beyond Supplier’s reasonable
control.  The BCP shall contain, at
minimum, written data recovery procedures which will address data quality,
security procedures, and timeline of recovery while the data and production are
being restored according to the timeline indicated in the BCP.  Supplier will allow Buyer to review BCP
relating to the performance of Services or delivery of Items, subject to the Section 16
obligation to maintain such information in confidence.


 


B.                                     Supplier will
develop and maintain a communication plan to advise Buyer of events impacting
performance of Services or data. 
Supplier may modify the BCP from time to time, provided that Supplier
will notify Buyer of any material changes to the BCP.


 


C.                                     Where inventory
is to be used as a key element of the BCP, Supplier shall maintain commercially
reasonable inventory levels.


 


D.                                    During any
period in which Supplier is unable to perform under this Agreement due to
causes beyond Supplier’s reasonable control, Supplier agrees to provide remedy according
to Section 15.


 


25.                               NEW
DEVELOPMENTS


 


A.                                   Supplier
represents and warrants that Supplier has no outstanding agreement that would
materially adversely affect Supplier’s performance hereunder, and Supplier
agrees that Supplier shall not enter into any such materially adverse agreement
during the term of this Agreement.


 


B.                                     [***]


 


26.                               ELECTRONIC
TRANSACTIONS


 


A.                                   Subject
to the terms and conditions of this section, the Parties agree to accept
electronic records and electronic signatures (as such terms are defined in the
U.S. Electronic signatures in global and national commerce act) relating to
transactions contemplated by this Agreement.


 


B.                                     In
connection with system-to-system implementations:


 


1.                                       The
Parties will implement the particular transaction sets and/or message
specifications mutually agreed upon by the Parties.  Each Party’s implementation will comply with
applicable standards (e.g., applicable 


 


15

















 


ANSI standards or
Rosetta net pips), except as otherwise mutually agreed.


2.                                       Where
applicable standards require that the receiving Party issue a notice to the
other confirming message receipt, such notice will not constitute a binding
acceptance or acknowledgement of anything more than mere receipt.  In the event that any element of an
applicable standard conflicts with a provision of this Agreement, the provision
of this Agreement will control.


3.                                       If
a Party has adopted an electronic identifier (e.g. A digital signature), the
other Party is entitled to rely on the authenticity of messages signed by or
otherwise associated with such electronic identifier unless and until notified
otherwise by the adopter.


 


C.                                     Either Party may use a third party
service provider in connection with e-business activities (e.g., to route or
translate edi or xml messages, or to host web based services). The Party
contracting with a service provider must require that such service provider (a) use
information disclosed to or learned by such service provider in connection with
providing services solely for the purpose of providing the applicable services,
and (b) not disclose such information to any third party.  Either Party may begin to use or may change a
service provider upon reasonable prior notice. 
Each Party will be liable for the acts or omissions of its service
provider in connection with activities contemplated by this Agreement.


 


27.                               PRIVACY


 


A.                                   This provision
applies to both online and offline Personal Information.


 


B.                                     “Personal
Information” is defined as any information that can be used to identify,
contact or locate a person. This includes any information which is linked to
Personal Information, or from which other Personal Information can easily be
derived.


 


C.                                     If Buyer
transmits any Personal Information to Supplier, Supplier warrants that Supplier
shall not transfer such Personal Information to any third party or use it for
any purpose other than as contemplated in this Agreement.


 


D.                                    If Supplier
obtains Personal Information in the course of performance of Services for
Buyer, Supplier warrants that Supplier shall not transfer such Personal
Information to any third party or use it for any purpose other than as
contemplated in this Agreement.


 


F.                                      If Supplier
contracts with its affiliates, subcontractors or other third parties for
performance of all or part of this Agreement, Supplier will inform such third
parties that Personal Information is not to be transferred or used except as
contemplated by this Agreement.


 


G.                                     Supplier shall
take reasonable measures to ensure the security of Supplier’s data, as
described in the Data Security provision of this Agreement, and take reasonable
measures to maintain the privacy of Personal Information.


 


16

















 


28.                               DATA SECURITY REQUIREMENTS


 


A.                                   Logical controls:  all systems
containing Intel classified information will have strong access control
mechanisms in place.  Each system user must have a unique identifier and
strong password combination. A strong password must be per industry standard,
but at least 6 digits in length and comprised of alpha-numeric and special
characters.  There must be control methods for securely granting and
revoking access to these systems.  An audit trail sufficient to support an
investigation must be maintained for changes to the security configuration and
for system use (e.g. system security logs, user activity logs). If provided by
Buyer to Supplier, information classified as Intel restricted secret or higher
will be transmitted under a Restricted Use Non-Disclosure Agreement
(RUNDA).  Within the RUNDA, Intel will specify the data security
requirements necessary for the type of data being transmitted.  If
Supplier cannot meet the specified data security requirements,
Supplier may decline to receive such Buyer information in general or Buyer
information of a specific classification level.


 


B.                                     Physical controls:  systems storing Intel classified information
must be housed in a physically secure location with access controls to the
granularity of the user (e.g. Card access controlled room) and with 24x7
intrusion detection systems in place (e.g. A monitored perimeter alarm
system).  Access control audit trails
must be maintained sufficient to support an investigation.


 


C.                                     Intrusion detection/response:  for systems and networks containing Intel
classified material, mechanisms and controls must be in place to detect
security breaches and to properly respond to a breach.  Intel must be notified within twenty four
(24) hours of security breaches that affect Intel classified information.


 


D.                                    Data destruction:  electronic portable media (e.g. Cd’s, hard
drives, floppy disks, zip drives) which contained Intel classified information
must be disposed of in a secure manner (e.g. Disk wipe to government standards,
degauss, physical destruction).  Hard
copies of Intel classified information must be disposed of by shredding or
other secure destruction methods.


 


17

















 


29.                               NOTICES


 


All notices hereunder are to be in writing, and are deemed to have been
duly given or made if given in person, delivered by commercial courier, or
given by certified mail, postage prepaid, return receipt requested, addressed
to the respective addresses of the Parties. 
Notices so given shall be effective (i) when delivered if given in
person or by commercial delivery courier service, or (ii) upon receipt or
ten (10) days after posting, whichever is earlier, if given by mail.  Unless otherwise agreed in writing by the
Parties, all notices regarding this Agreement shall be sent to the Parties,
with copies thereof as indicated, at the addresses set forth below, or at such
other address as the Parties may designate by notice from time to time.


 


	
  BUYER:

  	
  Intel Corporation

  
	
   

  	
  2200 Mission College
  Boulevard

  
	
   

  	
  Santa Clara, California 95052-8119

  
	
   

  	
  U.S.A.

  
	
   

  	
  Attention: 
                                                                       

  
	
   

  	
   

  
	
   

  	
  cc:

  	
  KMG Electronic Chemicals
  Materials Manager

  
	
   

  	
   

  	
  TMG Materials Counsel

  
	
   

  	
   

  
	
  SUPPLIER:

  	
  KMG Electronic
  Chemicals, Inc.

  
	
   

  	
  9555 W. Sam Houston Parkway S., Suite 600

  
	
   

  	
  Houston, TX 77099

  
	
   

  	
  U.S.A.

  
	
   

  	
  Attention: General Manager
  North America

  
	
   

  	
  With a copy to: General
  Counsel

  



 


30.                               DISPUTE
RESOLUTION


 


All disputes arising
directly under the express terms of this Agreement or the grounds for
termination thereof shall be resolved as follows:  The senior management of both Parties shall
meet to attempt to resolve such disputes. 
If the disputes cannot be resolved by the senior management, either
Party may make a written demand for formal dispute resolution and specify
therein the scope of the dispute.  Within
thirty (30) days after such notification, the Parties agree to meet for one (1) day
with an impartial mediator and consider dispute resolution alternatives other
than litigation, including referral to the National Patent Board.  If an alternative method of dispute
resolution is not agreed upon within thirty (30) days after the one day
mediation, either Party may begin litigation proceedings.


 


31.                               MERGER,
MODIFICATION, WAIVER, AND REMEDIES


 


A.                                   This Agreement
contains the entire understanding between Buyer and Supplier with respect to
the subject matter hereof and merges and supersedes all prior and
contemporaneous agreements, dealings and negotiations. No modification,
alteration, or amendment shall be effective unless made in writing, dated and
signed by duly authorized representatives of both Parties.


 


18

















 


B.                                     No waiver of
any breach hereof shall be held to be a waiver of any other or subsequent
breach.


 


C.                                     If any
provision of this Agreement is determined by a court of competent jurisdiction
to be invalid, illegal, or unenforceable, such determination shall not affect
the validity of the remaining provisions unless Buyer determines in its
discretion that the court’s determination causes this Agreement to fail in any
of its essential purposes.


 


32.                               ASSIGNMENT


 


Buyer or Supplier may assign or delegate its rights
and/or obligations, or any part thereof under this Agreement to any or all of
its wholly-owned subsidiaries. 
Otherwise, neither Party may assign or delegate its rights and
obligations under this Agreement without the prior written consent of the
other.  For purposes of this Section 33,
the acquisition, merger, consolidation, or change in control of Supplier or any
assignment by operation of law shall be deemed an assignment that requires
Buyer’s written consent. Buyer may cancel this Agreement for cause should
Supplier attempt to make an unauthorized assignment of any right or obligation
arising hereunder.


 


33.                               APPLICABLE
LAW


 


This Agreement is to be
construed and interpreted according to the laws of the State of Delaware,
excluding its conflict of laws provisions. The Parties agree that the
predominance of this Agreement is the sale of goods, and agree that the
Delaware version of the Uniform Commercial Code, Article 2, shall be
applicable to this Agreement.  The venue for any such litigation shall be
in the State or Federal Courts having jurisdiction over matters brought in
Delaware and both Parties agree to submit to the jurisdiction of such
courts.   For the delivery of Items and Services to Buyer’s
facilities in Ireland, in the event of a conflict between applicable U.S. law
and the local law of such jurisdiction, local law shall prevail in regard to any
conflict.


 


34.                               HEADINGS


 


The headings provided in this Agreement are for convenience only and
shall not be used in interpreting or construing this Agreement.


 


35.                               SURVIVAL


 


The provisions of Sections: 11, 14, 15, 16, 18, 19, 21, 22, 25, 30, 31,
32, 33 and Paragraph 5D shall survive the termination or expiration of this
Agreement.  In addition, any right or
legal obligation of a Party contained in any Addendum or Amendment, which by
its express term or nature would reasonably extend for a period beyond the term
of the Agreement, shall also survive the termination of the Agreement for such
extended period.


 


IN WITNESS WHEREOF, the Parties hereto have
caused this Agreement to be executed by their duly authorized representatives,
and effective as of the date first written above.


 


19

















 


	
  INTEL
  CORPORATION

  	
  KMG
  ELECTRONIC CHEMICALS, INC. (“SUPPLIER”)

  
	
   

  	
   

  
	
  Signature:

  	
  /s/
  Mark Denney

  	
   

  	
  Signature:

  	
  /s/
  J. Neal Butler

  
	
  Printed
  Name:

  	
  Mark
  Denney

  	
   

  	
  Printed
  Name:

  	
  J.
  Neal Butler

  
	
  Title:

  	
  Commodity
  Manager

  	
   

  	
  Title:

  	
  President
  and CEO

  
	
  Date:

  	
  May 5,
  2009

  	
   

  	
  Date:

  	
  May 12,
  2009

  



 


20