Exhibit 10.34
Portions of this document have been redacted pursuant to
a request for confidential treatment. Material that has been
deleted is marked by brackets and an asterisk ([***]).
SALES AGREEMENT
THIS AGREEMENT, made this 8th day of May, 2007, by and between KOPPERS, INC., a
corporation duly organized under the laws of the Commonwealth of Pennsylvania
and having its principal place of business at 436 Seventh Avenue, Pittsburgh, PA
15219­1800 (hereinafter "Seller"), and KMG-BERNUTH, INC., a corporation duly
organized under the laws of Delaware, and having its principal place of business
at 10611 Harwin, Suite 402, Houston, TX 77036 (hereinafter "Purchaser").
RECITALS
WHEREAS, Seller is engaged in the business of producing the Products
(hereinafter defined) at one or more locations and Purchaser is engaged in the
business of selling the Products; and
WHEREAS, Seller desires to sell and Purchaser desires to purchase the Products;
NOW THEREFORE, in consideration of the mutual premises and covenants hereinafter
set forth, the parties agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Agreement, the following words, terms and phrases, where
written with an initial capital letter, shall have the meanings assigned to them
in this Article 1 unless the context otherwise requires:
1.1.
AFFILIATE. "AFFILIATE" SHALL MEAN ANY CORPORATION OR OTHER ENTITY
THAT CONTROLS, IS CONTROLLED BY, OR IS UNDER COMMON CONTROL WITH ANOTHER PARTY
TO THIS AGREEMENT. A CORPORATION OR OTHER ENTITY SHALL BE REGARDED AS IN CONTROL
OF ANOTHER CORPORATION OR ENTITY IF IT OWNS OR DIRECTLY OR INDIRECTLY CONTROLS
MORE THAN FIFTY PERCENT (50%) OF THE VOTING STOCK OR OTHER OWNERSHIP INTEREST OF
THE OTHER CORPORATION OR ENTITY, OR IF IT POSSESSES, DIRECTLY OR INDIRECTLY, THE
POWER TO DIRECT OR CAUSE THE DIRECTION OF THE MANAGEMENT AND POLICIES OF THE
CORPORATION OR OTHER ENTITY OR THE POWER TO ELECT OR APPOINT FIFTY PERCENT (50%)
OR MORE OF THE MEMBERS OF THE GOVERNING BODY OF THE CORPORATION OR OTHER ENTITY.
1.2.
PRODUCT(S). "PRODUCT(S)" SHALL MEAN THE COAL TAR DERIVED CREOSOTE
OR CARBON BLACK PRODUCTS DESCRIBED IN SCHEDULE 1 HERETO.
1.3.
TERM. "TERM" SHALL HAVE THE MEANING SET FORTH IN SECTION 9.1 OF
THIS AGREEMENT.
ARTICLE 2
PRODUCTS QUANTITY
2.1.
QUANTITY. SELLER AGREES TO SELL, AND PURCHASER AGREES TO PURCHASE,
THE QUANTITY OF PRODUCTS DETERMINED UNDER SCHEDULE 2 HERETO.
2.2.
PRODUCTS SPECIFICATIONS. ALL PRODUCTS SOLD PURSUANT TO THIS
AGREEMENT SHALL SATISFY THE SPECIFICATIONS SET FORTH ON SCHEDULE 1, ATTACHED.
ARTICLE 3
PRICE AND PAYMENT
3.1.
PRICE. PURCHASER SHALL PAY THE PRICE DETERMINED UNDER SCHEDULE 2
FOR PRODUCTS PURCHASED UNDER THIS AGREEMENT. QUANTITIES SOLD SHALL BE BASED ON
SELLER'S NET WEIGHTS, UNLESS PROVEN TO BE IN ERROR, WITH P2 AND CREOSOTE
PETROLEUM SOLUTION DENSITY ASSUMED TO BE 9.15 LB PER GALLON.
3.2.
PAYMENT. PAYMENT SHALL BE DUE NET THIRTY (30) DAYS FROM THE DATE
OF INVOICE FOR PRODUCTS DELIVERED HEREUNDER. INTEREST SHALL BE DUE ON ALL UNPAID
BALANCES AFTER 35 DAYS FROM DATE OF INVOICE, AT THE RATE OF 1 % PER MONTH.
ARTICLE 4
PURCHASE ORDERS AND DELIVERY
4.1.
PURCHASE