Free Declaration - District Court of Delaware - Delaware

Case 1:07-cv-00140-JJF Document 37 Filed 07/05/2007 Page 1 of 3
IN "[`HE UNITED STATES DISTRICT COURT
l¢`Ol%. THE DISTRICT OF DELAWARE I
Stlttnii, ILC, ) I
a Doitiwarc limitctl liability company, )
I i
[‘l:iintil"F, ) i
vs. · ) Civil fiction No. 07··140-JJF .
_ . I I
.1 IIEIISI IIIY CANAIJA INC., ] ;
an Ontririo, (.,i£tllt'ICi&1 corporation, . ) j
I
iloicntlaiit. ) ·
--_,...,,.--......,....,..-,...................Y) .
IllIt”i’tII¤ll\1ItN'l‘AlI l‘tltCLARA'l`IDN DF KIMBERLY IVICIIUCAS
1. On Juno 6, 2007, I cxcoutcd at dcolaration in support of Ilorslroy Cnnada’s Motion to
` l)isn‘iiss_titc Complaint in tho nhovcfrol`orcnood cass. That dcclarntion was iilcd in this
Court on Juno 8, 2007. Attcr matting, tho affidavits of Lanrio Cradiclt, Cannon Compas and
Cindy Wright lilcd by Solac on Juno 25, 2007, I am now snpplomonting my prcvious
tlcclnrntion with adtiitionnl facts in support of IIci‘sltsy Conacla’s Motion to Dismiss thc
Jtinonilorl (Tomphiint in thc abovc—roI`crcncccl caso. Toons that I dcfincd in my tirst
iicclarntion will continuo to havn thc samc moaning whon I uso thom in this dcclctnttolt.
2. in purtttgroplt 24 oI`Ito1· alliclavit, Ms. Crotiiclc otatos that it was ncvcr hcr unclcrstanding
that Ilorsitoy tlzinadu was contractzually obligatcd to purclinsc tho “prccisc amount" of
ptoiincts that wcrc thc subjcct of supply sgrccmcnts lictwcon Hcrshoy and Soiac. Ms.
Campos has givorz similar. cvidoncc in hor tftidavit. l do not bcliovc this statoinont
accnratoiy roflccts Ilcrsltcy Canacla’s obligation to purchase IP soy Iocithin under tho
20l)C>st1ppIy ap,rccmont. For thc rcasons ottplttirtodintl1o11oxtpa1‘agtupii, in agrccing to
tho 2000 Quantity Contract, 1-tcrsltcy Ctmacio did commit to pnrchaso at substantial
antoont of IP soy lccitliin from Solac and to uso its bcst cftints to purcliaso 250,000
potmtls oI`tliatp1·otiuct.
3. “l`lit~ fitttio Quantity Contract rclatcs to a opccial typo of soy locithin ltnownas ‘°idcntity
prosoi·vutt" or “ll“’ soy iccitiiin. During thc oogotiatioits loading to tho 2006 Quantity
(‘ontr:iot, Ms. Crntlick itrfonnott inc that Solao imports IP soy locithin From Brasil and
must niulto spocial logistical ammgoinonts in nclvanco if it is to supply this particular
ptctluct. Ms. Ctnrliclt told mo that Solao III•3l'BI`D1'C roquircd it volnmo contntittnont tiom
llcntlmoy Cnnacltt bcfotc it could agroo to supply IP soy lccithin. Accordingly, on bohalf E
of Ilorshoy Cannon, I ntarlo tho yolutnc cotnrnitntont to Ms. Cradicic, as sot out in thc
2000 Quantity {Zontract. In doing so, I undcrstood that Soloc was rolying upon Horshoy
t'nuntl¤’s ponoral coinntitincnt to purciiasc significant quantities of IP soy Iocithin in Q
matting ztrrziiigoiitorits to supply that product nntlor tho 2006 Quantity Contract. I also `

Case 1:07-cv-00140-JJF Document 37 Filed 07/05/2007 Page 2 of 3 7
tutdcrstcotl that llcrsltey Canada would be breaching its eotnmitntent if it were to 7
subsequently purchase alt of its IP soy lecithin from another supplier, for example. 7
4. . I note that some supply contracts entered by I-lershcy (like that attached to Ms. Compass` i
al`litl;1vit) stlttlt: tltttt ‘“CON'T`RAC'I` QU.¢\NTl'1`IES ARE APl’ROXIMA'I`E", but no such t
statement appears on the Face ofthe 2006 Quantity Contract for the supply of IP soy .
lecithin. » p
5. Ms, Cradictr has testilicd in her atliclavit that she believes she did not receive a copy of is
_ the 2006 Quantity (jotttrztct: that l sent to lter on .Ta;nuary 10, 2006. She suggests that she {
dial not receive it because l did not send it to the correct address or Fax ttttmbcr.
blotwitltstttttdinp, Ms. C‘radick’s stated belief that she never personally received the 2006 t
Quantity (lontrztct, l am oenlitlent that I sent the 2006 Quantity Contract to Solae on
.tnnnary I0, 2006- ‘
G. As to the suggestion that I may have used out—dated contact information, as a matter of
course, t do not rely on the addresses or fax numbers that appear on a Quantity Contract
tbnn when it is gettcrttted by our enterprise software system. Tn my experience, the
atltlrusscs and thx numbers used by sales representatives. often change and, for that
reason, the inlbrmation that appears on forms generated by our enterprise software
system are sometimes incorrect. Rather than rcly on these forms, I will refer to a y
busittcss card or recent email to obtain an accurate address or tax number bclbrc sending
n t_}n;uttlty tZlentt·ttct. As the December I4, 2005 email that Ms, Crediclc attached to ber ;
nllitlavit shows, I had current contact information For Ms. Cradle]: in January of 2006 ;
tteunusc Ms. Cracliclt provided it to 1110. i
7. lvls. Wt·igltt states in hcr affidavit that she sent Solae’s "revct·se terms" to a nuntber et`
people working at manufacturing plants operated by Hershey and Hershey Canada. As
Ms. tlfradiclr is aware, supply contracts between Solae and Hershey Canada were not Q
nctzolitttetl at the plant level. None of thc plant employees refened to by Ms. Wright had I
any authonty to neggotiate supply contracts Otto accept such contract tenns on behalf of `
llursitcy Cnttattltt. l
I tiecltttt: uurlcr penalty ct` perjury that the foregoing is true and correct.
ltxectttccl on July 5, 2007 Z
Kintlterly cT.ucas f

Case 1 :07-cv-00140-JJF Document 37 Filed 07/05/2007 Page 3 of 3 A
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CERTIFICATE OF SERVICE
I hereby certify that on July 5, 2007, I electronically tiled the foregoing with the Clerk of
Court using CM/ECF which will send notification of such iiling(s) to the following and which
has also been served as noted:
HAND DELIVERY
P. Clarkson Collins, Jr. ,
Katherine J. Neikirk
Morris James, LLP
500 Delaware Avenue, Suite 1500 $
Wilmington, Delaware 19899
I further certify that on July 5, 2007, the foregoing document was sent to the following
non—registered participants in the manner indicated:
BY ELECTRONIC MAIL
Scott L. Winkelman
Monica M. Welt J
Crowell & Moring LLP I
1001 Pennsylvania Ave. N.W. j
Washington, D.C. 20004-2595 p
teven J. ` eman (#4025) A
RLF1-smsoo-1 f