The opinion of the court was delivered by: LECHNER
A. The Parties and Other Significant Persons
B. Apollo's Fuel Additives and Pollution Control Technology
C. The Bid for the NAPOCOR Trial Contract
1. Apollo's Version of Events
2. Centrosphere's Version of Events
1. The First Agency Contract
2. The Second Agency Contract
E. Performance of the Trial Contract
F. Completion of the Trial Contract
G. Relationship Between Apollo and Centrosphere After 1 January 1992
H. Recent Dealings Between Apollo and NAPOCOR
I. Recent Actions By Centrosphere
1. Jurisdiction Pursuant to the New Jersey Long Arm Rule
b. Fair Play and Substantial Justice
2. Adequacy of Service of Process
B. Preliminary Injunction
2. Likelihood of Success on the Merits
b. Breach of Fiduciary Duty
(1) An Agent's Duties to its Principal
(2) Termination of the Agency Relationship
(3) What Constitute Trade Secrets
(4) Apollo's Claim that Centrosphere Breached Its Fiduciary Duty By Purporting to Act as Apollo's Agent Following Termination of the Second Agency Contract
(5) Apollo's Claim that Centrosphere Breached Its Fiduciary Duty By Utilizing Confidential Information and Trade Secrets in Competition with Apollo
d. Intentional Interference With Prospective Contractual Relations
a. The New Contract and the Interim Contract
b. The Potential Contracts
This is an action brought by plaintiff Apollo Technologies Corp. ("Apollo") against Centrosphere Industrial Corp. ("Centrosphere") arising out of an agency agreement in which Centrosphere agreed to market fuel additives and equipment on behalf of Apollo to the National Power Corporation ("NAPOCOR") of the Republic of the Philippines (the "Philippines"). Apollo alleges jurisdiction pursuant to 28 U.S.C. § 1332(a)(2).
On 2 September 1992, Apollo applied for a temporary restraining order ("TRO") and a preliminary injunction
(the Preliminary Injunction") to restrain and enjoin Centrosphere
from (1) competing with Apollo in the sale to NAPOCOR of fuel additives, equipment or other products or technologies competitive with those manufactured or sold by Apollo, (2) interfering in Apollo's sale of fuel additives to NAPOCOR, (3) utilizing or disclosing confidential information or trade secrets received from Apollo, including technologies and methods utilized in the selection, testing, operation and evaluation of Apollo's fuel additives and equipment and (4) acting or purporting to act as an agent of, or offering to sell fuel additives, equipment or other products made or sold by, Apollo. Moving Brief at 1; Becker Aff., P 1.
Centrosphere submitted a cross motion to dismiss the action for insufficient service of process and for lack of personal jurisdiction over Centrosphere pursuant to Fed. R. Civ. P. 4.
Opp. Brief at 1; Widjaja Aff., P 1. In the alternative, should a preliminary injunction be granted to Apollo, Centrosphere cross-moves for a mutual preliminary injunction enjoining Apollo from: (1) refusing to provide Centrosphere with fuel additives, equipment and other products manufactured and sold by Apollo, for sale by Centrosphere to NAPOCOR, (2) interfering with Centrosphere in its relationship with NAPOCOR and (3) dealing directly with NAPSCOR, or dealing through organizations other than Centrosphere, for the purpose of providing fuel additives and related technologies to NAPOCOR. Opp. Brief. at 1; Widjaja Aff., P 1.
On 2 September 1992, Judge Alfred M. Wolin of this court denied Apollo's request for a TRO and ordered Centrosphere to show cause before this court on 18 September 1992 as to why an order granting the Preliminary Injunction should not issue. On 24 September 1992, oral argument was held
to determine (1) whether personal jurisdiction exists over Centrosphere, (2) the adequacy of the process served on Centrosphere and (3) whether any preliminary injunction should issue. For the reasons set forth below, the Preliminary Injunction is denied; the cross-motion to dismiss or, if the Preliminary Injunction was granted, to make the Preliminary Injunction mutually enforceable, is also denied.
A. The Parties and Other Significant Persons
The founder and president of Apollo is Dr. Ira Kukin ("Kukin"). Kukin appears to be an expert in the pollution control field and an inventor of more than twenty-five products designed to control pollution and maximize energy efficiency through chemical means. Becker Aff., P 9. The chief operating officer and vice president of Apollo is Donald G. Becker ("Becker"). Becker Aff., P 1; Becker Reply Aff., P 1. The vice president of engineering for Apollo is William Pepe ("Pepe"). Pepe Aff., P 1.
Centrosphere is a corporation organized under the laws of the Philippines with its sole place of business in the Philippines. Widjaja Aff., P 4; Complaint, P 2; Opp. Brief at 1. Centrosphere is neither authorized to do business in either the United States or its territories nor does it maintain any offices in the United States. Widjaja Aff., P 4; Opp. Brief at 1-2.
Only seven shareholders own stock in Centrosphere. Becker Aff., P 37 These shareholders include Marian Mercado-DeLeon ("Mercado-DeLeon"), Fidel L. Bermudez ("Bermudez") and Ed Depano ("Depano"). Id.; Complaint, P 4. Mercado-DeLeon is also the former president and general manager of Centrosphere. Widjaja Aff., P 12; Becker Aff., P 37.
The president of Centrosphere is Alexander Widjaja ("Widjaja"). Widjaja Aff., PP 1, 4; Complaint, P 4; Becker Aff., P 41. Widjaja became president of Centrosphere in April 1992. Widjaja Aff., P 4. In addition to Centrosphere, since 1985 Widjaja has been an officer or shareholder in several Philippines corporations which have supplied goods and services to Centrosphere. Id., P 5; Opp. Brief at 2. Two of these corporations are Joseph London ("London") and East/West Consolidated Services ("East/West"). Widjaja Aff., P 5; Opp. Brief at 2.
Centrosphere was formed in April 1990 for the purpose of supplying fuel additives and related technology to entities in the Philippines. Widjaja Aff., P 10; Opp. Brief at 2-3. Prior to April 1990, efforts had been made by Widjaja and East/West to establish interest in such products in the Philippines. Widjaja Aff., P 10; Opp. Brief at 2.
B. Apollo's Fuel Additives and Pollution Control
Apollo sells pollution control chemicals and related equipment to customers throughout the world, including utility customers such as NAPOCOR, the Israel Electric Company, the Comission Federal de Electricidad in Mexico and Public Service Electric & Gas in New Jersey. Becker Aff., P 8; Kukin Exhibits, Ex 4. Chief among Apollo's pollution control products are fuel additives. Complaint, P 1. These fuel additives are used to make oil fired boilers at utility power plants operate more efficiently and for longer periods of time without the need for maintenance and repair. Becker Aff., P 11. In addition, these additives reduce air pollution by reducing the emissions produced by power plant boilers. Id.
Apollo holds patents covering the formulations of many of its fuel additives, including those that were marketed to NAPOCOR. Id., P 12. Apollo also holds patents on the various forms of electronic equipment utilized to inject the additives into the boilers. Id.
According to Apollo, operating the fuel additive system requires a highly specialized knowledge. Id., PP 13-14. For instance, Apollo indicates that knowledge of (1) the specific rates of additive feed, (2) the proper location of additive injection ports within the boilers, (3) the appropriate time to initiate and shut down application of the additives, (4) the methods of testing flue gases to determine the effectiveness of the products and (5) the methods for operating the feed equipment during various boiler operating conditions is essential to successful operation of the system. Id., P 13. If, for example, the additives are supplied at the wrong time or in the wrong dose, the additives could cause the boiler to shut down rather than enhance its performance. Id., P 14.
Apollo emphasizes that it "takes great pains to preserve the confidentiality" of this information. Complaint, P 18; Becker Aff., P 15. Such information is disclosed only when essential to Apollo's operations and then only if the party receiving the information signs a confidentiality agreement with respect to the disclosure. Complaint, P 18; Becker Aff., P 15. Apollo states such agreements are obtained from "all Apollo employees, as well as any agents, testing laboratories and outside manufacturers that Apollo utilizes." Complaint, P 18; Becker Aff., P 15.
C. The Bid for the NAPOCOR Trial Contract
In 1989 or 1990, NAPOCOR invited interested parties to submit bids for a four month trial contract (the "Trial Contract") to control gaseous waste from its Malaya Thermal Power Plant, Units 1 and 2 (the "Malaya Plant").
Becker Aff., P 16; Widjaja Aff., P 11. The parties were asked to supply a product which could minimize the damaging effects caused by flue gases to power production boilers, when those boilers utilize fuel oil with a high sulfur and high vanadium content. Becker Aff., P 16.
In October 1990, Centrosphere submitted a bid to NAPOCOR. Id., P 18; Opp. Brief at 3. On 14 December 1990, NAPOCOR awarded the Trial Contract to Centrosphere. Becker Aff., P 19, Ex. B (copy of Trial Contract); Widjaja Aff., P 11, Ex. 2 (same). Both Apollo and Centrosphere acknowledge Centrosphere solicited the assistance of Apollo in performing the Trial Contract. When this assistance was solicited, however, is disputed.
1. Apollo Version of Events
According to Apollo, Centrosphere contacted Apollo prior to bidding. Becker Aff., P 17; Kukin Aff., P 5. Apollo contends the events occurred as follows. In April 1990, Apollo received a letter, dated 16 April 1990 (the "16 April Letter"), from Centrosphere indicating NAPOCOR was considering the use of chemical additive, to improve the efficiency of boilers and was suggesting a trial program at the Malaya Plant (the "Trial Program"). Kukin Aff. P 5(a); Kukin Exhibits, Ex. 1 (16 April Letter). The 16 April Letter specifically stated:
[NAPOCOR] requested [Centrosphere] to submit a detailed study on the use of chemical additives and to come out with a proposal for the Trial Program on its Malaya  Plant. . . . It took us only a short time to know that [Apollo] is the leader in this field of chemical additives. With your impressive product and the work we have made to introduce the Trial Program of chemical additives plus our established relations with [NAPOCOR], we can look forward to a successful joint venture with your company.
Kukin Exhibits, Ex 1. Centrosphere concluded the 16 April Letter by requesting permission to send "one or two of our key people to your company" to discuss the proposed joint venture. Id.
It is unknown whether Apollo responded to the 16 April Letter, but apparently it was initially uninterested in Centrosphere's offer. Kukin Aff., P 5(a). In July 1990, Apollo received another letter from Centrosphere, dated 9 July 1990 (the "9 July Letter"), indicating that NAPOCOR had begun to take bids for the Trial Program. Id.; Kukin Exhibits, Ex. 2 (9 July Letter). The 9 July Letter stated: "As we stated in [the 16 April Letter, Centrosphere is] interested in representing [Apollo] in this bidding." Kukin Exhibits, Ex. 2. The 9 July Letter reiterated the offer to send Centrosphere personnel to Apollo's offices in New Jersey and suggested that Apollo temporarily certify Centrosphere as a distributor of Apollo's product to enable Centrosphere to make the bid to NAPOCOR. Id.; Kukin Aff., P 5(b).
On 10 July 1990, Apollo replied to Centrosphere. Kukin Aff., P 5(c); Kukin Exhibits, Ex. 3 (letter from Kukin to Mercado-DeLeon, dated 10 July 1990 (the "10 July Letter")). Apollo expressed reservation about proceeding with Centrosphere's proposal due to Apollo's unfamiliarity with Centrosphere, the expense of the Trial Program and the uneasy political climate in the Philippines. Kukin Aff., P 5(c); Kukin Exhibits, Ex. 3. Nevertheless, Apollo authorized Centrosphere to go ahead with the bidding and granted Centrosphere a certificate of distributorship. Kukin Aff., P 5(c); Becker Aff., P 17; Kukin Exhibits, Exs. 3, 4 (Certificate of Distributorship from Apollo to Centrosphere, dated 10 July 1990). Although the 10 July Letter indicated this distributorship was to be temporary, the Certificate contains no indication of temporariness. Kukin Exhibits, Exs. 3-4.
By the 10 July Letter, Apollo supplied centrosphere with the technical, product and customer information needed to complete a proposal and bid request to NAPOCOR for the Trial Program. Becker Aff., P 17; Kukin Exhibits, Exs. 3-4. In October 1990, centrosphere advised Apollo that NAPOCOR was going to award Centrosphere the Trial Contract. Kukin Exhibits, Ex. 5 (letter from Widjaja to Kukin and Pepe, dated 22 October 1990 (the "22 October Letter")).
In November 1990, the parties exchanged more correspondence in anticipation of being awarded the Trial Contract. In a memorandum, dated 7 November 1990,
Apollo apparently quoted centrosphere prices for a number of Apollo's fuel additive products and reviewed the terms under which it would do business with Centrosphere. Kukin Aff., P 5(e). Apollo also asserts it informed centrosphere that it would begin assembling the additive and test equipment once Apollo received a purchase order and a letter of credit (the "Letter of Credit") from either Centrosphere or NAPOCOR. Kukin Aff., P 5(e).
On 8 November 1990, Centrosphere replied to Apollo and requested that Apollo's delivery of the additives be made within seventy-five days of receipt by Apollo of the Letter of Credit. Id., P 5(f); Kukin Exhibits, Ex. 6 (letter from Widjaja to Pepe, dated 8 November 1990). On 9 November 1990, Apollo informed Centrosphere that Apollo would attempt to deliver the additives and equipment within seventy-five days after receipt of the Letter of Credit but could not guarantee this turnaround time. Kukin Aff., P 5(f); Kukin Exhibits, Ex. 7 (letter from Pepe to Widjaja dated, 9 November 1990 (the "9 November Letter")). The 9 November Letter requested that Centrosphere send its personnel to Apollo's manufacturing facility in Israel for training in Apollo's fuel additives systems technology. Kukin Exhibits, Ex. 7. The 9 November Letter also indicated that either Centrosphere or Apollo could sign the Trial Contract with NAPOCOR; in either event, Centrosphere would receive a fifteen percent commission from the sale of Apollo's products. Id.
On 14 December 1990, NAPOCOR awarded the Trial Contract to Centrosphere.
Becker Aff., P 19, Ex. B (copy of Trial Contract); Widjaja Aff., P 11, Ex. 2 (same). NAPOCOR agreed to pay nearly two million dollars (the "Purchase Price") in return for a supply of fuel additives and related technologies on a four month trial basis. Becker Aff., PP 18-19; Complaint, P 7; Widjaja Aff., P 13. Forty percent of the Purchase Price was payable upon delivery of the additives to NAPOCOR. Becker Aff., P 19, Ex. B.; Widjaja Aff., Ex. 2 Payment of the balance of the Purchase Price was dependant on the additives meeting NAPOCOR's specific objectives. Becker Aff., P 19.
2. Centrosphere's Version of Events
Centrosphere argues it contacted Apollo only after it won the bid. Opp. Brief at 3. Centrosphere states: "Having won the bid, but lacking the requisite technology and financing to support this project on its own, Centrosphere contacted Apollo." Id. Centrosphere adds that the Trial Contract listed the types of fuel additives to be supplied generically and without reference to brand names or specific manufactures. Id.
Apollo attempts to rebut Centrosphere's position by contending that Centrosphere could not have submitted the bid without its assistance. Complaint, P 2; Becker Aff., P 4. Specifically, Apollo asserts that, prior to Centrosphere's contact with Apollo, Centrosphere had no business dealings or experience with air pollution control chemicals or fuel additives. Complaint, P 2; Becker Aff., P 4; Moving Brief at 7.
It appears, however, that Widjaja and Centrosphere may have developed contacts at NAPOCOR and some experience in fuel additive technology prior to its contact with Apollo. Widjaja Aff., PP 6-9. According to Centrosphere, London, East/West and Centrosphere had supplied NAPOCOR with "coatings, chemicals, supplies, fuel additives and expertise in their application," particularly in the form of paints and water purification chemicals and systems. Id., P 6; Opp. Brief at 2.
Centrosphere states that in 1987 or 1988, while Widjaja was the Executive Vice President of East/West, the company was approached by Dr. Alfred E. Kober ("Kober") regarding the marketing of fuel additive and related technologies in the Philippines. Widjaja Aff., P 8; Opp. Brief at 2. Kober was a former scientist at Apollo for ten years and was knowledgeable in fuel additive technology. Becker Aff., Ex. Q; Widjaja Aff., P 8. Under Kober's direction, East/West began marketing fuel additives and related technologies in the Philippines but was unsuccessful in these efforts. Widjaja Aff., P 8; Opp. Brief at 2. As evidenced by a letter sent by Apollo to East/West in February 1989, Apollo was aware that East/West was working with Kober and was marketing fuel additives in the Philippines. Widjaja Aff., P 9, Ex. 1 (letter from Kukin to Tristan Calasanz, dated 15 February 1989).
On 31 December 1990, Apollo and Centrosphere entered into two contracts establishing a written agency relationship (collectively, the "Agency Contracts") to assist in performance of the Trial Contract. Complaint, PP 8, 38; Becker Aff., P 20; Kukin Aff., P 5(k); Widjaja Aff., P 15, Ex. 3 (copies of Agency contracts). Negotiations occurred over the four day period from 28 December 1990 to 31 December 1990. Widjaja Aff., P 15; Kukin Aff. P 5(j).
The Agency contracts were negotiated and executed at Apollo's offices in New Jersey. Becker Aff., P 20; Kukin Aff., P 5(i); Widjaja Aff., P 15. Present during the negotiations were Widjaja, Mercado-DeLeon and Reggie Liongson ("Liongson") for centrosphere and Kukin, Becker and William Pepe ("Pepe") for Apollo.
Widjaja Aff., P 15; Opp. Brief at 3-5; Kukin Aff., P 5(j). Neither party appears to have been represented by counsel at any point throughout the four day negotiating period. Kukin Aff., P 5(j); Widjaja Aff., P 15. At the conclusion of the negotiations, Mercado-DeLeon remained in New Jersey while Widjaja and Liongson returned to the Philippines. Widjaja Aff., P 18.
1. The First Agency Contract
The first contract (the "First Agency contract") was entitled the "Agreement for Trial at Malaya Power Station of NAPOCOR." Widjaja Aff., Ex. 3. The First Agency Contract memorialized the discussions of 29 December 1990 and set forth the respective obligations, financial and otherwise, of Apollo and Centrosphere as they specifically related to the performance of the Trial Contact. Id.; Opp. Brief at 4. During negotiations, Centrosphere suggested a number of changes be made to the First Agency Contract and signed the First Agency Contract once those changes were implemented.
Widjaja Aff., P 15. The parties agreed that performance under the First Agency Contract was to be controlled by a second agency contract discussed below. Id., Ex. 3.
Under the First Agency Contract, Apollo was to receive $ 1,995,163 in return for supplying its fuel additives, equipment and technology. Id. Payment was to be made directly from NAPOCOR to Apollo.
Id.; Becker Aff., P 19, Ex. C. As indicated in the Trial Contract, forty percent would be paid at the time of shipment of the additives and equipment to NAPOCOR, with the balance payable if the Trial Program proved successful. Widjaja Aff., Ex. 3; Kukin Aff., P 6. Centrosphere would be paid a fifteen percent commission. Id. One hundred twenty one thousand dollars was payable to Centrosphere at the time payment was made by NAPOCOR to Apollo, with the balance payable after final payment was made to Apollo by NAPOCOR. Widjaja Aff., Ex. 3.
The First Agency Contract further provided that Apollo would finance the shipping and insurance costs of additives and equipment to NAPOCOR. Id.; Becker Aff., P 19; Kukin Aff., P 6. Apollo also agreed to assume the risk of loss. Becker Aff., P 19; Kukin Aff., P 6. As indicated previously, Centrosphere was to obtain the Letter of Credit from NAPOCOR before 31 January 1991. Widjaja Aff., Ex. 3.
The First Agency Contract contained an addendum (the "First Agency Contract Addendum"). Widjaja Aff., Ex. 3. The First Agency Contract Addendum provided that the First Agency Contract would not be effective without written verification by counsel for both Apollo and Centrosphere that the First Agency Contract "is accepted by both corporations' legal counsel." Id.; Kukin Aff., P 5(k). Such confirmation was to be received by 31 January 1991 and, if not received, the First Agency Contract was to be considered binding. Kukin Aff., P 5(k); Widjaja Aff., Ex. 3. According to Apollo, no confirmation on behalf of Apollo or Centrosphere occurred by 31 January 1991 or at any time thereafter. Kukin Aff., P 5(k).
2. The Second Agency Contract
The second contract signed on 31 December 1990 (the "Second Agency Contract") established the general terms of the agency relationship between Centrosphere and Apollo. Widjaja Aff., Ex. 3. According to Centrosphere, the second Agency Contract had not been seen or discussed by Centrosphere prior to its presentation. Id., P 17; Opp. Brief at 4. Also according to Centrosphere, Centrosphere signed the second Agency contract without reading it and without suggesting any changes." Widjaja Aff., PP 15, 17; Opp. Brief at 4.
Pursuant to the second Agency Contract, Centrosphere was appointed as Apollo's agent in the Philippines for the sale of Apollo's products. Complaint, P 9; Becker Aff., P 21; Widjaja Aff., Ex. 3. For its services, Centrosphere was to receive a commission of fifteen percent of Apollo's net receipts from additive sales made during the term of the second Agency Contract, subject to certain deductions and allowances. Complaint, P 14; Becker Aff., P 28; Widjaja Aff., Ex. 3.
In conjunction with its appointment, Centrosphere was obligated "to devote its best efforts to the promotion of the sale of Apollo's products," "to engage a technical sales executive on a full time basis" and "to supplement its staff with adequate technical service, mechanical service and sales associates to handle the growth of Apollo's business in the Philippines." Becker Aff., P 26 (quoting Ex. A); Complaint, P 13; Widjaja Aff., Ex. 3.
The Second Agency Contract also provided that Centrosphere's personnel were responsible for providing any technical and mechanical services required in the Philippines. Complaint, P 13; Becker Aff., P 26; Widjaja Aff., Ex. 3. Subsequently, Apollo was informed by Centrosphere that Widjaja would serve as Centrosphere's chief technical expert and would supervise the Trial Contract and Centrosphere's performance of its obligations under the Agency Contracts. Becker Aff., P 41; Kukin Aff., P 5(d).
The First Agency Contract specifically obligated Centrosphere to assist Apollo in its efforts to obtain business from NAPOCOR and to provide technical engineers and mechanics to apply Apollo's fuel additives on-site at the Malaya Plant. Complaint, P 15; Becker Aff., P 27; Widjaja Aff., Ex. 3. To enable Centrosphere to fulfill these obligations, the Second Agency Contract provided that Apollo would give Centrosphere access to customer lists, formulas, processes, data and know-how of Apollo and to confidential business information." Widjaja Aff., Ex. 3; Complaint, P 16; Becker Aff., PP 24, 27. The Second Agency contract referred to these items collectively as "company trade secrets. Widjaja Aff., Ex. 3; Complaint, P 16; Becker Aff., PP 24, 27. Centrosphere agreed in the Second Agency Contract not to disclose any trade secrets provided to it by Apollo without the written consent of Apollo.
Widjaja Aff., Ex.3; Complaint, P 12; Becker Aff., P 24.
Centrosphere also agreed in the Second Agency Contract not to "manufacture or sell" fuel additives, equipment, feeding systems or any other products or services competitive with Apollo's products in the Philippines. Widjaja Aff., Ex. 3; Complaint, P 11; Becker Aff., P 23. This non-compete clause was to last for the term of the Second Agency Contract and for a period of three years after its termination. Widjaja Aff., Ex. 3; Becker Aff., P 23; Kukin Aff., P 5(m).
The Second Agency Contract was expressly limited to a term of one year unless Centrosphere was able to obtain a "long term commitment" from a Philippine client within that time (the "Expiration Clause"). Widjaja Aff., Ex. 3; Opp. Brief at 5; Becker Aff., P 22; Kukin Aff., P 5(1). In the case of a long term commitment, the Second Agency Contract would be "extended for a minimum of two years and thereafter either party [would] be able to terminate on six months notice." Widjaja Aff., Ex. 3; Becker Aff., P 22.
Finally, the second Agency Contract provided that it was to be governed by "the laws of the state of New York, U.S.A." and that "any breach of [the Second Agency Contract] shall entitle Apollo, in addition to any other legal remedies available to it, to apply to any court of competent jurisdiction to enjoin any violation of this agreement."
Widjaja Aff., Ex. 3; Kukin Aff., P 5(m) (emphasis added).
E. Performance of the Trial Contract
Performance of the Trial Contract was to commence in the two Malaya Plant units on 30 November 1990 and 20 December 1990. Widjaja Aff., P 14 (quoting Trial Contract article II), Ex. 2. After three months, an evaluation was to be made, followed by a determination of whether the test should continue. Id., Ex. 2; Opp. Brief at 5; Becker Aff., Ex B. It was anticipated that a successful test would lead to a long-term contract with NAPOCOR. Opp. Brief at 5.
Shipment of the fuel additives to the Philippines appears to have been delayed following the award of the Trial Contract. Widjaja Aff., P 19). The parties dispute the extent and cause of this delay. According to Centrosphere, delay was caused because Apollo experienced supply problems and was unable to ship its fuel additives to the Philippines. Id.
Apollo's account is different. On 12 December 1990, Apollo informed Centrosphere that it had begun assembling the equipment necessary for the Trial Program, despite the fact that Centrosphere had not yet supplied the Letter of Credit. Kukin Aff., P 5(h); Kukin Exhibits, Ex. 8 (letter from Kukin to Widjaja, dated 19 December 1990 (the "19 December Letter")). The 19 December Letter reiterated that Centrosphere should dispatch an engineer to Apollo's Israel facility to learn about the fuel additives program and how to carry out the tests. Kukin Exhibits, Ex. 8. The 19 December Letter also indicated, however, that demand for Apollo's products and engineers in Eastern Europe had increased significantly and could result in production delays of Apollo's products.
As mentioned, from 28 December 1990 to 31 December 1990, the parties met in New Jersey (the "New Jersey Meetings") to discuss the Trial Contract and to formalize the relationship between Apollo and Centrosphere. See supra at pp.16-17. The Agency Contracts were signed during these meetings. See id. Although Centrosphere agreed to provide Apollo with the Letter of Credit by 31 January 1991, Widjaja Aff., Ex. 3; Kukin Aff., P 6, on 24 January 1991 the parties signed a "Letter of Understanding" providing that Centrosphere would arrange for Apollo to receive the Letter of Credit from NAPOCOR by 15 February 1991. Kukin Aff., P 7; Kukin Exhibits, Ex. 10.
In February 1991, Apollo asserts it delivered twenty-one container loads of equipment and chemicals to the dockside in Newark, New Jersey, pending receipt of the Letter of Credit. Kukin Aff., P 8. Although the Letter of Credit did not arrive, Apollo nevertheless shipped the twenty-one containers from Newark to the Philippines on 15 March 1991. Id.; Kukin Exhibits Ex. 11 (bills of lading, dated 15 March 1991, for the twenty-one container shipment). An additional seven containers of chemicals were shipped from Newark to the Philippines on 20 April 1991. Kukin Aff., P 8; Kukin Exhibits, Ex. 11 (bill of lading, dated 20 April 1991, for the seven container shipments). The Letter of Credit from NAPOCOR was received on 17 May 1991. Kukin Aff., P 8; Becker Aff., Ex. C (Letter of Credit, dated 17 May 1991 from NAPOCOR to Apollo.
Further delay (in the tests at the Malaya Plant was caused when hearings were initiated before the Philippines Securities and Exchange Commission by a bidder who had lost the Trial Contract. Widjaja P Aff., P 20; Opp. Brief at 6; Kukin Aff., P 10. The tests actually began in September 1991 and the Trial Contract was performed from September 1991 to 28 February 1992. Complaint, P 21; Widjaja Aff., P 21.
According to Apollo, Centrosphere neither sent engineering personnel to be trained by Apollo nor provided sufficient personnel to the Malaya Plant to oversee and operate the Trial Program.
Kukin Aff., PP 5, 10. Widjaja, who was supposed to supervise the Trial Program, apparently did not go to the Philippines despite being notified that the shipments of materials had commenced.
Id. P 9; Kukin Exhibits, Ex. 13 (letter from Kukin to Mercado-DeLeon, dated 6 June 1991). As a result, Apollo sent its own engineering personnel to the Malaya Plant to install the equipment, supervise the injection of additives, oversee the Trial Program and train and supervise local personnel. Kukin Aff., P 10.
On 29 October 1991, Apollo prepared a report on the preliminary results of the Trial Program. Id., P 11. This report was sent by Apollo to centrosphere for delivery to NAPOCOR. Id.; Kukin Exhibits, Ex. 15 (letter ...