DISTRIBUTOR AGREEMENT EXHIBIT 10.21
Pages where confidential treatment has been requested are stamped "Confidential
Treatment Requested. The redacted material has been separately filed with the
Commission." The appropriate section has been marked at the appropriate place
with a star (*).
26
DISTRIBUTOR AGREEMENT EXHIBIT 10.21
This Distributor Agreement (the "Agreement") is made this 30th day of
October, 1996, by and between Xxxxxx Corporation ("Xxxxxx"), a Delaware
corporation whose offices are located in Redmond, Washington, and ABS Global,
Inc. ("ABS"), a Delaware corporation whose offices are located in DeForest,
Wisconsin.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
1. DEFINITIONS
As used herein, the term
1.1 "Contract Term" shall mean that period referenced in Schedule A
attached hereto, which Schedule may be revised annually during the term of this
Agreement pursuant to Section 5.1.
1.2 "Product" shall refer to Xxxxxx external teat dip products.
1.3 "Territories" shall mean those countries outside the U.S. that
are set forth on Schedule B. Other territories may be added by agreement
between Xxxxxx and ABS and said agreement shall be in writing and appended to
this contract.
2. APPOINTMENT AND AUTHORITY OF ABS
2.1 Subject to the terms and conditions of this Agreement, Xxxxxx
hereby appoints ABS as the exclusive distributor of the Product for the
Territories. Xxxxxx shall not license or appoint any other person, corporation
or other entity, or authorize any other person, corporation or other entity to
act as a distributor for the Product in the Territories. ABS hereby accepts
said appointments and agrees to actively promote and sell the Product in the
Territories. ABS shall not sell a competing teat dip product in the Territories
during the term of this Agreement. The parties acknowledge that ABS is
marketing a pre-moistened towel product which shall not be considered a breach
of this Agreement.
2.2 ABS may appoint agents, dealers, or sales representative to act
on ABS's behalf for sales of the Product in the Territories provided that any
compensation to such agents, dealers, or representatives shall be solely ABS's
responsibility.
2.3 Subject to the terms and conditions of this Agreement, ABS is
authorized to sell the Product in such manner, at such prices and upon such
terms as ABS shall determine. ABS is an
27
independent contractor, not an agent or employee of Xxxxxx. ABS may continue to
supply accessories (cups, pumps, etc.) relating to the Product.
2.4 A. Labeling of the Product shall be as mutually determined by
Xxxxxx and ABS but shall include a notice of distribution by ABS including ABS's
trade names and trademark. Any changes to Product labels shall be mutually
agreed upon by Xxxxxx and ABS. ABS agrees to reimburse Xxxxxx for the design,
plates and printing costs of any labels changed and/or remaining at the
termination of this Agreement.
B. In any of ABS's activities relating to the promotion and
sale of the Product, Alcide's name and trademark shall always be prominently
displayed to protect Alcide's rights and goodwill in the same. Whenever
Alcide's corporate name and trademark are used in advertising and promotional
programs, Xxxxxx retains the right to review and approve same.
2.5 All trade names, trademarks and product names (the "Intellectual
Property"), excluding the ABS and American Breeders Service trademarks, under
which Product is sold shall be the property of Xxxxxx.
2.6 All product registrations shall be in the name of Xxxxxx, if
possible, or if not, then the name of ABS, or Alcide's and ABS's mutually agreed
designee. If this Agreement is terminated with respect to any Territory or
portion thereof for any reason, ABS will promptly and fully cooperate with the
transfer of product registrations to Alcide's designee for such Territory.
2.7 A. If Xxxxxx shall develop external teat dip products, Xxxxxx
shall give ABS the right of first refusal to market these Products in each
Territory covered by this Agreement.
B. If Xxxxxx shall develop and distribute additional bovine
health products through distributors other than ABS, Xxxxxx shall not establish
trade name(s) for such product(s) or promotional and/or advertising programs
with respect to such product(s) which could be reasonably construed by the end
user as associating such product(s) with ABS.
2.8 If this Agreement is terminated by ABS prior to its scheduled
termination date, ABS will not introduce or market a product formulated with
technology covered by Xxxxxx patents or products sold by ABS under this
Agreement, provided however, in such event, ABS will be permitted to distribute
a competitive line of uddercare products.
3. TERMS AND CONDITIONS OF SALES
3.1 All of ABS's orders for the Product shall be subject to the
terms and conditions set forth in this Section 3; no additional or different
terms set forth in ABS's or Alcide's purchase order, acknowledgment or other
forms or correspondence (other than an amendment to this Agreement pursuant to
Section 7.1 hereof) shall govern any sales of the Product by Xxxxxx to ABS.
28
3.2 Xxxxxx shall be responsible for appropriately packaging all
Product in packages suitable for use by ABS's customers. All shipments shall be
F.O.B. Manufacturing Plant location. Shipping costs shall be at ABS's expense
and ABS shall be responsible for arranging transportation. Xxxxxx shall make a
good faith effort to accommodate unscheduled orders. In addition, with each
unit of Product, Xxxxxx shall provide, at Alcide's sole expense, with respect to
the Products covered by that shipment:
(i) all necessary or appropriate instructions as to proper use of
the Product;
(ii) warnings on product limitations/safety as deemed appropriate;
and
(iii) limited warranty statements in the form attached hereto as
Schedule C.
3.3 Xxxxxx provides the limited warranty described in Schedule C and
warrants that Product delivered to ABS will be manufactured under Good
Manufacturing Practices standards as defined in the U.S. Food and Drug
Administration and will be free from defects. Alcide's sole obligation under
this warranty shall be limited to replacement without cost (except all costs for
shipping and handling) of any quantity of the Product sold. Xxxxxx also
warrants that Xxxxxx is authorized to enter in this Agreement and to grant ABS
the distribution rights provided for in Section 2.1. ABS warrants that all
advertising and promotional material developed by ABS will be in accordance with
the descriptions of Product provided by Xxxxxx and to the best of ABS's
knowledge will be accurate in all material respects. ABS warrants that ABS is
authorized to enter into this Agreement and this Agreement does not and will not
infringe upon any other agreements it may have.
3.4 Provided that the Product has been distributed by ABS in
accordance with this Agreement, Xxxxxx shall indemnify ABS and ABS's officers,
directors, employees, agents, dealers and sales representatives against any
claims which may arise due to Product defects or defects in instruction and
warnings as provided by Xxxxxx or which may arise due to any other breach by
Xxxxxx of its warranties set forth in Sections 3.2 and 3.3 hereof and attached
Schedule C. ABS agrees to indemnify Xxxxxx against any claims which may arise
due to ABS, its officers, directors or employees advising the use of the Product
in a manner inconsistent with the stated instructions and warnings on the
Product label. Xxxxxx and ABS shall give prompt notice to the other of any
claim, threatened claim or litigation which in any way relates to the Product
distributed under this Agreement. Xxxxxx and ABS shall provide reasonable
cooperation and assistance to each other in the defense of any claim or
litigation relating to the use of Product distributed under this Agreement.
3.5 The agreed upon purchase prices for Product for the Contract
Term shall be specified in Schedule D and may only be revised by Xxxxxx with
sixty (60) days prior written notice to ABS.
29
CONFIDENTIAL TREATMENT REQUESTED.
THE REDACTED MATERIAL HAS BEEN SEPARATELY
FILED WITH THE COMMISSION.
3.6 Payment terms shall be [*]. ABS agrees and understands that
interest shall be charged [*].
4. PROMOTIONAL ACTIVITIES
4.1 Xxxxxx shall regularly advise ABS of any new developments
concerning Product availability and formulation.
4.2 ABS will undertake such advertising and promotional activity
relating to Product as is deemed appropriate by ABS. Xxxxxx may participate
with ABS and other distributors in jointly sponsored promotional programs and
continue to sponsor with ABS the annual Presidents Club meetings. ABS will be
responsible for whatever operational expenses it incurs in connection with the
sale and distribution of the Product.
4.3 Xxxxxx shall have the right to use all promotional material for
which it has partially reimbursed ABS, provided ABS approves such use in
writing. Such approval will not be unreasonably withheld.
4.4 ABS's marketing plans for Product shall be provided to Xxxxxx
[*] and shall be reviewed [*] with regard to events requiring Alcide's financial
participation. A list of meetings, seminars and training programs at which
Alcide's participation is desired will be submitted ninety (90) days in advance
by ABS.
4.5 A tabulation of ABS's sales by Product shall be provided by ABS
to Xxxxxx at the end of each calendar quarter.
4.6 Thirty days after each ABS fiscal quarter ABS will meet Xxxxxx
to discuss (i) sales performance by business unit, which is summarized by
strategic business unit and market/Territory; (ii) promotional and marketing
activity and the results of the activity; and (iii) appraisal of competitive
activity, new products, etc.
5. TERM AND TERMINATION
5.1 This Agreement may be extended upon the mutual agreement of both
parties.
5.2 Either party may terminate this Agreement at any time in the
case of a material breach of this Agreement by the other party; provided that
written notice, specifying the alleged breach in reasonable detail, shall have
been given to the party breaching this Agreement not less than ninety (90) days
prior to the effective date of such termination and provided further that the
party to which such notice is sent shall have failed to cure such breach within
thirty (30) days following such
30
notice. Upon termination of this Agreement, ABS shall sell its inventory of
Alcide's Product on the open market or otherwise dispose of the Product.
5.3 This Agreement may also be terminated by either party, effective
immediately upon notice to the other, if the party to which such notice is sent
becomes the subject of any bankruptcy, insolvency or similar proceeding.
5.4 Individual Territories (as defined in Section 1.3) may be
removed from this contract by mutual agreement.
6. CONFIDENTIALITY
6.1 Confidential Information
Xxxxxx and ABS agree, with respect to any confidential
information received from the other and identified as confidential information
that:
A. This Section 6.1, Confidential Information, including all
subsections, supersedes all previous agreements between ABS and Xxxxxx, in
writing or otherwise, with regard to confidential information, except that
confidential information disclosed and properly identified as such pursuant to
the previous agreements between the parties shall remain subject to the
confidentiality obligation provided for therein.
B. With respect to the disclosure of information by either
party to the other pursuant to this Agreement, the disclosure of any portion of
such information which the disclosing party regards as confidential information
will be made subject to the following conditions:
(a) The information must be in writing or in drawing or on
some other permanent record and must be clearly marked or identified as being
confidential information and must identify such confidential information as
being:
(i) marketing;
(ii) technological;
(iii) chemical.
(b) If confidential information is verbally disclosed, as
may happen during meetings of representatives of the parties, then, within ten
(10) working days after such disclosure, the disclosing party will deliver to
the other party a letter specifically identifying the confidential information
so disclosed and indicating that the information is to be treated as
confidential information.
Neither party shall have any obligation to the other with
respect to information disclosed but not identified as confidential information
pursuant to this Section 6.1.B.
31
C. With respect to any confidential information received from the
other and identified as confidential information pursuant to Section 6.1.B:
(a) the receiving party shall use reasonable care to prevent
disclosure of the confidential information to any third party without the prior
written consent of the disclosing party, and the degree of care taken by the
receiving party shall be at least as great as the degree of care which the
receiving party takes in protecting its own confidential information; and
(b) the receiving party will not use confidential information
disclosed by the other party for any commercial purpose other than pursuant to
this Agreement, or publish or disclose it to third persons without the prior
written consent of the disclosing party.
D. Neither party shall have any obligation with respect to any
information disclosed by the other party:
(a) which is already in the possession of the receiving party
at the time of its receipt from the disclosing party;
(b) which the receiving party lawfully receives from another
person whose disclosure thereof to the receiving party does not violate any
rights of the disclosing party; or
(c) which is or becomes published or otherwise publicly
available through no act or omission of the receiving party.
E. ABS's obligation to consider as confidential information
disclosed by Xxxxxx for which ABS has been granted rights under this Agreement
shall not prevent ABS from using such information to carry out the purposes and
intent of this Agreement.
F. Upon termination of this Agreement, ABS and Xxxxxx shall each,
upon the written request of the other, return or destroy all material, copies
thereof and extracts therefrom which include any information designated as
confidential by the other pursuant to Section 6.1.B. Each may, however, retain,
for legal archival purposes only, one copy of all such material.
G. The provisions of this Section 6.1 shall survive termination of
this Agreement and remain in full force and effect as to any item of
confidential information for:
(a) three (3) years if such item of confidential information is
marketing information;
(b) five (5) years if such item of confidential information is
technological information; or
(c) ten (10) years if such item of confidential information is
chemical information.
32
7. MISCELLANEOUS
7.1 This Agreement constitutes the entire agreement between ABS and
Xxxxxx relating to the Territories, superseding all previous agreements and may
be amended only by a written document signed by both parties hereto.
7.2 All notices, elections, demands or other communications required
or permitted to be made or given pursuant to this Agreement shall be in writing
and shall be considered as properly given or made if sent by pre-paid first-
class mail, overnight courier or delivery service, or if transmitted by any
telecommunication device (e.g. telex or telecopier) and addressed or sent to the
respective parties' addresses specified below. Either party may change its
address by giving prior written notice to the other party of its new address.
If to Xxxxxx: Xxxxxx Corporation
0000 000xx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxxx
with a copy to: Xxxxx X. Xxxxxxxxx
Xxxxxxx Coie
0000 Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
If to ABS: ABS Global, Inc.
0000 Xxxxx Xx., X.X. Xxx 000
XxXxxxxx, Xxxxxxxxx 00000
Attn: President
with a copy to: Xxxxx X. Xxxxxxxx
General Counsel
Schnader, Harrison, Xxxxx & Xxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
7.3 Applicable Law. This Agreement shall be construed in accordance
with the laws of the State of Delaware except that, as to those matters, if any,
as to which law would be superseded by the federal law of the United States of
America, that law shall control.
33
IN WITNESS HEREOF, the parties have executed this Agreement on the
date first above written.
Xxxxxx Corporation
By:s/
--------------------------------------
Xxxx X. Xxxxxxxx
Executive Vice President
Hereunto Duly Authorized
ABS Global, Inc.
By:s/
--------------------------------------
Xxxxxx XxXxxxxxx
President, CEO
Hereunto Duly Authorized
34
SCHEDULE A
Contract term shall mean the two-year period commencing November 1, 1996
and running through and including October 31, 1998.
Goal amounts of product are as determined by and fixed in U.S.
Territory Agreement.
35
CONFIDENTIAL TREATMENT REQUESTED.
THE REDACTED MATERIAL HAS BEEN SEPARATELY
FILED WITH THE COMMISSION.
SCHEDULE B
[*]
Other territories may be added by agreement between Xxxxxx and ABS and
said agreement shall be in writing and appended to this contract.
-------------------------------------
[*]
36
SCHEDULE C
LIMITED WARRANTY
Xxxxxx Corporation warrants to all purchasers of this Product that it has
been manufactured in accordance with U.S. regulatory requirements, is free of
defects, and is as described in all labeling affixed hereto. Alcide's sole
obligation under this warranty shall be limited to replacement without cost
(except all costs for shipping and handling) of any quantity of the Product
sold.
THE WARRANTY PROVIDED HEREIN AND THE OBLIGATIONS AND LIABILITIES OF XXXXXX
CORPORATION THEREUNDER ARE EXCLUSIVE AND IN LIEU OF, AND BUYER HEREBY WAIVES ALL
OTHER REMEDIES, WARRANTIES, GUARANTEES OR LIABILITIES, EXPRESS OR IMPLIED,
ARISING BY LAW OR OTHERWISE (INCLUDING WITHOUT LIMITATION ANY OBLIGATIONS OF
XXXXXX CORPORATION WITH RESPECT TO FITNESS, MERCHANTABILITY AND CONSEQUENTIAL
DAMAGES). THE BUYER ACKNOWLEDGES THAT HE IS NOT RELYING ON THE JUDGMENT OF
XXXXXX CORPORATION TO SELECT OR FURNISH COMPONENTS OR MATERIALS SUITABLE FOR ANY
PARTICULAR PURPOSE AND THAT THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE
DESCRIPTION ON THE FACE HEREOF.
37
CONFIDENTIAL TREATMENT REQUESTED.
THE REDACTED MATERIAL HAS BEEN SEPARATELY
FILED WITH THE COMMISSION.
SCHEDULE D
[*] Product will be discounted as follows depending on the quarterly
amount of Product that ABS purchases whether for sale within or outside the
United States and whether pursuant to this Agreement or any other agreement
relating to Product:
[*]
[*]
38
