Exhibit 10.21
A G R E E M E N T
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entered into between
XXXXXX PRODUCTS COMPANY
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(formerly AMINCO INC)
(a company incorporated in the United States of America
having its registered address at Corporation Trust Centre,
0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000)
and
XXXXXX PRODUCTS COMPANY S.A. (PROPRIETARY) LIMITED
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the name of which is in the process of being converted to
XXXXXX PRODUCTS (PROPRIETARY) LIMITED
(Registration No. 93/02698/07)
WHEREBY IT IS AGREED AS FOLLOWS:
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1. INTERPRETATION AND PRELIMINARY
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Unless a contrary intention clearly appears -
1.1. words importing -
1.1.1. any one gender include the other two genders;
1.1.2. the singular include the plural and vice versa; and
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1.1.3. natural persons include created entities (corporate or
unincorporate) and the state and vice versa;
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1.2. the following terms shall have the meanings assigned to them
hereunder and cognate expressions shall have corresponding
meanings, namely -
1.2.1. "commencement date" means 1 April 1996;
1.2.2. "the distributor" means XXXXXX PRODUCTS COMPANY S.A.
(PROPRIETARY) LIMITED;
1.2.3. "the products" means the range of products listed in
Annexure A hereto together with such
other products as may be added to that
annexure by written agreement between
the parties;
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1.2.4. "XXXXXX" means XXXXXX
PRODUCTS COMPANY
1.2.5. "the territory" means the continent of Africa including
Camores, Seychelles, Reunion,
Madagascar and Mauritius.
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2. APPOINTMENT OF THE DISTRIBUTOR
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2.1. XXXXXX appoints the distributor with effect from the commencement
date as its sole and exclusive distributor to sell and distribute
the products in the territory. The distributor accepts the
appointment.
2.2. For so long as this agreement shall endure, XXXXXX shall not:-
2.2.1. otherwise than as contemplated in this clause 2, itself
sell and/or distribute the products in the territory;
2.2.2. grant any person the right to sell or otherwise deal in the
products in the territory.
2.3. The distributor may, in those instances in which it does not itself
wish to directly sell or distribute the products in any part of the
territory or is not in a position (by reason of insufficient
manufacturing capacity, distribution channels or otherwise) to sell
or distribute the products in the territory, request XXXXXX, on
receipt of confirmation from the distributor that the full invoiced
value for the products to be supplied by XXXXXX as herein
contemplated has been received by the distributor, on a "best
efforts basis" to supply the relevant customer with the products.
On delivery of the products by XXXXXX to the customer as herein
contemplated, the distributor shall pay to XXXXXX an amount equal
to 75% (seventy five per cent) of the invoiced value of the
products (excluding any taxes and delivery costs) supplied by
XXXXXX to a customer. The balance of the invoiced amount
(excluding any taxes and delivery costs) received by the
distributor from the relevant customer shall be retained by the
distributor as a "merchanting fee".
2.4. It is recorded that a significant, yet indeterminable, amount of
XXXXXX'x sales to the European market are re-directed and re-
exported into the territory.
2.5. XXXXXX is entitled to sell the products to customers outside the
territory, even if such customers intend to export the products
into the territory, but may
Page - 4 -
not actively solicit or otherwise provide such sales to third
parties with the purpose of circumventing the exclusivity in clause
2.1.
2.6. Notwithstanding anything to the contrary contained in this agreement,
XXXXXX authorises the distributor to supply the European market on
a "best endeavours" basis up to 20% (twenty per cent) of XXXXXX'X
budgeted sales into Europe so as to compensate the distributor for
the loss of market share within the territory occasioned by the re-
direction of European sales into the territory.
2.7. XXXXXX undertakes to take all steps reasonably and legally possible,
including the institution of legal proceeds in any appeal, to
protect the sole and exclusive rights granted hereunder to the
distributor.
3. DURATION
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This agreement shall commence on the commencement date and shall, unless
terminated by the furnishing of not less than 12 (twelve) months prior
written notice, endure indefinitely, provided that no such notice of
termination may be furnished so as to terminate this agreement prior to the
5th (fifth) anniversary of the commencement date.
4. EXPLOITATION OF THE PRODUCTS
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The distributor undertakes to use all reasonable endeavours to ensure that
the products are properly promoted and exploited by it in the territory.
5. RIGHT TO APPOINT SUB-DISTRIBUTORS
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The distributor shall be entitled to appoint sub-distributors to sell or
distribute the products in the territory.
6. THE DISTRIBUTOR NOT AGENT OR PARTNER OF XXXXXX
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Nothing in this agreement shall be construed as -
6.1. constituting the distributor as agent of XXXXXX or granting any
authority to the distributor to represent XXXXXX or to give any
warranties or representations of whatsoever nature on behalf of
XXXXXX;
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6.2. constituting a partnership between the distributor and XXXXXX.
7. CANCELLATION
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The agreement may be cancelled -
7.1. by either party in the event of the other party committing a breach
of any of the terms of this agreement and failing to remedy such
breach within a period of 21 (twenty one) days after receipt of
written notice drawing attention to the breach;
7.2. by XXXXXX if the distributor is at any time wound up or liquidated or
placed in judicial management, whether final or provisional.
8. MUTUAL CO-OPERATION
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The distributor and XXXXXX shall consult from time to time with regard to
any assistance or advice which the distributor may require in connection
with -
8.1. the use, sale and commercial exploitation of the products in the
territory;
8.2. the marketing of the products in the territory.
9. GOVERNING LAW
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This agreement shall be governed and interpreted by the substantive laws of
the Republic of South Africa (and if the prescription laws of the Republic
of South Africa are not considered to be substantive laws thereof, by the
prescription laws as well), provided that if the major part of the
agreement is to be performed outside South Africa, no laws of South Africa
which promote competition in South Africa shall govern.
10. DOMICILIUM CITANDI ET EXECUTANDI
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The parties choose as their domicilia citandi et executandi for all
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purposes under this agreement, whether in respect of court process, notices
or other documents or communications of whatsoever nature, the following
addresses:-
10.1. The distributor:
Physical: 000 - 00xx Xxxx
XXXXXXXXXXX
Xxxxxxx
Postal: Xxxxxxx Xxx X000
XXXXXXX XXXXX
0000
Telefax: (011) 314-4777
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10.2. XXXXXX:
Physical: Corporation Trust Centre
0000 Xxxxxx Xxxxxx
XXXXXXXXXX, XX 00000
Postal: 00 Xxxx Xxxx
Xxxxxxxx, 00000
Telefax: (091) 651-3424
10.3. Any notice or communication required or permitted to be given in
terms of this agreement shall be valid and effective only if in
writing but it shall be competent to give notice by telefax.
11. WHOLE AGREEMENT, NO AMENDMENT
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11.1. This agreement constitutes the whole agreement between the parties
relating to the subject matter hereof.
11.2. No amendment or consensual cancellation of this agreement or any
provision or term thereof and no settlement of any disputes arising
under this agreement and no extension of time, waiver or relaxation
or suspension of or agreement not to enforce or to suspend or
postpone the enforcement of any of the provisions or terms of this
agreement shall be binding unless recorded in a written document
signed by the parties.
11.3. No party shall be bound by any express or implied term,
representation, warranty, promise or the like not recorded herein,
whether it induced the contract and/or whether it was negligent or
not.
SIGNED by the parties and witnessed on the following dates and at the following
places respectively:
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DATE PLACE WITNESS SIGNATURE
---- ----- ------- ---------
For: XXXXXX PRODUCTS COMPANY
______ __________ 1._______ ___________________
who warrants that he
2.________ is duly authorised
hereto
For: XXXXXX PRODUCTS COMPANY
S.A. (PROPRIETARY) LIMITED
______ __________ 1._______ ___________________
who warrants that he
2.________ is duly authorised hereto
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ANNEXURE A - THE PRODUCTS
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MAINTENANCE PRODUCTS
401 Dark & Lovely Corrective Leave-in Therapy 250 ml 9.80
402 Dark & Lovely Pro Therapy Protein Conditioner 250 ml 9.80
403 Dark & Lovely Rich & Natural Hair Dress Cond. 125 gm 9.80
40306 Dark & Lovely Rich & Natural Hair Dress 225 gm 13.00
404 Dark & Lovely Conditioning Set and wrap Lotion 250 ml 9.60
405 Dark & Lovely Quick Freeze Super Shine Spritz 250 ml 9.80
407 Dark & Lovely Extra Light Hair Dress Cond. 125 gm 9.30
411 Dark & Lovely 3-N-1 Plus Detang/Cond. Shampoo 250 ml 9.80
413 Dark & Lovely Restore & Repair Moisturizing Hair Therapy (New) 125 gm 9.80
41308 Dark & Lovely Hair Repair Creme 225 gm 13.00
41408 Dark & Lovely Quick Styling Gel - Regular Hold 250 gm 10.00
416 Dark & Lovely Quick Styling Gel - Super Hold 125 gm 8.00
417 Dark & Lovely Cholesterol Plus Super Strengthening/Cond. 480 gm 14.00
Treatment
418 Dark & Lovely Oil Moisture & Shine Lotion 250 ml 11.25
419 Dark & Lovely Oil Moisturizer Spray 250 ml 11.25
491 Dark & Lovely Ultra Nourish Vitamin, Protein & Lanolin Therapy 200 gm 11.75
492 Dark & Lovely Ultra Strengthener 200 gm 11.75
493 Dark & Lovely Restorer Hot Oil Therapy 250 ml 11.75
498 Dark & Lovely Oil Sheen Spray 300 ml 16.00
499 Dark & Lovely Holding Spray 300 ml 16.00
RELAXER PRODUCTS
420 Dark & Lovely Creme Relaxer - Regular KIT 30.55
422 Dark & Lovely Pure Creme Relaxer - Super KIT 30.55
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CHILDREN'S PRODUCTS
424 Beautiful Beginnings Children's Relaxer KIT 29.55
451 Beautiful Beginnings Conditioning Shampoo Plus Detangler 250 ml 8.75
452 Beautiful Beginnings Leave-in Conditioner Plus Detangler 250 ml 9.00
453 Beautiful Beginnings Natural Oil Moisturizer Plus Detangler 250 ml 10.75
454 Beautiful Beginnings Scalp Conditioner and Hair Dress 200 gm 11.75
PROFESSIONAL PRODUCTS
50201 Dark & Lovely Pro Therapy Protein Conditioner 500 ml 16.00
51101 Dark & Lovely 3-N-1 Detangling Conditioning Shampoo 500 ml 16.00
524 Dark & Lovely No-Lye Relaxer Salon Pack KIT 96.00
525 Beautiful Beginnings Salon Relaxer Kit KIT 110.00
624 Dark & Lovely Economy Salon Pack KIT 196.00
40314 Dark & Lovely Rich & Natural Hairdress 400 gm 19.00
41314 Dark & Lovely Hair Repair Creme 400 gm 19.00
41418 Dark & Lovely Quick Styling Gel Regular 450 gm 15.50
41616 Dark & Lovely Quick Styling Gel Super 450 gm 15.50
40416 Dark & Lovely Conditioning Set and Wrap Lotion 500 ml 15.50
41816 Dark & Lovely Oil Moisturizer Lotion 600 ml 18.50
41916 Dark & Lovely Oil Moisturizer Spray 500 ml 16.50
41734 Dark & Lovely Cholesterol Treatment 1 kg 26.00
52183 Dark & Lovely Neutralizing Shampoo 2.5 litre 44.00
39316 Dark & Lovely Reviv Colors Dazz Auburn 450 ml 36.00
39416 Dark & Lovely Reviv Colors Vibrant Plum 450 ml 36.00
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SHAVING PRODUCTS
11 Magic Shaving Powder (Depilatory) 125 gm 9.60
Gold Label - Pleasant Smelling Formula
12 Magic Shaving Power (Depilatory) 125 gm 9.80
Platinum Label - Skin Conditioning Formula
16 Magic Shaving Powder (Depilatory) 150 gm 9.60
Red Label - Extra Strength
25 Magic Pre-Shave/After Shave Lotion 100 ml 8.00
HAIR CARE PRODUCTS FOR MEN
DARK & NATURAL HAIR COLOUR
32 Dark & Natural - Natural Black 1 Appl. 17.50
33 Dark & Natural - Darkest Xxxxx 1 Appl. 17.50
DARK & NATURAL TEXTURE ENHANCER
541 Dark & Natural Texturizing Creme 450 gm 18.00
54167 Dark & Natural Texturizing Creme 2 Kg 86.00
641 Dark & Natural Texturizing Creme 4.5 Kg 135.00
DARK & NATURAL MAINTENANCE PRODUCTS
41 Dark & Natural Moisturizing Shampoo 175 gm 9.80
42 Dark & Natural Dry Hair & Scalp Conditioner 125 gm 10.75
44 Dark & Natural Wave & Style Gel 175 gm 10.75
429 Dark & Natural Texturizing Spray 250 ml 10.75
430 Dark & Natural Texturizing Gel 250 ml 10.75
431 Dark & Natural Neutralizing Shampoo 500 ml 15.00
HAIR COLOUR FOR WOMEN
DARK & NATURAL PERMANENT HAIR COLOUR
371 Dark & Lovely Jet Black 1 Appl. 17.50
372 Dark & Lovely Natural Black - formerly Black 1 Appl. 17.50
373 Dark & Lovely Xxxxx Sable - formerly Dark Xxxxx 1 Appl. 17.50
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374 Dark & Lovely Rich Auburn - formerly Auburn 1 Appl. 17.50
374 Dark & Lovely Sunset Auburn - formerly Bright Auburn 1 Appl. 17.50
376 Dark & Lovely Autumn Red - formerly Fiery Auburn 1 Appl. 17.50
377 Dark & Lovely Light Xxxxx 1 Appl. 17.50
378 Dark & Lovely Honey Blonde 1 Appl. 17.50
379 Dark & Lovely Golden Bronze 1 Appl. 17.50
380 Dark & Lovely Chestnut Blonde 1 Appl. 17.50
381 Dark & Lovely Spicy Cinnamon 1 Appl. 17.50
382 Dark & Lovely Midnight Blue 1 Appl. 17.50
383 Dark & Lovely Black Ruby 1 Appl. 17.50
384 Dark & Lovely Light Golden Blonde 1 Appl. 17.50
REVIVING COLORS SEMI-PERMANENT HAIR COLOUR
391 Radiant Black 1 Appl. 16.00
393 Spiced Auburn - formerly Dazzling Auburn 1 Appl. 16.00
394 Passion Plum - formerly Vibrant Plum 1 Appl. 16.00
