Exclusive Sales & Distribution Agreement
Between the undersigned:
MECASERTO
Which registered office is based 0, xxx Xxxxx Xxxx in St XXXXXXXX XXX VIGNES (77
400), represented by Xx. Xxxxxxx JOYEUSE, President of the Board of Directors
having power, hereinafter called "the Manufacturer".
On the one hand,
And
COM SA, Commercialization, Organization, Marketing
Which registered office is based 60, rue Londres in PARIS (75 008), Represented
by Mr. Claude DELRANC, President of the Board of Directors having power,
hereinafter called "the Distributor".
On the other hand
It was first stated the following:
The Manufacturer has developed and perfected a range of products which are
described in the enclosed Annex, over which he has rights, and that he is
selling at the moment.
The Distributor was duly informed that the results obtained by the Manufacturer,
according to the list enclosed in Annex 1, for which the latter gives full
authority, he has had sufficient reflection time, that is to say 20 days, to
take the decision to sign the present contract. He declares having the
professional experience as well as the human and financial means which are
needed to the good execution of the above obligations.
Once this has been said, it was decided and agreed the following:
Article 1: Definitions
Each time the following terms are used in the present contract or in relation
with its execution, they will have the sense defined hereafter:
o Contract will refer to the present sales grant contract and its annexes
which are a complete part of it.
o Products will refer to the products which specifications and/or references
are in Annex 3.
o Territory will refer to the aimed countries in Annex 2.
o Territory will refer to the aimed countries in Annex 2.
o Trademark will this refer to the rights on the brand name, the logos,
plans and models which are associated to it, covering the Manufacturer's
products.
o Commercial year will refer to each period of twelve months starting June
1st and finishing May 31st of the following year.
Article 2: Object of this Contract
By the present contract, according to the terms and conditions defined
hereafter, the Manufacturer concedes to the Distributor, who accepts it, the
concession of the exclusive sales of the products on the territory, the
customers and the period of the contract.
Every new product, option, accessory or service may be included in Annex 3,
according to the parties.
In consequence, the Distributor commits himself to make, and he is the only one
responsible for the integrality of promotion, advertising, sales, distribution
and invoicing of products on the territory as well as the recovery of payments
form the customers, according to the terms and conditions established in the
present contract.
The parties will act in complete independence one from each other and at any
time, the contract will not be considered to create any subsidiary or joint
venture, nor a subordination or representation link between them.
For the fulfilment of this contract, the Distributor may substitute any other
subsidiary company of his choice providing that he has first informed the
Manufacturer by mail. The Distributor is already authorized to entitle
sub-distributors or commercial agents for the sales of the production the
territory.
Article 3: Duration
The present contract will take effect from the date of signature and will be
effective for a period of two (2) commercial years, with a 12 month trial period
during which each party may put an end to the present contract with a 3 month
notice.
It will be renewed by tacit agreement every commercial year, unless a notice is
given at least 6 months before any of the contractual dates.
Article 4: Norms and Authorizations
The Distributor commits himself to ask to the territory competent authorities
and at his own expenses all ratification and price requests which may be
necessary to sell the products.
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The Manufacturer guarantees to the Distributor that the products are in
conformity with the French and International norms applicable in France,
especially in the field of medial products.
The Manufacturer commits himself to supply the Distributor with all technical
documentation he may need to obtain the ratifications.
Article 5: Trademark
5.1 Over the whole territory, the products will be commercialized under the
MECASERTO Trademark.
5.2 The Distributor commits himself not to use this trademark for other
objectives than the ones of this contract and in relation with its
products. He cannot use it on his headed or commercial note-paper, nor on
any brochure or promotional, advertising documentation he may produce
without having the Distributor's agreement.
Article 6: Commercial Policy, Annual Objective
6.1 The Distributor will be free to determine the commercial politics to
follow on the territory. He will freely determine the sales force he
intends to hire.
6.2 The objectives will be defined by the parties for one year and will be
revised every 6 months. In the case 80% of these objectives have not been
achieved, the Distributor will pay an indemnity of 5% on the unachieved
part of the objective.
Article 7: Advertising
7.1 Advertising and promotion of products on the territory will be paid by
the Distributor.
7.2 The Manufacturer will give the following promotional documentation and
material to the Distributor:
o At least a complete set of technical documents concerning the products,
plans, specifications, directions for use and in general all that is
necessary for the commercialization and which will be updated permanently.
o The Manufacturer will provide an initial quantity of brochures.
For any quantity of additional promotional documents and materials, the
Distributor will conceive and achieve them further to the technical agreement of
the Manufacturer.
Article 8: Reports, Information of the Parties
The Manufacturer will supply the Distributor with a monthly account of the
current orders. The parties will meet every three months so as to evaluate the
commercial activities and the Distributor's
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sales forecasts, think of the actions they could take and get informed about the
market's conditions and especially about the marketing orientations.
The parties undertake to inform each other about any new product which could be
of interest.
Any commercial information which would be received directly by the Manufacturer
will be sent to the Distributor.
Article 9: Supplying, Stock
9.1 Prices
o Forthe first commercial year, the transfer prices of the duty-free
products as well as the transport and delivery conditions will be enclosed
in Annex 4.
o Forthe following commercial years, from June 1st 1999 on, prices may be
revised every year according to the evolution of labor force cost,
components and raw material costs according to a formula enclosed in Annex
4.
The revised prices will be communicated to the Distributor with a 3 month notice
at the end of each commercial year, that is to say for the first time on March
1st 1999.
9.2 Each delivery will create an invoice to the Manufacturer. The invoices
drawn up in French Francs will be payable according to the following
conditions: 20% in anticipation with the order, the balance 30 days
maximum after the forwarding date which was planned and agreed by the
Manufacturer.
9.3 Three months before the beginning of each civil year, the Distributor will
communicate to the Manufacturer his products sales forecasts for the
following year.
Article 10: Non-competition
During the whole period of the contract, the Distributor commits himself not to
manufacture, distribute and/or sell, directly or indirectly, any product which
could be competitive to the products of the present contract, that is to say
which would be identical or could be used as a substitute in the consumer's
mind.
Article 11: Guarantee, Civil Liability
11.1 Within the fifteen days following the defectiveness noted in a delivery,
the Distributor undertakes to contact the Manufacturer who will commit
himself to replace the defective components, as long as the defectiveness
is not due to transport.
11.2 The Manufacturer will assume full liability of all prejudicial
consequences which may arise from the use of the products, except for
those which could be due to the Distributor's fault
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of in the non-observation by the Distributor of the Manufacturer's
instructions and of the applicable territory legislation in terms of
warehousing and product sales.
If the Distributor learns, directly or indirectly, that the use of one or the
other products sole in the territory causes corporeal or material damage, he has
to inform immediately the Manufacturer and communicate all the information he
can get about the matter.
11.3 The Manufacturer undertakes to deliver products which are in conformity
with the functional specifications and technical descriptions supplied.
11.4 The Manufacturer undertakes to maintain the products for a period of 10
years after delivery.
Article 12: Personnel
In application with Article L112-12 of the Work Code, the personnel who is
listed in Annex 6 is transferred from the Manufacturer to the Distributor.
According to the legal disposition in application, the Distributor undertakes to
hire the personnel according to the seniority gained in the Manufacturer's
company. The Manufacturer will pay a sum equivalent to the paid holidays
indemnity acquired at the date of transfer.
Article 13: Cancellation
13.1 In case of non-execution by one or the other party of any obligation
resulting of the contract, the contract may be cancelled by the other
party 60 days after the formal demand, which remained unsuccessful,
precising the non-execution as well as the intention to cancel the
contract.
13.2 In the case of non-respect of Article 11.3, the parties will have to
define indemnities to enclose to the cancellation.
13.3 The cancellations, object of the present article, are not detrimental to
the actions the contract or the law may allow to the parties in such a
case.
Article 14: Consequence of the End or of the Cancellation
14.1 Unless a disposition from the public order in force in the territory is
taken, no indemnity will be owed to the Distributor at the end of this
contract.
14.2 At the end or at the effective date of cancellation of the present
contract, the Distributor undertakes to:
o Transfer (free of charge) full authorization necessary to commercialize
the products on the territory to5 the Manufacturer or to any other person
he will entitle.
o Return all promotional and technical documents he may have as well as any
product he may
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have not paid up to this date, without retention right for them to the
Manufacturer.
o Stop immediately any use of the trademark.
14.3 The Distributor will sell the remaining stock within the 2 following
months.
14.4 The end or the cancellation of the contract do not release the parties
from the execution of the commitments they had concluded before.
14.5 Article 10 will be applicable 2 years after the end of this contract.
Article 15: Notifications
Any notifications relating to this contract, if sent, will be supposed to be
sent by recorded delivery letter with acknowledgment of receipt, addressed to
the registered office or to the last address of the destinee, and will be
supposed to have been received seven days after the date of the postmark.
Article 16: Cancellation of Previous Agreements
The present contract contains all the agreements between the two parties
concerning the object of it and cancels and replaces, in all dispositions, the
oral and written agreements which may have existed previously between the two
parties.
Article 17: Competence Attribution
This contract is ruled by the French law. Any disagreement may lead to
negotiation, execution or interpretation of the present notes and will be
submitted to the Trade Register of Paris.
Article 18: Choice of Residence
The parties chose their registered offices as their residence, as indicated in
the head of this contract.
Issued in four copies, in St Xxxxxxxx des Vignes, on May 29th 1998, for
effective date June 1st 1998.
For COM SA For MECASERTO
Mr. Claude DELRANC Xx. Xxxxxxx JOYEUSE
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AMENDMENT TO THE EXCLUSIVE SALE AND
DISTRIBUTION CONTRACT
BY AND BETWEEN THE UNDERSIGNED:
MECASERTO, a societe anonyme with capitalization in the amount of 9,300,000
Francs, headquartered in SAINT XXXXXXXX DES VIGNES (77400) Xxxx xx x'Xxxxxxxxx -
0, xxx Xxxxx Xxxx, identified under the number 572 148 922 in the Register of
Commerce and Companies of XXXXX,
Represented by Xx. Xxxxx XXXXX, the Chairman of its Board of Directors duly
authorized for this purpose by a meeting of the Board of Directors held on March
22, 1999
and
COMSA, a socit anonyme with capitalization in the amount of 500,000 Francs,
headquartered in Paris (75008) at xxx xx Xxxxxxxxxx, Xx. 00, identified under
the number 000 000 000 in the Register of Commerce and Companies of Paris,
Represented by Mr. Claude DELRANC, the Chairman of its Board of Directors, duly
authorized for this purpose by a Board of Directors meeting held on March 22,
1999
IT WAS PREVIOUSLY ESTABLISHED AS FOLLOWS:
According to a private contract dated May 29, 1998, in Saint-Xxxxxxxx des
Vignes, recorded in the Revenue Office of Paris, 8th district - Route Artois, on
June 3, 1998 Folio 35 - Bord. 260/1, the companies MECASERTO and COMSA entered
into an exclusive sale and distribution contract under which MECASERTO granted
COMSA, under various obligations and conditions, a license for the exclusive
sale of SIMSCAN 2 / SIMSCAN NT, SIMICS, THYRODIAN "(gamma)VIEW" IMAGER
simulators for the territory including the various countries of Europe, Asia,
Africa, America and Australia.
As each of the undersigned parties has a recorded copy of said contract, the
author shall hereby dispense with recalling the obligations and conditions in
this amendment.
However, it appeared while the contract was in use by MECASERTO and COMSA that
the recent registration of COMSA in the Register of Commerce and Companies has
proven to be a handicap in France when submitting bids for government contracts.
For this reason, the parties came together and agreed as follows.
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THIS HAVING BEEN ESTABLISHED IT WAS THEREFORE AGREED AND DETERMINED AS FOLLOWS
ARTICLE 1
In derogation of the provisions of articles 1 and 2 of the contract signed in
Saint-Xxxxxxxx des Vignes dated May 29, 1998, cited in the presentation above,
Metropolitan France and the overseas departments are excluded from the territory
covered by the exclusive sale license granted to COMSA by MECASERTO for a period
of EIGHTEEN (18) months from the date this amendment is signed.
When this exclusion expires, it may be extended for another maximum period of
EIGHTEEN (18) months by mutual agreement of the undersigned parties.
The remainder of the exclusive sale and distribution contract signed in
Saint-Xxxxxxxx des Vignes on May 29, 1998 remains unchanged.
ARTICLE 2
During the exclusion period cited in article 1 above, COMSA will assist and
advise MECASERTO in order to allow the organization and optimization of its
business activity in France and the overseas departments.
In this territory, COMSA's mission will primarily concern the following areas:
- assisting MECASERTO with market studies
- assisting MECASERTO in seeking out new customers and the priority sectors for
prospecting
- assisting MECASERTO in preparing estimates based on the wishes of its
customers
- assisting MECASERTO in responding to calls for bids for government contracts.
Additionally, the undersigned parties agree to meet regularly to assess the
business activity and the sales projections of MECASERTO in France and in the
overseas departments, to consider actions that MECASERTO might take and, more
particularly, its marketing focuses.
ARTICLE 3
In exchange for the derogation granted by COMSA to the exclusive sales and
distribution contract granted to it on May 29, 1998, as cited in article 1
above, and for the mission for which COMSA is responsible during this period of
exclusion as indicated in article 2 above, MECASERTO will pay COMSA, for the
entire period of validity of this amendment, a remuneration equal to 2.5%,
exclusive of tax, of the sales, exclusive of tax (excluding spare parts)
realized by MECASERTO for simulators and other equipment and related accessories
that it sells directly in France and in the overseas departments.
The remuneration to be paid by MECASERTO to COMSA for the sale of spare parts
realized by
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COMSA will be equal to FIVE PERCENT (5%), exclusive of tax, of these sales,
exclusive of tax.
These sales obviously exclude the SIEMENS contract, after sale service and spare
parts, which were excluded from the contract dated May 29, 1998.
This remuneration will be payable on a quarterly basis when due by means of
provisional installments, the account being normalized once a year no later than
three months before the closing of MECASERTO's fiscal year.
This remuneration is understood to be exclusive of the value-added tax.
Consequently, MECASERTO will pay COMSA the V.A.T. at the legal rate in force in
addition.
The specific services not included in this agreement that might be requested by
MECASERTO from COMSA, will be covered by a preliminary estimate and will be
billed in addition by COMSA.
ARTICLE 4
For the execution of this amendment, the parties elect domicile at their
respective corporate offices as indicated at the beginning of this amendment.
DONE IN PARIS, in three copies
Nineteen hundred ninety-nine
and on March 22
For MECASERTO For XXXXX
Xxxxx XXXXX Xxxxxx DELRANC
[Signed] [Signed]
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