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EXHIBIT 99.9
EXCLUSIVE DISTRIBUTION AGREEMENT
THIS EXCLUSIVE DISTRIBUTION AGREEMENT ("Agreement") dated as of October
11, 1999, by and among The UniMark Group, Inc., a Texas corporation ("UniMark")
and Les Produits Deli-Bon, Inc., a Quebec corporation (the "Deli-Bon").
WITNESSETH:
WHEREAS, UniMark is the owner of the entire rights, title and interest
in and to the name "Fruits of Four Seasons" and related trade names, marks and
symbols, and with regard to such names, marks and symbols Deli-Bon hereby
expressly recognizes and concedes that Licensor is presently the exclusive owner
of same; and
WHEREAS, Deli-Bon desires to be granted an exclusive right to
distribute and sell "Fruits of Four Seasons" products produced by UniMark's
subsidiaries (the "Products") in Canada;
WHEREAS, UniMark is willing to grant an exclusive right to Deli-Bon in
accordance with and subject to the terms and conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt of which is hereby acknowledged;
IT IS AGREED:
1. GRANT
UniMark hereby grants to Deli-Bon the exclusive right to distribute and
sell the Products in Canada.
2. TERM
The term of this Agreement shall be for a period of four (4) years
commencing on the effective date of this Agreement and ending on the anniversary
date of such commencement (the "Anniversary Date"). This Agreement shall be
renewed on the Anniversary Date of each successive year thereafter unless (i)
UniMark or Deli-Bon shall give to the other party a notice of cancellation at
least thirty (30) days prior to any Anniversary Date, to be effective on such
Anniversary Date, or (ii) it is earlier terminated as set forth in Paragraph 7
hereof.
3. PURCHASE PRICE FOR PRODUCTS
The purchase price for the Products shall be negotiated annually in
good faith between UniMark and Deli-Bon at least 30 days prior the commencement
of the next calendar year. The purchase price shall be "FOB McAllen, Texas" and
payment shall be due within net 21 days.
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4. RELATIONSHIP OF THE PARTIES
This Agreement does not create nor is it to be construed as creating a
partnership, joint venture or the relationship of principal and agent between
UniMark and Deli-Bon. Deli-Bon is and shall at all times be deemed to be a
separate entity. No representations shall be made by either party that would
create an agency, partnership or joint venture, and neither party shall have
authority to act for the other in any manner to create obligations or debts that
purport to be binding on the other, except as expressly provided in this
Agreement. There shall be no liability on the part of UniMark to any person for
any debts, liabilities or other obligations incurred on behalf of Deli-Bon and
its business unless UniMark expressly agrees in writing to pay such debts.
5. SEVERABILITY
If any part of this Agreement for any reason be declared invalid, such
declaration shall not affect the validity of the remaining portion, which
remaining portion shall remain in force and effect as if this Agreement had been
executed with the invalid portion thereof eliminated, and it is hereby declared
the intention of the parties hereto that they would exercise the remaining
portion of this Agreement without including therein any such part, parts or
portions that may, for any reason, be hereafter declared invalid.
6. GOVERNING LAW
This Agreement shall be interpreted and construed in accordance with
and shall be governed by the laws of the State of Texas.
7. TERMINATION
In the event Deli-Bon shall:
(a) breach or fail to perform any of the terms or conditions of
this Agreement, and provided that such breach or
non-performance is not cured within such thirty (30) days; or
(b) does not purchase at least $100,000 (US) of Product during any
calendar year; or
(c) engages in gross negligence or willful misconduct with respect
to the distribution and sale of the Product;
then, UniMark may terminate this Agreement thirty (30) days after written notice
of the nature of such breach or non-performance is delivered to the defaulting
party.
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8. DISPUTES BETWEEN PARTIES
All controversies that may arise between the parties hereto including,
but not limited to, those arising out of or related to this Agreement, shall be
determined by binding arbitration applying the laws of the State of Texas. Any
arbitration pursuant to this Agreement must be submitted to the British Columbia
International Commercial Arbitration Centre (the Vancouver Centre for Commercial
Disputes) in Vancouver, Canada for binding arbitration, to the exclusion of
courts of law, in accordance with its arbitration rules. The parties hereto have
required that any arbitration proceeding be conducted in the English language.
Les parties ont requis que tous l'arbitrage soient en langue anglaise. The
arbitration shall be final and binding upon all the parties (so long as the
award was not procured by corruption, fraud nor undue means), and the
arbitrators award shall not be required to include factual findings or legal
reasoning.
9. TITLES NOT LIMITING
Titles to paragraphs of this Agreement are for the purpose of
information and guidance only, are not part of this Agreement, and shall in no
way be deemed to limit the effect of any language to which they relate.
10. INTEGRATION OF AGREEMENT
This Agreement constitutes the entire agreement between the parties and
supersedes all prior negotiations, understandings and agreements, if any,
between the parties. This Agreement may not be amended or modified orally but
may be amended or modified only by written instrument signed by the parties
hereto.
11. SUCCESSION
All rights of the parties under this Agreement shall accrue to the
benefit of their successors and assigns.
12. CONSENT TO ASSIGNMENT
Deli-Bon must obtain the prior written consent of UniMark before
assigning any of its rights, title or interest under this Agreement. Any
assignment without such prior written consent shall be null and void.
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IN WITNESS WHEREOF, this Agreement has been duly executed by a duly
authorized officer of the parties hereto on the day and year first above
written..
THE UNIMARK GROUP, INC.,
A Texas corporation
By: /s/ Soren Bjorn
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Soren Bjorn
Chief Executive Officer,
President and Secretary
Address: X.X. Xxx 000
Xxxxxxxxxxx, Xxxxx 00000
Telecopy No.: (000) 000-0000
Attention: Soren Bjorn
DELI-BON:
/s/ Xxxxxxxx Xxxxxx
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By: Xxxxxxxx Xxxxxx
Title: President
Telecopy No.: (000) 000-0000
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