Exhibit 10.25
LISTING AND STRATEGIC ALLIANCE AGREEMENT
THIS LISTING AND STRATEGIC ALLIANCE AGREEMENT is dated as of the 5th day
of April, 2000 (this "Agreement"), by and between (a) Bowater Incorporated, a
Delaware corporation ("Bowater"), and (b) XxxxxXxxxxxxx.xxx, Inc., a Delaware
corporation ("XxxxxXxxxxxxx.xxx").
WHEREAS, Bowater is engaged in the manufacture, sale and distribution of
certain paper-related products including newsprint;
WHEREAS, XxxxxXxxxxxxx.xxx provides a real-time on-line trading exchange
(the "Exchange") for paper and other products to registered users of
XxxxxXxxxxxxx.xxx services (the "Members");
WHEREAS, Bowater is a Member of XxxxxXxxxxxxx.xxx pursuant to the terms of
the Membership Agreement between the parties except as otherwise provided herein
(the "Membership Agreement"); and
WHEREAS, Bowater and XxxxxXxxxxxxx.xxx desire to enter into an agreement
with respect to the purchase and sale of certain products by Bowater and a
strategic alliance to facilitate the adoption of electronic commerce in the
pulp, paper and packaging industry.
NOW THEREFORE, the parties, in consideration of the undertakings and
commitments set forth herein, agree as follows:
1. Listings; Exclusivity. Bowater agrees to use its commercially
reasonable efforts to list for sale on the Exchange (either open market or
directed tons) first quality newsprint ("Newsprint") in the minimum amount
during each quarter as set forth on Schedule 1 attached hereto or as mutually
agreed to by Bowater and XxxxxXxxxxxxx.xxx in writing; provided that, for a
period of seven (7) consecutive calendar days during each calendar month during
the Term (as hereinafter defined), Bowater may, in its sole discretion, withdraw
from its listing all or any portion of the listed Newsprint. The listing shall
be made at prices in Bowater's sole discretion (provided that the listed prices
shall not be greater than reasonable regional market prices) and the other terms
and conditions of such listing shall be commercially reasonable. Provided that
Bowater complies with the immediately preceding two sentences, it shall not be a
default by Bowater under this Agreement if Bowater does not sell in any period
the minimum amount set forth in Schedule 1 or any other amount. Bowater further
agrees to list on the Exchange requests for purchase for a portion of its
requirements for wastepaper and to use its reasonable commercial efforts to
purchase a portion of its wastepaper requirements on a non-exclusive basis
through the Exchange. Bowater further agrees that through June 30, 2002, the
Exchange will be Bowater's exclusive third-party provider of e-commerce services
for the sale of Newsprint. For the avoidance of doubt, Bowater and
XxxxxXxxxxxxx.xxx agree that neither (a) Bowater's use of its electronic order
fulfillment system and related communications with customers through Bowater's
own electronic media (including, without limitation, Bowater's web site and
email), nor (b) Bowater's use of the Internet or other e-commerce services for
the sale of products other than Newsprint shall, in either case, be prohibited
by the terms of this Agreement. Additionally,
* Confidential Treatment Requested: material has been omitted and filed
separately with the Commission.
it is contemplated that Bowater may from time to time list and sell pulp and
other paper-related products through XxxxxXxxxxxxx.xxx's web site exchange.
2. Further Use of the Exchange. Bowater agrees to work with
XxxxxXxxxxxxx.xxx, using commercially reasonable efforts, to explore its
expanded use of the Exchange, including without limitation, expanding its
purchase and sale of paper-related products on the Exchange. Nothing in this
Agreement, however, shall require Bowater to list, sell or purchase on the
Exchange or require the Exchange to accept for listing additional products
unless the parties agree to do so.
3. Integration Project. On a mutually agreeable timetable,
XxxxxXxxxxxxx.xxx and Bowater will engage in the development of a plan to
implement an integration project. As part of such project, XxxxxXxxxxxxx.xxx and
Bowater shall endeavor to link Bowater's internal information technology system
for a specific facility or production unit to XxxxxXxxxxxxx.xxx's web site in
order to facilitate internet-based transactions through XxxxxXxxxxxxx.xxx's web
site. Such project may include inventory, production scheduling, billing, and
receivable system integration. The implementation of this integration project
will be subject to Bowater and XxxxxXxxxxxxx.xxx supplementing the terms of this
Section 3 with additional documentation to the extent reasonably required to
further define the scope and substance of such integration project and to
provide each party with reasonable protections as to confidentiality of
information, security and similar matters.
4. Term and Termination.
4.1 Term. The term of this Agreement shall be for a period
commencing on the date of this Agreement through (and including) June 30, 2002
(together with any successor one-year renewals, the "Term") and shall
automatically renew for one-year terms thereafter unless, at least thirty (30)
days prior to the expiration of the then current Term, either party terminates
this Agreement as of the end of that current Term upon written notice to the
other party. The parties agree to use good faith efforts to negotiate the terms
of a renewal of this Agreement if, in the good faith judgment of each party,
this Agreement is meeting their business needs.
4.2 Additional Termination Right of Bowater. Bowater shall have the
additional right to terminate this Agreement at any time during the Term upon
thirty (30) days prior written notice in the event that in its good faith
judgment the services provided by XxxxxXxxxxxxx.xxx's web site are not meeting
Bowater's business needs.
5. General Provisions.
5.1 XxxxxXxxxxxxx.xxx hereby agrees that it will use commercially
reasonable efforts to add sufficient sales force and allocate sufficient
budgetary resources based upon the parties' mutually agreed upon expectations,
prior to the commencement of the First Measuring Period, to promote the
newsprint component of its web site in a manner similar to that of the
containerboard and printing and writing components of its web site. The parties
agree to work together to form mutually agreed upon expectations of the sales
force and budgetary resources to be allocated pursuant to this Section.
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5.2 Bowater and XxxxxXxxxxxxx.xxx are independent contractors.
Nothing in this Agreement is intended to or will constitute either party as an
agent, legal representative, joint venturer or partner of the other for any
purpose.
5.3 A waiver of a breach of any term of this Agreement will not be
construed as a waiver of any succeeding breach of that term or as a waiver of
the term itself. A party's performance after the other's breach will not be
construed as a waiver of that breach.
5.4 All notices required or permitted under this Agreement and all
requests for approvals, consents, and waivers must be in writing and must be
delivered to the parties at their respective addresses by a method providing for
proof of delivery. Any notice or request will be deemed to have been given on
the date of receipt.
If to XxxxxXxxxxxxx.xxx: If to Bowater:
XxxxxXxxxxxxx.xxx, Inc. Bowater Incorporated
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx 00 Xxxx Xxxxxxxxxx Xxx
Xxxxxx, XX 00000 X.X. Xxx 0000
Attention: President and CEO Xxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000 Attention: Xxxxx X. Xxxxxx
Vice President, Corporate
Development and Strategy
Telecopier No.: (000) 000-0000
with copies to: with copies to:
Xxxxxxx Xxxx LLP Bowater Incorporated
000 Xxxxxxx Xxxxxx 00 Xxxx Xxxxxxxxxx Xxx
Xxxxxx, XX 00000 X.X. Xxx 0000
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq. Xxxxxxxxxx, XX 00000
Telecopier No.: (000) 000-0000 Attention: Xxxxxxx X. Xxxxxx
Senior Vice President, Corporate
Affairs and General Counsel
Telecopier No.: (000) 000-0000
5.5 Neither party may assign its rights or obligations under this
Agreement without the prior written consent of the other. The Agreement shall be
binding upon and inure to the benefit of the parties and their successors and
permitted assigns.
5.6 Except as this Agreement otherwise provides, no amendment to
this Agreement will be binding unless agreed to in writing and executed by the
parties, and no approval, consent, or waiver will be enforceable unless the
granting party signs it.
5.7 Each term of this Agreement is severable. If a court, agency, or
arbitrator having jurisdiction determines that any term is invalid or
unenforceable under applicable law, that determination will not affect the other
terms of this Agreement, as the case may be, which other terms will continue to
be enforced as if the invalid or unenforceable terms were omitted.
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5.8 Any advertising, publicity, release, or other disclosure of
information concerning this Agreement or the relationship between the parties
must be approved in writing by both parties, except to the extent disclosure is
legally required, including, without limitation, in connection with securities
laws. In addition, each of XxxxxXxxxxxxx.xxx and Bowater agrees not to disclose
to any person or entity any Confidential Information (as defined below) of the
other party except as required by law. Where disclosure is required by law
(except in connection with securities laws), each party hereby agrees to (a)
give the other notice of the legal requirement promptly following that party
becoming aware of the requirement and in any event prior to disclosure, (b)
provide all reasonable assistance in restricting the disclosure to the maximum
extent lawfully possible, whether by protective order or otherwise, and (c)
disclose only the Confidential Information that is required to be disclosed, and
solely to those persons or entities to whom the party is required to disclose
the Confidential Information. Each party agrees to notify the other in writing
of any disclosure, misuse or appropriation of Confidential Information of the
other that may come to its attention. For purposes of this Agreement,
"Confidential Information" means, without limitation, electronic data
processing, information, hardware, software and systems technology,
manufacturing and research concepts, techniques, processes, designs, cost data,
customer information, sales and marketing information and other technical,
sales, customer and proprietary information of either party except to the extent
that it is or becomes known publicly through no fault of the other party, is
learned by the other party on a non-confidential basis from a third party
entitled to disclose it, or was already known by the other party before receipt
of the information from the disclosing party. In order to maintain information
of the other party as confidential, each party agrees to take all security
precautions reasonably necessary to protect the information from disclosure and
to keep it confidential, including without limitation, providing protection from
theft, preventing unauthorized duplication or discovery, and restricting access
to the information.
5.9 This Agreement, in conjunction with the Membership Agreement as
modified hereby, states the complete agreement between the parties concerning
the subject matter hereof, and supersedes earlier oral and written
communications between the parties concerning the subject matter hereof. In the
event of any inconsistency between the Membership Agreement and this Agreement,
the terms of this Agreement shall govern. The parties also agree that section 23
of the Membership Agreement shall not apply to any dispute between the parties
arising out of this Agreement or the Membership Agreement. In addition,
notwithstanding section 9 or 10 of the Membership Agreement, no fee will be due
from Bowater as a result of any sale by it on the Exchange until thirty (30)
days after the date on which the sales transaction has been completed and
Bowater has received payment.
5.10 This Agreement shall constitute a contract under seal. The
validity and construction of this Agreement shall be governed by and construed
in accordance with the internal laws (and not the choice-of-law rules) of The
Commonwealth of Massachusetts.
5.11 This Agreement may be executed in multiple counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
[signature page to follow]
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the day and year first above written.
XxxxxXxxxxxxx.xxx, Inc.
By: /s/ Xxxxx XxXxxxx
-----------------------------------
Name: Xxxxx XxXxxxx
---------------------------------
Title: CFO
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Bowater Incorporated
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxx
---------------------------------
Title: Chairman and CEO
--------------------------------
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Schedule 1
MEASURING PERIODS AND TONNAGE
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Measuring Period Minimum Metric
Tons of
Newsprint
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July 1, 2000 through September 30, 2000 *****
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October 1, 2000 through December 31, 2000 *****
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January 1, 2001 through March 31, 2001 *****
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April 1, 2001 through June 30, 2001 *****
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July 1, 2001 through September 30, 2001 *****
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October 1, 2001 through December 31, 2001 *****
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January 1, 2002 through March 31, 2002 *****
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April 1, 2002 through June 30, 2002 *****
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TOTAL: *****
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* Confidential Treatment Requested: material has been omitted and filed
separately with the Commission.
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