DISTRIBUTION/REPACKAGING AGREEMENT
This Agreement is entered into between NORTECH Forest Technologies,
Inc.("NORTECH") and LESCO, inc. ("LESCO") and is effective as of August 1 , 1996
NORTECH will sell to LESCO, and LESCO will purchase, the Products specified on
the attached Exhibit A (the "Products") in bulk form for repackaging or in
prepackaged, finished form, as mutually agreed to by the parties, in such
quantities as may be agreed upon by the parties from time to time.
NORTECH grants to LESCO certain exclusive rights to distribute and sell the
Products as defined in Exhibit B ("Marketing Rights"), and to use the registered
trademark Tree Guard, under NORTECH's United States Environmental Protection
Agency (EPA) registered label(s) for the term of this Agreement.
NORTECH grants to LESCO only that authority necessary to allow LESCO to perform
its responsibilities under this Agreement. NORTECH specifically does not grant
to LESCO the authority to endorse NORTECH's name on any commercial paper,
contracts, advertisements, or instruments of any nature; to collect any debt; or
to enter into any obligation or warranty, express or implied, written or oral,
binding NORTECH to pay any money or otherwise obligating NORTECH in any way.
This is not, nor is it to be construed as, a franchise agreement.
I. TERMS OF SALE/PURCHASE. Price, freight, minimum purchase quantities,
terms of payment, advertising allowance, and rebates for the period from
the effective date of this Agreement through December 31, 1997 ("Period"),
shall be as specified in the attached Exhibit C, and for future calendar
years will be as mutually agreed to by NORTECH and LESCO no later than
sixty (60) days prior to such future calendar years. Price will always be
linked to a negotiated discount from NORTECH's distributor price list for
the Products. ln negotiating the price for Products after the Period,
parties will rely on i) price developments in the market for the Products,
and ii) cost developments in the manufacturing of Products, including raw
materials.
TAXES. If NORTECH is required to pay any sales, use, value-added or other
taxes based on transactions subject to this Agreement (other than taxes
based on NORTECH's income), such taxes shall be billed to and paid by
LESCO.
FINANCIAL CONDITION. NORTECH may defer shipments, alter payment terms, or
terminate this Agreement if LESCO fails to pay any invoice in accordance
with the terms of this Agreement. If LESCO's financial condition becomes
reasonably unsatisfactory to NORTECH, in addition to remedies provided
elsewhere herein, NORTECH may require cash payments or satisfactory
security for future deliveries. LESCO shall supply to NORTECH such
financial statements as NORTECH may reasonably request from time to time.
WARRANTY. NORTECH warrants that in the performance of this Agreement, it
will comply with all applicable federal, state, and local laws and
regulations; NORTECH warrants that the Products shipped hereunder shall
conform to the specifications therefore and to the chemical description on
the label and such label conforms to the EPA registered label therefor;
that good title, free from any lawful encumbrance shall be transferred by
NORTECH hereunder; that the Products sold by NORTECH to LESCO will not
infringe any United States patent; and that the Products sold to LESCO
hereunder comply with all governmental regulations. This is a guaranty
under ss. 12(b)(1) of Federal insecticide, Fungicide and Rodenticide Act
("FIFRA"), 7 U.S.C. ss. 136(l.)(b)(1). LESCO warrants that in the
performance of this Agreement, it will comply with all applicable federal,
state and local laws and regulations. NORTECH MAKES NO OTHER WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, NOR IS THERE ANY OTHER
EXPRESS OR IMPLIED WARRANTY ON PRODUCTS SUBJECT HERETO. NORTECH SHALL NOT
BE LIABLE FOR CONSEQUENTIAL DAMAGES EXCEPT FOR ACTS OF GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
INDEMNIFICATION. NORTECH shall indemnify LESCO against all claims for
property damage, personal injury, costs and expenses (including reasonable
attorneys, fees) suffered by third persons caused by, or any action taken
or brought by the U.S. EPA or other governmental authority/agency against
LESCO arising out of, Products supplied to LESCO hereunder whether arising
in warranty, negligence or otherwise, except to the extent such claims
arise out of LESCO's negligence.
LESCO shall indemnify NORTECH against all claims for property damage,
personal injury, costs and expenses (including reasonable attorneys, fees)
arising out of LESCO's negligence in its storage, transportation and
distribution of the Products it purchases including sales practices not in
compliance with NORTECH's label specifications, except to the extent such
claims arise out of NORTECH's negligence.
TITLE AND RISK OF LOSS. Title and risk of loss of the Products shall pass
to LESCO upon NORTECH's delivery to carrier.
PRODUCT DISCONTINUANCE. Upon sixty (60) days prior written notice to LESCO,
NORTECH shall have the right to terminate its obligation to provide
Products in the event that NORTECH decides to discontinue selling such
Products. In the event of such termination, NORTECH will have the right to
allocate any remaining inventory of Products in a fair and reasonable
manner.
FORCE MAJEURE. Deliveries may be suspended by either party in the event of
war, fire, flood, labor trouble, breakage of equipment, accident, riot, act
of governmental authority (including but not limited to the U.S.
Environmental Protection Agency ["EPA"] or similar state agencies), acts of
God, or contingencies beyond the reasonable control of such party,
interfering with the production, supply, transportation, or sale of any of
the Products covered by this Agreement, or in the event of inability to
obtain on terms deemed by NORTECH to be practicable any raw material
(including energy). Quantities so affected shall be eliminated from this
Agreement without liability, or if by the mutual written agreement of both
parties, may be deferred, but this Agreement shall otherwise remain
unaffected.
SHORTAGE. In the event of inability for any reason to supply the total
demand for Products, NORTECH may allocate its supply of such Products in a
fair and reasonable manner, without liability for failure of performance.
II. LESCO EFFORTS
PRODUCT STEWARDSHIP. LESCO will ensure that each facility that stocks,
handles and ships Products shall be properly equipped to do so safely, in
compliance with federal, state, and local regulations.
CONTAINER APPROVAL. Containers used by LESCO for repackaged Products shall
be approved by NORTECH.
FORMULATION: NORTECH will formulate the Products.
SAMPLE RETENTION. When LESCO shall act as repackager of the Products, it
shall keep samples of each production run, including lot numbers, for a
minimum of two years. Samples shall be a minimum of four fluid ounces or
one half pound for dry formulations and shall be kept in stoppered
containers labeled with the appropriate lot number. LESCO shall make these
retainer samples available to NORTECH upon reasonable request.
III. NORTECH EFFORTS
REGISTRATION. NORTECH shall exercise its best efforts to maintain EPA
registration number 66676-1 for the Products under FIFRA.
IV. OTHER PROVISIONS
TERM. This Agreement is effective as of the date specified above and shall
continue in effect through December 31, 1999 ("Initial Term") and renew
thereafter for successive one year periods ("Renewal Periods"), until
terminated as provided below or until superseded.
TERMINATION. Either party may terminate this Agreement upon the other
party's continuing breach of this Agreement after written notice by the non
breaching party to the breaching party and a thirty (30) day opportunity to
cure. Either party may terminate this Agreement, without cause, by giving
written notice to the other party no later than 180 days prior to the end
of the Initial Term or any of the Renewal Periods, of its intent to
terminate at the end of the initial Term or a Renewal Period, as the case
may be.
Paragraphs of this Agreement regarding warranties and indemnification will
survive the termination under all circumstances.
EPA CANCELLATION. ln the event that any Product is suspended and later
canceled by EPA under Section 6 (7 U.S.C. ss. 136d) of the FIFRA, NORTECH
hereby agrees to accept return of LESCO's inventory of the canceled Product
and to credit LESCO with the net invoice price of such inventory.
REJECTED PRODUCTS. Any rejection of shipments and all claims for
nonconforming Products, damaged Products or shortages must be made by LESCO
not later than thirty (30) days of LESCO's earliest discovery of
information giving rise to the rejection or claim. NORTECH shall be
responsible for and bear the cost of disposition of the nonconforming or
damaged Products.
NON-ASSIGNABILITY. The rights and duties of either party under this
Agreement are not assignable or transferable to any other party, other than
to a party controlling, controlled by, or under common control with such
party, without the prior written consent of the other party hereto, which
consent shall not be unreasonably withheld.
NON-WAIVER. Failure of either party to exercise any right under this
Agreement on any occasion shall not in any way waive or reduce its right to
exercise any right on any other occasion.
AMENDMENTS. The terms and conditions herein may only be modified or added
to by an amendment, expressly identified as such, signed by authorized
representatives of both parties.
GOVERNING LAW. The parties agree that this Agreement shall be deemed to
have been made and executed in the State of Ohio. However, both parties
agree that any disputes arising out of the performance of this Agreement
will be resolved under the Uniform Arbitration Act.
MISCELLANEOUS. NORTECH agrees to comply with LESCO's Supplier Service
Standards as currently defined in Exhibit D attached hereto, and as
reasonably modified from time to time by LESCO and presented to NORTECH.
NORTECH agrees to participate in LESCO's annual Vendor Trade Show at
NORTECH's expense. ln connection with such, LESCO shall provide NORTECH all
reasonable details, schedules and expense estimates with no less than 90
days notice.
NORTECH will give LESCO first refusal for distribution of new products or
improved formulations for existing products.
ENTIRETY. This Agreement, with the attached Exhibits A, B, C and D
constitutes the entire understanding between NORTECH and LESCO regarding
the Products. It supersedes all previous agreements and understanding and
therefore represents the total current relationship.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly authorized representatives as of the day and year first
above written.
NORTECH Forest Technologies, Inc. LESCO, Inc.
By: /s/ Xxx xxXxxxx By: /s/ Xxxxxxxx X. Xxxxxxxx
Name: Xxx xxXxxxx Name: Xxxxxxxx X. Xxxxxxxx
Title: CEO Title: Vice President, General Counsel/
Corporate Secretary
Date: 8-21-96
Date: September 3, 1996
EXHIBIT A
THE PRODUCTS
TREE GUARD(R) TECHNICAL INFORMATION*
The purpose of this bulletin is to give distributors, dealers, users and
researchers information that is unavailable on the Tree Guard label.
Tree Guard is an anti-browsing pesticide formulated to solve a need for
longlasting deterrence.
The active ingredient and all components of the formula are listed on the
comprehensive LIST OF PESTICIDE PRODUCT INERT INGREDIENTS published by the
Environmental Protection Agency.
ACTIVE INGREDIENT: Bitrex(TM)
COMMON NAME: Denatonium Benzoate
CAS REGISTRY NUMBER: 3734-33-6
CHEMICAL NAME: Benzenemethanaminium
N-[2-(2,6-dimethylphenyl)amino]
2oxoethyl] -N,N-diethyl-,benzoate
2,000 parts per million of Bitrex(TM) is in the
formulated product.
INERT INGREDIENT: The inert ingredients are a proprietary mix
of latex emulsion. See an MSDS for more
information on hazards and handling
characteristics. Handle Tree Guard as you
would a high quality paint product.
- DO NOT ALLOW PRODUCT TO FREEZE -
*This is not a Material Safety Data Sheet (MSDS).
MSDSs are available upon request.
NORTECH FOREST TECHNOLOGIES, INC.
0000 Xxxx 00xx Xxxxxx, Xxxxx X00, Xx. Xxxxx Xxxx, Xxxxxxxxx 00000 XXX
(000) 000-0000; FAX: (000) 000-0000
EXHIBIT B
MARKETING RIGHTS
A. ELIGIBLE LESCO MARKETS:
1. Lawn Care Operators.
2. Lawn Maintenance Companies and Golf Courses.
3. Theme parks, resort and recreational complexes, athletic
facilities, schools and universities, military installations,
industrial complexes and cemeteries.
B. ELIGIBLE LESCO TERRITORY:
The territory shall include regions served by 196 established LESCO Service
Centers in operation as of December 31, 1995, as well as 68 Stores-on-Wheels
operating primarily in the eastern United States.
EXHIBIT C
TERMS OF SALE -1996-1997
IN CONSIDERATION FOR THE RIGHTS GRANTED UNDER EXHIBIT B ("MARKETING RIGHTS"),
THE FOLLOWING PRICE PROGRAM IS PREDICATED ON MINIMUM AGGREGATE PURCHASES
TOTALING (Confidential Treatment Requested) GALLONS PRIOR TO DECEMBER 31, 1997.
A. COMMERCIAL DISTRIBUTOR PRICING - Truckload price (in gallons):
Pre-packaged 55-gallon drum/gallon: (Confidential Treatment Requested)
Pre-packaged 00/0.0 xxxxxx xxxxxx/xxxxxx (Confidential Treatment Requested)
Bulk truckload (4,000-5000 gallons)/gallon (Confidential Treatment Requested)
B. TERMS:
Net thirty (30) days from date of shipment of prepackaged Products.
Net sixty (60) days from date of shipment of bulk load purchases.
C. ORDERS AND ORDER ACKNOWLEDGEMENT:
Orders for Products shall be placed by LESCO in writing to NORTECH by mail or
by facsimile machine not later than thirty (30) days in advance of expected
delivery date at LESCO's receiving point. NORTECH shall provide written
acknowledgment of such orders within 48 hours of order.
D. QUALIFYING ORDERS:
(Confidential Treatment Requested)
E. FREIGHT:
LESCO's traffic department provides shipping instructions; LESCO pays all
freight expense from NORTECH's formulation facility in Xxxxxxxxxx, Xxxx
00000-0000.
F. ADVERTISING ALLOWANCE:
Nortech will provide LESCO a Three Percent (3%) co-op advertising allowance,
computed on total sales between January 1, 1996 and December 31, 1996,
subject to proof of performance. 1-quart trigger sprayer bottle (Confidential
Treatment Requested) will qualify under advertising allowance.
EXHIBIT D
Exhibit 7:
Acknowledgment Form
This acknowledges receipt of
LESCO SUPPLIER SERVICE STANDARDS
in (1) Copies
BY:
Company Name NORTECH FOREST TECHNOLOGIES, INC.
Your Name XXXXXX X. XXXXXXX
Your Title NATIONAL SALES MANAGER
Date AUGUST 6, 1996
Please return this completed form to LESCO at:
LESCO, Inc.
Purchasing Department
00000 Xxxx Xx.
Xxxxx Xxxxx, XX 00000
LESCO Supplier Service Standards * 01/07/95 * Page 46
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed in
duplicate by their duly authorized representatives as of the day and year first
above written.
NORTECH Forest Technologies, Inc. LESCO, Inc.
By: /s/ Xxx xxXxxxx /s/ Xxxxxxxx X. Xxxxxxxx
Name: Xxx xxXxxxx Name: Xxxxxxxx X. Xxxxxxxx
Title: CEO Title: Vice President, General Counsel/
Corporate Secretary
Date: 8-21-96 Date: September 3, 1996
