Exhibit 10.24
LISTING AGREEMENT
THIS LISTING AGREEMENT (this "Agreement") is made and entered into as of
March 7, 2000, by and between Staples, Inc., a Delaware corporation ("Staples"),
and XxxxxXxxxxxxx.xxx, Inc., a Delaware corporation ("PaperExchange").
WHEREAS, Staples owns and operates a nationwide chain of retail stores
that sell office supplies, including cut sheet paper (such cut sheet paper along
with Staples' paper stock for advertising and catalogues being referred to
herein, collectively, "Cut Sheet Paper");
WHEREAS, PaperExchange provides a real-time on-line trading exchange (the
"Exchange") for paper and other products to registered users of PaperExchange
services (the "Members");
WHEREAS, Staples is a Member of PaperExchange pursuant to the terms of the
Membership Agreement dated as of _________(the "Membership Agreement"); and
WHEREAS, Paper Exchange and Staples desire that, among other things,
Staples commit to list on the Exchange a majority of its requirements for Cut
Sheet Paper and at a minimum, Staples agree that it will list for Purchase (as
defined in Section 1 below) and Purchase on the Exchange its requirements for at
least ***** tons of Cut Sheet Paper during the next two years, subject to the
terms and conditions of this Agreement;
NOW THEREFORE, the parties, in consideration of the undertakings and
commitments set forth herein, agree as follows:
1. Listings. Staples (a) agrees to use its commercially reasonable
efforts to list on the Exchange for Purchase a majority of its requirements
for Cut Sheet Paper and (b) agrees that it will list and Purchase on the
Exchange at least in the aggregate ***** tons of Cut Sheet Paper during the
next two years commencing on the date of this Agreement and in the minimum
amount (each a "Minimum Quarterly Amount") during each quarter set forth on
Schedule 1 attached hereto (each such quarter being referred to as a
"Measuring Quarter") ; provided that Staples shall not be liable hereunder
for its failure to Purchase in any Measuring Quarter the corresponding
Minimum Quarterly Amount if such failure arises solely as a consequence of
the unavailability on the Exchange during such Measuring Quarter of Cut Sheet
Paper that is (i) at least of substantially similar quality as the Cut Sheet
Paper that Staples has historically purchased in the ordinary course of its
business for similar purposes, either on the Exchange or elsewhere, prior to
the date of this Agreement, (ii) for sale at then market or below market
prices (in each case after taking into account all available discounts,
rebates, marketing subsidies, freight savings and other vendor concessions)
and (iii) offered for sale on terms which reasonably meet the logistical
requirements of Staples (such as delivery, packaging, including packaging
artwork and pricing codes, and other reasonable logistical requirements of
Staples). PaperExchange agrees to accept the foregoing listings; provided
that in no event shall PaperExchange be liable to Staples in the event that
Staples' requirements for Cut Sheet Paper are not met through the Exchange.
For the avoidance of doubt, Staples and PaperExchange agree that if there is
a default in the delivery of Cut Sheet Paper (which otherwise meets the
* Confidential Treatment Requested: material has been omitted and filed
separately with the Commission.
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specifications set forth in clauses (i), (ii) and (iiii) above) after Staples
has contracted for the Purchase thereof on the Exchange, such Cut Sheet Paper
(which was contracted for but not delivered) shall be deemed to have been
"unavailable" on the Exchange for purposes of the proviso of the immediately
preceding sentence. For purposes of this Agreement, the term "Purchase" shall
mean when Staples takes title to Cut Sheet Paper from PaperExchange (in its
capacity as a principal and not as agent for a seller) by means of a transaction
on the Exchange.
2. Term and Termination. The term of this Agreement shall be for a period
commencing on the date of this Agreement through (and including) March 31, 2002
(the "Initial Term") and shall automatically renew for one-year terms thereafter
unless at any time after the Initial Term, either party terminates this
Agreement upon no less than thirty (30) days' prior written notice to the other
party.
3. General Provisions.
3.1 Staples and PaperExchange 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.
3.2 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.
3.3 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 PaperExchange: If to Staples:
XxxxxXxxxxxxx.xxx, Inc. Staples, Inc.
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx Five Hundred Staples Drive
Boston, MA 02116 Xxxxxxxxxx, XX 00000
Attention: President and CEO Attention: Xxxxxxx X. Xxxxxx,
Telecopier No.: (000) 000-0000 Executive Vice President,
Merchandising
Telecopier No.: (000) 000-0000
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with copies to: with copies to:
Xxxxxxx Xxxx LLP Staples, Inc.
000 Xxxxxxx Xxxxxx Five Hundred Staples Drive
Boston, MA 02110 Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxxxxxxx, Attention: Xxxx X. Xxx Xxxxxxx, Esq.
Esq. Telecopier No.: (000) 000-0000
Telecopier No.: (000) 000-0000
3.4 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.
3.5 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.
3.6 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.
3.7 Any advertising, publicity, release, or other disclosure of
information concerning this Agreement must be approved in writing by both
parties (which approval will not be unreasonably withheld), except to the extent
disclosure is legally required.
3.8 This Agreement, in conjunction with the Membership Agreement,
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.
3.9 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.
3.10 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.,
a Delaware corporation
By: /s/ Xxxxx XxXxxxx
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Name: Xxxxx XxXxxxx
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Title: Secretary & Treasurer
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Staples, Inc.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
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Title: Chairman of the Board
---------------------------------
and CEO
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Schedule 1
MEASURING PERIODS AND TONNAGE
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Minimum Whole
Tons of
Measuring Quarter Cut Sheet Paper
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April 1, 2000 through June 30, 2000 *****
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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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TOTAL: *****
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* Confidential Treatment Requested: material has been omitted and filed
separately with the Commission.
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