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EXHIBIT 10(y)
CONFIDENTIAL
AGREEMENT BETWEEN
OXOID INC AND NEOGEN CORPORATION
This Agreement, entered into on July 1, 1997 by and between:
OXOID INC
000 Xxxxxxxxx Xxxx
Xxxxxx
Xxxxxxx, X0X 0X0
a corporation organised under the laws of the Canada hereinafter referred to as
SUPPLIER; and
NEOGEN CORPORATION
000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
a Corporation organised under the laws of the State of Michigan and hereinafter
referred to as DISTRIBUTOR.
W I T N E S S E T H
WHEREAS, SUPPLIER manufactures diagnostic test kits and reagents for
the detection of Listeria, hereinafter referred to as PRODUCTS, and desires to
sell its products through a distributor; and
WHEREAS, DISTRIBUTOR desires to purchase the SUPPLIER'S PRODUCTS for
resale to end users; and
WHEREAS, the parties desire to enter into a distributorship agreement
governing their relationship;
NOW, THEREFORE, in consideration of the mutual terms and conditions set
forth herein, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. PRODUCT
1.1 PRODUCTS: The products covered by this Agreement are those
products and accessories set forth and attached hereto in
Exhibit A ("PRODUCTS").
Exhibit A may be amended from time to time by mutual written
consent of the parties.
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1.2 Product Modifications: Any improved or updated version of the
PRODUCTS introduced by SUPPLIER during the term hereof shall be
available to DISTRIBUTOR under the same terms and conditions
herein. SUPPLIER may at any time cease to manufacture any
PRODUCTS from its range of PRODUCTS in the Territory, provided
SUPPLIER gives DISTRIBUTOR ninety (90) days notice of intention.
1.3 Shelf Life: SUPPLIER represents and warrants that all products
with a limited shelf life will have a minimum of twelve months
remaining shelf life at date of shipment to DISTRIBUTOR.
2. DISTRIBUTORSHIP AND TERRITORY
2.1 Non-exclusivity: SUPPLIER hereby grants to DISTRIBUTOR, and
DISTRIBUTOR accepts, the non-exclusive right to sell,
distribute, and service the PRODUCTS for the term of and
pursuant to the conditions of this Agreement. SUPPLIER retains
the right to sell and service the products but will not name
other distributors in the United States without first providing
DISTRIBUTOR with sixty (60) days notice of such intent.
2.2 Territory: The territory in which the DISTRIBUTOR has the right
to sell and distribute shall be the United States, Canada, South
America and Central America only ("xxx Xxxxxxxxx").
2.3 During the term of this Agreement, DISTRIBUTOR shall not
directly or indirectly be involved in the manufacture or
distribution of any goods which will compete with PRODUCTS in
the Territory.
3. ORDERS
3.1 Orders: DISTRIBUTOR shall make purchases by submitting firm
purchase orders to SUPPLIER, using the DISTRIBUTOR'S purchase
order form shown in Exhibit B.
3.2 Volume: DISTRIBUTOR'S twelve (12) month projected purchase
volume is shown in Exhibit C (Projections). A six (6) month
forecast will be submitted to the SUPPLIER at the beginning of
each quarter. The volume forecast for the first three (3)
months of this forecast will be taken as a firm order. For the
purposes of this clause quarters shall begin on the first of the
month of January, April, July and October.
3.3 Intentionally Omitted.
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4. SHIPPING AND DELIVERY
4.1 Shipping: SUPPLIER shall ship all products ex-works. SUPPLIER
will ship all PRODUCTS for which it has received a firm purchase
order within sixty (60) days of order receipt.
5. PRICE AND PAYMENT TERMS
5.1 Price: SUPPLIER will supply and ship Product at the prices shown
in Exhibit A. Such prices shall be effective for a period of
one year commencing on July 1, 1997 and thereafter the SUPPLIER
reserves the right to modify these prices annually, considering
changes in raw material costs, manufacturing costs, freight and
other market conditions including relevant price indices or
statistics used by the UK government or independent
organisation, giving ninety (90) days written notice to the
DISTRIBUTOR and providing the DISTRIBUTOR with reasonable
explanation of the change. When a new price is set by the
SUPPLIER it shall automatically supersede all such prior price
lists.
5.2 Payment Terms: Payment terms shall be full amount due thirty
(30) days from date of invoice. The SUPPLIER'S terms and
conditions shall take precedence.
6. PACKAGING
6.1 Packaging: SUPPLIER will supply products in sizes and packaging
configurations corresponding to those set forth in Exhibit A.
SUPPLIER will print any expiration date and lot numbers
conspicuously on all packages. Any additional actual costs for
packaging shall be borne by DISTRIBUTOR. All packaging shall be
approved by SUPPLIER. If no comment on this packaging is made
by SUPPLIER within thirty (30) days of SUPPLIER receiving
samples of packaging, DISTRIBUTOR may assume approval. All
packaging designs and get ups shall belong to SUPPLIER.
7. STOCK
7.1 DISTRIBUTOR shall purchase and maintain at all times adequate
stocks of the PRODUCTS in keeping with the requirements of the
Territory.
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8. TERM AND TERMINATION
8.1 Intentionally Omitted.
8.2 Termination: Notwithstanding the foregoing, this Agreement may
be terminated for cause at any time as follows:
a. In the event of default or material breach of the terms of this
Agreement by either party, written notice may be given to the
defaulting party. Thereafter, the defaulting party shall have
thirty (30) days to cure said breach. In the event that said
breach has not been cured within said thirty (30) days period,
this Agreement shall terminate on the thirtieth (30th) day
following the notice of default.
b. In the event of nationalisation, expropriation, liquidation or
bankruptcy of, or an assignment for the benefit of creditors of,
or a declaration of insolvency or cessation of trading by,
either party.
c. There is a change in ownership of the other party which is
unacceptable to either party.
Neither party shall be liable to the other party because of
termination of or refusal to renew this Agreement for
compensation, reimbursement, or damages on account of the loss
of prospective profit on anticipated sales or on account of
expenditures, investments, leases, or any type of commitments
made in connection with the business of the other party.
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9. OBLIGATIONS ON TERMINATION
9.1 The provision of Clauses 8 and 12 and this Clause shall survive
even after the termination or cancellation of this Agreement.
9.2 Upon termination or cancellation of this Agreement pursuant to
Clause 8, any and all obligations of DISTRIBUTOR accrued and
existing under this Agreement shall become due and payable.
9.3 Upon termination of this Agreement DISTRIBUTOR shall return to
SUPPLIER without delay such confidential documents and such
promotional material as SUPPLIER may request. Notwithstanding
the foregoing, upon termination or cancellation of this
Agreement, DISTRIBUTOR shall be entitled, at DISTRIBUTOR'S
option to sell any stock on hand at the date of such termination
or cancellation.
10. WARRANTIES, INDEMNITY, AND RECALL
10.1 Intentionally Omitted.
10.2 Intentionally Omitted.
11. TRADEMARKS
11.1 Trademark License: SUPPLIER hereby grants to DISTRIBUTOR the
royalty-free right to use SUPPLIER'S trademarks on SUPPLIER'S
products and in promoting the SUPPLIER'S product during the term
of this Agreement. DISTRIBUTOR hereby grants to SUPPLIER the
royalty-free right to use DISTRIBUTOR'S trademarks on SUPPLIER'S
product for sale to DISTRIBUTOR during the term of this
Agreement. Each party shall discontinue to use of the other
party's trademarks upon the termination hereof.
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12. CONFIDENTIALITY
The parties hereto shall keep confidential all trade secrets and
other confidential information and commercially sensitive
information provided by the other party (including prices for
the PRODUCTS, plans for product development, etc.,) acquired in
the course of transactions under this Agreement, and shall not
disclose such secrets or information to any individual, firm or
corporation except when authorised in writing to do so by the
other party. This clause shall remain effective for ten (10)
years after the termination or cancellation of this Agreement.
The proprietary information provided by either party shall not
be used by the other party for any purpose other than as set
forth in this Agreement.
13. GOVERNING LAW AND JURISDICTION
13.1 This Agreement shall be construed and enforced in accordance
with the Laws of Michigan, USA.
13.2 All disputes arising under or in connection with this Agreement
shall be fully and finally resolved under either the then
effective rules of arbitration of the American Arbitration
Association or the Rules of Conciliation Arbitration of the
International Chamber of Commerce. The arbitration shall be
conducted in the State of New York before a panel of three
arbitrators under the auspices of the American Arbitration
Association or International Chamber of Commerce. The party who
initiates the arbitration shall designate which body shall
conduct the arbitration. Each party shall each designate one
arbitrator. The parties hereby consent to the State of New York
as the exclusive venue for such arbitration and neither party
will bring any suit, claim or action in any way arising out of
or relating to this Agreement in any other forum.
Further, the SUPPLIER and DISTRIBUTOR hereby irrevocably and
unconditionally waive any objections to such venue and each
agrees that it shall not otherwise plead or claim that such
venue is improper. The arbitrators shall be persons
knowledgeable in the legal and business issues involved in and
common to the sale of Food Microbiology testing products, with
each arbitrator having at least five years experience in such
business. The decision of the arbitrators shall be conclusive,
final and binding upon the parties and may be enforced by any
court of competent jurisdiction in the United States or in any
other applicable jurisdiction.
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14. MISCELLANEOUS
14.1 Force Majeure: No failure or omission by the parties hereto in
the performance of any obligations of this Agreement shall be
deemed a breach of this Agreement nor create any liability if
the same shall arise from any cause or causes beyond the control
of the parties, including, but not limited to, the following,
which, for the purpose of this Agreement shall be regarded as
beyond the control of the parties in question; act of God, acts
or omissions of any government or any rules, regulations or
orders of any governmental authority or any officer, department,
agency or instrumentality thereof; fire, storm, flood,
earthquake, insurrection, riot, invasion or strikes. The
affected party shall use its best efforts to remedy the effects
of such force majeure. Any force majeure shall not excuse
performance by the party, but shall postpone performance, unless
such force majeure continues more than ninety (90) days. In such
event, the other party may cancel its obligations hereunder.
14.2 Assignment: This Agreement may not be assigned without the
prior written consent of the other party.
14.3 Notices: Any notice required or permitted to be given under the
terms of this Agreement shall be in writing, properly addressed
to the appropriate person at the address set out herein or such
address as notified from time to time and shall be given in
person or by registered mail or telegram.
14.4 Entire Agreement: This Agreement, including exhibits
constitutes the entire Agreement between the parties relating to
the subject matter hereof and cancels and supersedes all prior
agreements and understandings, whether written or oral, between
the parties with respect to such subject matter.
14.5 Modifications; Waiver: This Agreement may not be modified
orally and no modification or any claimed waiver of any of the
provisions hereof shall be binding unless in writing and signed
by the party against whom enforcement of such modification or
waiver is sought.
14.6 Relationship of the Parties: This Agreement does not constitute
either party the agent or legal representative of the other for
any purpose whatsoever.
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IN WITNESS WHEREOF, the parties have executed this Agreement by their
duly authorised representatives:
SUPPLIER DISTRIBUTOR
Signed: Xxxxxx Xxxxx Signed: Xxxxx X. Xxxxxxx
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Xxxxxx Xxxxx Xxxxx X. Xxxxxxx
President, Oxoid Inc. President, Neogen Corporation
Date: June 6, 1997 Date: June 16, 1997
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