SALES AGENCY AND MARKETING AGREEMENT MADE AND ENTERED INTO IN XXX XXXX XXX
XXXXXXXX XX XXXXXXXX, XX THE 16TH DAY OF OCTOBER, 1997
BY AND BETWEEN: LAMINES CTEK INC., a body politic and corporate, duly
incorporated according to the Canada Business Corporations
Act, having its head office and principal place of business in
the City of Montreal, Province of Quebec,
(hereinafter referred to as the "Corporation")
PARTY OF THE FIRST PART
AND: COMPOSITECH LTD., a body corporate, duly incorporated
according to the laws of the State of Delaware, having its
head office and principal place of business in the Hamlet of
Hauppauge, State of New York,
(hereinafter referred to as the "Agent")
PARTY OF THE SECOND PART
SECTION 1 - PREAMBLE
1.1 WHEREAS the Agent is engaged in the business of developing, manufacturing,
marketing and selling Agent's and JV's Products (as hereinafter defined);
1.2 WHEREAS the Corporation will be engaged in the business of manufacturing and
selling Canco Products (as hereinafter defined);
1.3 WHEREAS the Agent's and JV's Products and the Canco Products are similar in
nature and the Agent has represented to the Corporation that it is familiar with
the market for the Canco Products in the Territory (as hereinafter defined) and
is qualified and prepared to market and sell the Canco Products throughout the
Territory for the mutual benefit of both parties;
1.4 WHEREAS the parties hereto are desirous of entering into this Agreement
whereby the Agent shall act as the exclusive sales agent of the Corporation and
shall solicit orders on its behalf for the Canco Products within the Territory.
NOW THEREFORE THE PARTIES HAVE AGREED AS FOLLOWS:
- 2 -
SECTION 2 - DEFINITIONS
2.1 Definitions. In this Agreement:
2.1.1 "Affiliate" has the meaning ascribed thereto in the Canada Business
Corporations Act; however, the parties shall not be deemed to be
"Affiliates" of one another for the purposes of this Agreement;
2.1.2 "Agent Approval" has the meaning ascribed thereto at subsection 4.6;
2.1.3 "Agent Determination" has the meaning ascribed thereto at subsection
4.6;
2.1.4 "Agent's Bad Debts" means the aggregate annual amount of all accounts or
notes receivable related to the sale, in North America, of any Products
manufactured by the Agent or any of its Affiliates at Agent's Plants
that are reasonably considered uncollectible;
2.1.5 "Agent's and JV's Plant(s)" means any manufacturing plant of laminates
for printed wiring boards and all other uses owned, in whole or in part,
by the Agent, its Affiliates or Joint Ventures;
2.1.6 "Agent's Plant(s)" means any manufacturing plant of laminates for
printed wiring boards and all other uses owned, in whole or in part, by
the Agent or its Affiliates;
2.1.7 "Agent's and JV's Products" means any Products manufactured by the
Agent, any of its Affiliates or Joint Ventures at Agent's and JV's
Plants;
2.1.8 "Agent's Products" means any Products manufactured by the Agent or any
of its Affiliates at Agent's Plants;
2.1.9 "Agent's Proportionate Share" means a fraction, the numerator of which
shall be the aggregate amount of annual sales in North America of
Agent's Products and the denominator of which shall be the aggregate
amount of annual sales in North America of Canco Products and Agent's
Products;
2.1.10 "Amount" has the meaning ascribed thereto at subsection 9.3.2;
2.1.11 "Annual Marketing Plan" has the meaning ascribed thereto at subsection
4.1;
2.1.12 "Approval" has the meaning ascribed thereto at subsection 4.6;
- 3 -
2.1.13 "Average Price per Similar Product" has the meaning ascribed thereto at
subsection 10.1;
2.1.14 "Canco Product(s)" means any Products manufactured at the Plant;
2.1.15 "Compensated Party" has the meaning ascribed thereto at subsection 10.2;
2.1.16 "Confidential Information" of a Disclosing Party means all business
plans, customers lists, selling price of Products and knowledge
concerning the business and affairs of the Disclosing Party, including,
without limitation, data as to sales of Products or as to customers and
any other information relating to the marketing or selling of the
Products, all of which information is proprietary to the Disclosing
Party, except for information that the Receiving Party can reasonably
demonstrate:
2.1.16.1 has become generally known to those in the printed wiring board
field other than through unauthorized disclosure by the
Receiving Party;
2.1.16.2 is known to the Receiving Party prior to disclosure by the
Disclosing Party; or
2.1.16.3 has become available to the Receiving Party on a
non-confidential basis from a source other than the Disclosing
Party.
2.1.17 "Corporation Determination" has the meaning ascribed thereto at
subsection 4.6;;
2.1.18 "Corporation Expense Adjustment" has the meaning ascribed thereto at
subsection 4.6;
2.1.19 "Corporation's Bad Debts" means the aggregate amount of all accounts or
notes receivable related to the sale of Canco Products in North America
that are reasonably considered uncollectible;
2.1.20 "Corporation's Proportionate Share" means a fraction, the numerator of
which shall be the aggregate amount of annual sales of Canco Products in
North America and the denominator of which shall be the aggregate amount
of sales in North America of Canco Products and Agent's Products;
2.1.21 "Defaulting Party" has the meaning ascribed thereto at subsection 21.1;
2.1.22 "Disclosing Party" has the meaning ascribed thereto at subsection 15.1;
2.1.23 "Dispute" has the meaning ascribed thereto at subsection 18.1;
- 4 -
2.1.24 "Expense Adjustment" has the meaning ascribed thereto at subsection 4.6;
2.1.25 "Expenses" means the expenses, up to the maximum amount provided in the
Annual Marketing Plan, associated with the sale and marketing of the
Canco Products and Agent's and JV's Products in North America excluding
any expenses set out in subsection 13.1 of the License Agreement and
which are to be paid by the Corporation and similar expenses to be paid
by any licensee of the Agent as provided in a license agreement entered
into by such licensee and the Agent. Any Expenses payable in a currency
other than United States dollars shall be converted into United States
dollars on the date of the payment of such Expenses by the Agent;
2.1.26 "Fairness Committee" has the meaning ascribed thereto at subsection 15.1
of the License Agreement;
2.1.27 "First Period" has the meaning ascribed thereto at subsection 9.3;
2.1.28 "Force Majeure" has the meaning ascribed thereto at subsection 13.1;
2.1.29 "Joint Ventures" means any entity in which the Agent or any of its
Affiliates has an equity interest of at least 33 1/3 %; however, the
parties shall not be deemed to be in a "Joint Venture" relationship with
one another for the purposes of this Agreement;
2.1.30 "License Agreement" means that certain technology licensing agreement
entered into between the Agent and the Corporation on the date hereof;
2.1.31 "Licensee" means any entity which is a licensee or sub-licensee of the
Agent or any of its Affiliates or Joint Ventures and for which the Agent
acts as sales and/or marketing agent; however, for the purposes of this
Agreement, the Corporation shall not be deemed to be a "Licensee" of the
Agent;
2.1.32 "Licensee's Plant(s)" means any manufacturing plant of laminates for
printed wiring boards and all other uses owned, in whole or in part, by
a Licensee;
2.1.33 "Licensee's Products" means any Products manufactured by a Licensee at
Licensee's Plants;
2.1.34 "Normal Capacity" means the Plant both manufacturing and shipping
2,475,000 square feet of Canco Products during the same period of three
(3) consecutive months in response to firm orders received by the
Corporation in the normal course of business justifying the
manufacturing of such quantity of Canco Products;
- 5 -
2.1.35 "North America" means Canada, the United States of America, Mexico, the
Caribbean Islands including the Antilles and the Bahamas;
2.1.36 "Person" means an individual, partnership, joint venture, trustee,
trust, corporation, division of a corporation, unincorporated
organization or other entity or a government, state or agency or
political subdivision thereof, and pronouns when they refer to a Person
have a similar extended meaning;
2.1.37 "Planned Proportion" means a fraction the numerator of which shall be
the planned manufacturing capacity of the Plant for the twelve (12)
month period in question and the denominator of which shall be the
aggregate of (i) the planned manufacturing capacity of the Plant for
such twelve (12) month period and (ii) the planned manufacturing
capacity of the Agent's and JV's Plants and the Licensee's Plants
situated in North America for such twelve (12) month period;
2.1.38 "Plant" means the manufacturing plant of the Corporation to be situated
in the Montreal region;
2.1.39 "Prime Rate" means the interest rate quoted publicly by the
Corporation's regular bankers as the reference rate of interest for
commercial demand loans made in US dollars and commonly known as such
bank's prime rate, as adjusted from time to time, on the basis of the
Prime Rate in effect on the first day of each month;
2.1.40 "Product(s)" shall have the meaning ascribed thereto at subsection
2.1.29 of the License Agreement;
2.1.41 "Projected Sales Proportion" means a fraction the numerator of which
shall be the projected annual sales of Canco Products in North America
and the denominator of which shall be the aggregate of (i) the projected
annual sales of Canco Products in North America; (ii) when an Agent's
and JV's Plant has sold Agent's and JV's Products in North America, the
projected annual sales of Agent's and JV's Products in North America of
such plant; (iii) in the event that an Agent's and JV's Plant situated
in North America has not made any sales of Agent's and JV's Products in
North America in a given year, the planned manufacturing capacity of
such plant multiplied by the estimated weighted average selling price of
all Products sold in North America in such year; (iv) when a Licensee's
Plant has sold Licensee's Products in North America, the projected
annual sales of Licensee's Products in North America of such plant; and
(v) in the event that a Licensee's Plant situated in North America has
not made any sales of Licensee's Products in North America in a given
year, the planned manufacturing capacity of such plant multiplied by the
estimated weighted average selling price of all Products sold in North
America in such year;
- 6 -
2.1.42 "Proportionate" means the proportion equal to the manufacturing capacity
of the Plant divided by the manufacturing capacity of the Plant and the
Agent's and JV's Plants situated in North America;
2.1.43 "Receiving Party" has the meaning ascribed thereto at subsection 15.1.2;
2.1.44 "Representatives" has the meaning ascribed thereto at subsection 15.2;
2.1.45 "Sales Proportion" means a fraction the numerator of which shall be the
actual annual sales of Canco Products in North America and the
denominator of which shall be the aggregate of (i) the actual annual
sales of Canco Products in North America; (ii) when an Agent's and JV's
Plant has sold Agent's and JV's Products in North America, the actual
annual sales of Agent's and JV's Products in North America of such
plant; (iii) in the event that an Agent's and JV's Plant situated in
North America has not made any sales of Agent's and JV's Products in
North America in a given year, the planned manufacturing capacity of
such plant multiplied by the weighted average selling price of all
Products sold in North America in such year; (iv) when a Licensee's
Plant has sold Licensee's Products in North America, the projected
annual sales of Licensee's Products in North America of such plant; and
(v) in the event that a Licensee's Plant situated in North America has
not made any sales of Licensee's Products in North America in a given
year, the planned manufacturing capacity of such plant multiplied by the
weighted average selling price of all Products sold in North America in
such year;
2.1.46 "Similar Products" means, when comparing Products manufactured by
different plants, Products having a similar core thickness, copper-grade
content (ounces per square foot), sheet size and thermal rating;
2.1.47 "Technical Services Agreement" means the services agreement entered into
on the date hereof between the Agent and the Corporation;
2.1.48 "Terms and Policies" shall have the meaning ascribed thereto at
subsection 7.1;
2.1.49 "Territory" means the world;
2.1.50 "Total Bad Debts" means the sum of the Agent's Bad Debts and the
Corporation's Bad Debts.
2.2 Determination of "sales" and "price". For the purposes of the definitions of
"Agent's Proportionate Share", "Corporation's Proportionate Share", "Projected
Sales Proportion" and "Sales Proportion" and for the purposes of determining the
"Average Price per Similar Product" or the "average price per square foot"
pursuant to subsections and hereof, the sales and prices shall be calculated on
an "Ex-Works" basis net of any tariff, customs duties and penalties, sales and
value added taxes, user fees, service fees, packaging costs, freight costs and
- 7 -
transportation insurance costs, transloading costs and all other costs
associated with deliveries, damage allowances, rebates, returns, volume
incentives and any other costs, duties and fees which should be excluded to
allow the sales and prices to be calculated on an "Ex-Works" basis as provided
in the 1990 Incoterms of the International Chamber of Commerce.
SECTION 3 - EXCLUSIVE SALES REPRESENTATIVE
3.1 Appointment. The Corporation hereby grants to the Agent, who accepts, the
exclusive right to act as the sales representative of the Corporation by
soliciting orders for Canco Products within the Territory in accordance with the
Annual Marketing Plan and the Terms and Policies, the whole in accordance with
the terms and conditions hereof.
3.2 Exclusivity. The Corporation shall not, during the term of this Agreement,
grant to any other person or entity within the Territory the right to represent
or sell the Canco Products. The Corporation hereby undertakes to refer to the
Agent all inquiries relating to the Canco Products received by the Corporation
from actual or potential customers.
SECTION 4 - OBLIGATIONS OF THE AGENT
4.1 Annual Marketing Plan. The Agent shall prepare for each fiscal year of the
Corporation an annual marketing plan (the "Annual Marketing Plan") for the
Corporation, the Agent and all of its Affiliates and Joint Ventures. The Annual
Marketing Plan shall provide without limitation, for the applicable fiscal year,
the following, the goal of which shall be to operate the Plant at maximum
production capacity:
4.1.1 the marketing budget details for North America;
4.1.2 the marketing and sales strategies and policies for North America;
4.1.3 the provisions as to the warranty to be granted for the Canco Products
and Agent's and JV's Products sold in North America;
4.1.4 the maximum Expenses for the fiscal year in question;
and shall provide, without limitation, the following to allow the Corporation to
plan the Plant's production of Canco Products in the fiscal year in question:
4.1.5 the estimated delays for production and delivery of Canco Products;
4.1.6 information regarding the type, regional volumes and quantities of Canco
Products estimated by the Agent to be required in the Territory and to
be manufactured by the Plant during the fiscal year in question; and
- 8 -
4.1.7 the projected sales of Canco Products and Agent's and JV's Products in
North America.
The Annual Marketing Plan shall be submitted to the board of directors and/or
shareholders, if applicable, of the Corporation for their approval at the latest
three (3) months before the end of each fiscal year of the Corporation. If the
board of directors or shareholders of the Corporation is(are) unable to arrive
at a decision relating to an Annual Marketing Plan, the Annual Marketing Plan of
the prior year shall be renewed mutatis mutandis. The Annual Marketing Plan
shall be adjusted on a quarterly basis (particularly to take into account
changing market conditions including, without limitation, the volume of sales or
expenses related to the marketing of Canco Products and Agent's and JV's
Products and requested types of Products) and any adjustment to the Annual
Marketing Plan shall be submitted to the board of directors and/or shareholders,
if applicable, of the Corporation for their approval before coming into effect.
4.2 First Annual Marketing Plan. The Agent shall submit to the board of
directors of the Corporation, at its first meeting following the execution
hereof, a first Annual Marketing Plan for a period commencing on the date hereof
and ending on December 31, 1998. Until such time as the board of directors
approves the first Annual Marketing Plan, the Corporation shall not make any
payments to the Agent pursuant to Section 9 hereof, however, after such
approval, the Corporation shall reimburse the Agent, retroactively to the date
hereof and in the manner provided in Section 9 hereof, for the Expenses
incurred.
4.3 Guiding Principles. The parties shall, at all times, adhere to the guiding
principles set forth in Section 19 hereof.
4.4 Receivables. The Agent shall, with commercially reasonable diligence,
collect all the outstanding accounts owed to the Corporation pursuant to orders
accepted by the Corporation failing which, the Agent, after reasonable notice
from the Corporation, shall cease to be responsible for such collection. Such
accounts shall remain at all times the property of the Corporation. Furthermore,
the Agent shall transmit promptly to the Corporation any payments received by
the Agent on behalf of the Corporation and until such payments are transmitted,
the Agent shall hold such payments separately on deposit on the Corporation's
behalf. The Agent shall satisfy itself, with due diligence, of the solvency of
customers whose orders it transmits to the Corporation and shall not transmit
orders from customers of which it knows or ought to know that they are unable to
pay their creditors in the ordinary course of business, without informing the
Corporation in advance of such fact.
4.5 Information. The Agent shall, at all times, maintain updated and accurate
information, in all material respects, on the sales of Canco Products and
Agent's and JV's Products and on all the customers (actual, potential and
targeted) of the Corporation, the Agent, its Affiliates and Joint Ventures and
shall make such information and all marketing plans, data and information
concerning the sales of the Canco Products and Agent's and JV's Products
available
- 9 -
at all times to the Corporation for its consultation and the Corporation shall
be allowed to make copies of all such documents subject to confidentiality
requirements.
4.6 Planned Manufacturing Capacity. The Agent shall be obliged to promptly
inform the Corporation in writing of the planned manufacturing capacity in
square feet of Products in all Agent's and JV's Plants and Licensee's Plants
situated in North America and of any change thereto (the "Agent Determination").
The board of directors of the Corporation shall then decide whether or not to
approve such Agent Determination. In the event that such board of directors
approves of same in writing within 10 days of being informed by the Agent
thereof (the "Approval"), then the parties shall determine any adjustment to the
Expenses already paid by the Corporation for the period in question and the
manner in which same is to be acquitted (the "Expense Adjustment"). In the event
that the parties cannot agree on the Expense Adjustment within 10 days of the
Approval, then the parties shall submit this matter to the Fairness Committee
pursuant to Section 18 hereof. However, in the event that such board of
directors does not approve of the Agent Determination within 10 days of being
informed by Agent thereof, then the parties shall submit the Agent Determination
as well as the Expense Adjustment to the Fairness Committee pursuant to Section
18 hereof.
The board of directors of the Corporation shall be obliged to promptly inform
the Agent in writing of the planned manufacturing capacity in square feet of
Products in the Plant and of any change thereto (the "Corporation
Determination"). The Agent shall then decide whether or not to approve such
Corporation Determination. In the event that the Agent approves of same in
writing within 10 days of being informed by the Corporation thereof (the "Agent
Approval"), then the parties shall determine any adjustment to the Expenses
already paid by the Corporation for the period in question and the manner in
which same is to be acquitted (the "Corporation Expense Adjustment"). In the
event that (i) the parties cannot agree on the Corporation Expense Adjustment
within 10 days of the Agent Approval or (ii) the board of directors of the
Corporation cannot advise the Agent in writing of the Corporation Determination
within 10 days of being requested in writing to do so by the Agent, then the
parties shall submit this matter to the Fairness Committee pursuant to Section
18 hereof. However, in the event that the Agent does not approve of the
Corporation Determination within 10 days of being informed by the board of
directors of the Corporation thereof, then the parties shall submit the
Corporation Determination as well as the Corporation Expense Adjustment to the
Fairness Committee pursuant to Section 18 hereof.
For the first two twelve (12) month periods following the date hereof, the
parties hereby agree that the estimated planned manufacturing capacity of the
Plant is 9 900 000 square feet of Products per twelve (12) month period and the
estimated planned manufacturing capacity of the Agent's Plant situated in Long
Island, New York is 4 950 000 square feet of Products per twelve (12) month
period, the whole subject to the provisions of the first two paragraphs of this
subsection 4.6.
- 10 -
SECTION 5 - SALES EFFORT
5.1 Sales Effort. The Agent agrees to actively solicit orders for Canco Products
on behalf of Corporation, employ in its own name, at its own expense, such
number of salespersons or representatives as to ensure proper coverage and
servicing of customers and to diligently promote the sale of and stimulate
interest in the Canco Products throughout the Territory.
5.2 Representatives of the Agent. In the event the Agent employs representatives
for the purposes hereof, the Agent shall promptly following the hiring of each
representative send a written notice to the Corporation advising it of the name
and address of such representative, it being understood that notwithstanding
such notice, the Agent shall remain solely responsible for such representatives.
All such representatives shall have to be bound by a trade secrecy and
non-competition agreement reasonably satisfactory to the Corporation. The
Corporation shall not in any way be responsible for the employment, control and
covenants of the employees, representatives and salesmen of the Agent and for
injuries to same or to others through acts or omissions of same.
SECTION 6 - PRODUCTS
6.1 Product specifications. The Agent shall provide to the Corporation on a
timely basis, any Product specifications, within the limits of the Plant's
production capacity, in order to allow the Corporation to manufacture Canco
Products in accordance with the market requirements and the Annual Marketing
Plan. The Corporation shall, in all respects, comply with such specifications,
subject only to the actual limits of the Plant's production capacity, and the
Agent shall ensure that the Agent's and JV's Products also comply, in all
respects, with equivalent specifications in the event the Agent, its Affiliates
or Joint Venture are manufacturing Products which are similar to the Canco
Products.
6.2 Information to be supplied by the Corporation. The Corporation shall supply
to the Agent, on a timely basis, any information required by the Agent to comply
with laws, rules or regulations of any importing country and which are
applicable to the import, use, distribution, marketing or sale of the Canco
Products in such country.
6.3 Exchange of information. The Agent and the Corporation shall openly exchange
all technical information related to the selling of Products, promptly after it
is known, as well as information related to production capacity, supply of
materials and improvement as to quality of Products.
SECTION 7 - TERMS AND CONDITIONS OF SALE
7.1 Terms of purchase. The Corporation shall provide to the Agent a list of
suggested prices per Canco Product and shall have the right to determine terms
and conditions governing the sale of Canco Products as well as policies and
other guidelines relating to credit to be accorded
- 11 -
to customers (hereinafter collectively referred to as "Terms and Policies"), the
whole in accordance and subject to the Annual Marketing Plan. The Terms and
Policies shall be prepared by the Corporation and communicated to the Agent.
Notwithstanding the foregoing, the Corporation agrees to consult with the Agent,
from time to time, with regard to the Terms and Policies. In the event that the
conditions of the market or any particular circumstance requires the
modification of the Terms and Policies, either party may send a written notice
to the other explaining the necessity of such modifications and the parties
shall agree upon such proposed changes and upon the date of coming into effect
of such changes before such changes come into effect.
7.2 Terms and conditions of sale. When negotiating with customers, the Agent
shall offer the Canco Products strictly in accordance with the terms and
conditions provided in the Annual Marketing Plan and the Terms and Policies.
7.3 Invoicing. The Corporation shall make all shipments of Canco Products and
invoice customers in accordance with the Annual Marketing Plan and the Terms and
Policies in effect at the time of the acceptance of the customer's order by the
Corporation.
SECTION 8 - HANDLING AND ACCEPTANCE OF ORDERS
8.1 Acceptance and rejection of orders. Orders obtained by the Agent shall be in
conformity, in all material respects, with the Annual Marketing Plan and the
Terms and Policies and shall provide for a reasonable delay for production and
delivery. The Agent shall forward to the Corporation the original copy of each
order obtained by the Agent immediately following receipt thereof by the Agent.
All said sale orders shall be subject to acceptance or rejection in whole or in
part by the Corporation, however the Corporation may not unreasonably reject the
orders transmitted by the Agent if such orders originate from credit worthy
customers, conform, in all material respects, to the Annual Marketing Plan and
the Terms and Policies and conform to the guiding principles of Section 19
hereof. The Corporation shall respond diligently to all orders transmitted by
the Agent. In the event that the Corporation does not advise the Agent in
writing that it refuses an order within seven (7) days of receipt thereof, the
Corporation shall be deemed to have accepted such order.
8.2 Payments. All payments shall be made at the head office of the Corporation
or at any other place designated in writing by the Corporation.
8.3 Authority of the Agent. The Agent shall have no authority to make any sales,
accept any order or enter into any sales arrangements or into agreements of any
kind or nature on behalf of the Corporation or otherwise bind the Corporation,
unless previously expressly authorized by the Corporation in writing.
- 12 -
SECTION 9 - COST SHARING
9.1 Payment of costs incurred by the Agent. No commission on sales of Canco
Products in the Territory shall be payable to the Agent by the Corporation.
However, the Corporation shall pay such costs incurred by the Agent in
accordance with the provisions of this Section 9 only if an Annual Marketing
Plan is approved for the relevant year. Furthermore, in the event that an Annual
Marketing Plan is not approved and the Annual Marketing Plan of the prior year
is renewed mutatis mutandis, the Corporation shall only pay the costs incurred
by the Agent which are reasonable given the marketing needs and financial state
of the Agent and the Corporation, the whole in accordance with the provisions of
this Section 9.
9.2 First 24 months. For the first two twelve (12) month periods following the
date hereof, the Corporation shall pay to the Agent the Planned Proportion of
the Expenses within thirty (30) days of the Agent furnishing to the Corporation
a reasonably detailed invoice of such Expenses which invoice shall be supported
by the relevant invoices, including those of suppliers of marketing services or
materials, if any.
9.3 After the first 24 months. For the period commencing on the 25th month
following the date hereof and ending December 31, 2000 (the "First Period") and
for each fiscal year of the Corporation thereafter, the Corporation shall pay to
the Agent the Sales Proportion of the Expenses in accordance with the following
provisions:
9.3.1 for the First Period and for each fiscal year of the Corporation
thereafter, the Agent shall submit to the Corporation, with the Annual
Marketing Plan, the projected amount of sales of Canco Products, Agent's
and JV's Products and Licensee's Products in North America. The
Corporation shall pay to the Agent the Projected Sales Proportion of the
Expenses within thirty (30) days of the Agent furnishing to the
Corporation a detailed invoice of such Expenses which invoice shall be
supported by the relevant invoices, including those of suppliers of
marketing services or materials, if any; and
9.3.2 thereafter, within sixty (60) days of the end of the fiscal year in
question, the parties shall calculate the Sales Proportion and the
aggregate amount (the "Amount") which should have been paid to the
Agent for such fiscal year based on the Sales Proportion. Any
difference between the Amount and the aggregate amounts paid to the
Agent during such fiscal year pursuant to subsection 9.3.1 hereof,
shall be paid, if the difference is a positive number, by the
Corporation to the Agent, or, if the difference is a negative number,
by the Agent to the Corporation, within thirty (30) days of the
calculation of the Sales Proportion and the Amount.
9.4 International Sales. In the event that the marketing efforts of the Agent
outside North America should benefit the Corporation, the parties agree to
negotiate in good faith the
- 13 -
compensation that is owing by the Corporation to the Agent for any expenses
associated with the sale and marketing of Canco Products anywhere in the
Territory except North America.
SECTION 10 - ADJUSTMENTS
10.1 Price per Product. Within thirty (30) days following the end of each
quarter of a fiscal year, an average price per square foot of each Similar
Product shall be determined by the parties (the "Average Price per Similar
Product"). The Average Price per Similar Product shall be equal to (i) the total
amount of sales in North America of a Similar Product manufactured by the Plant
and any Agent's Plants, divided by (ii) the total number of square feet of a
Similar Product sold in North America by the Corporation and the Agent and its
Affiliates.
10.2 Adjustments as to price per Product. Within thirty (30) days following the
end of each quarter of a fiscal year, the parties shall determine if any Similar
Products have been manufactured by the Plant and any of the Agent's Plants and
sold in North America during such quarter. If a Similar Product manufactured by
each of the Plant and Agent's Plants is sold in North America at different
average prices per square foot of a Similar Product, any difference in the
average price per square foot of a Similar Product sold in North America and
manufactured by the Plant and the Agent's Plants shall be compensated in the
following manner: (i) the Average Price per Similar Product shall be determined
for each Similar Product pursuant to subsection hereof, (ii) the number of
square feet of a Similar Product sold by the party who has sold such Similar
Product in North America at an actual average price per square foot lower than
the Average Price per Similar Product (the "Compensated Party") shall be
multiplied by the Average Price per Similar Product of such Similar Product, and
(iii) the party having sold such Similar Product in North America at an actual
average price per square foot higher than the Average Price per Similar Product
shall pay to the Compensated Party, within thirty (30) days of the thirty (30)
day delay mentioned above, an amount equal to the product obtained in (ii) less
the total amount of sales in North America of such Similar Product manufactured
by the Compensated Party.
10.3 Bad Debts Adjustments. Within thirty (30) days following the end of each
fiscal year, the parties shall determine the Corporation's Proportionate Share,
the Agent's Proportionate Share, the Corporation's Bad Debts, the Agent's Bad
Debts and the Total Bad Debts. In the event that the Corporation's Proportionate
Share of the Total Bad Debts is an amount which is greater than the
Corporation's Bad Debts, the Corporation shall pay to the Agent the difference
between such amounts and in the event that the Agent's Proportionate Share of
the Total Bad Debts is an amount which is greater than the Agent's Bad Debts,
the Agent shall pay to the Corporation the difference between such amounts. In
the event that following the above-mentioned determination by the parties
pursuant this subsection, any account or note receivable included in the Total
Bad Debts is collected by a party, the parties agree that if the Corporation is
the party who has collected such account receivable, the Corporation shall pay
to the Agent the Agent's Proportionate Share of the amount collected and if the
Agent is the party who has collected such account receivable, the Agent shall
pay to the Corporation the Corporation's Proportionate Share of the amount
collected. All payments by one party to the other party pursuant to this
subsection
- 14 -
shall be made within thirty (30) days of the of the end of the above thirty (30)
day period or within thirty (30) days of the receipt by a party of the amount of
an account receivable included in the Total Bad Debts.
10.4 Effect of adjustments. The payment of any adjustment amount by the Agent to
the Corporation pursuant to subsections 10.2 or 10.3 shall not be construed as a
remedy to a default by the Agent of its obligations pursuant to subsection 4.3.
10.5 Sales in North America by Joint Ventures or Licensees. If any Joint
Ventures or Licensees sells any Products in North America, the parties agree to
make the necessary adjustments to Section 10 to take into consideration such
sales and to make the necessary modifications to subsection 11.2 to provide for
the disclosure of relevant information concerning such Licensees to effect the
adjustments provided in this Section 10.
10.6 Sales outside North America. If either party or any of their Affiliates or
if any Joint Ventures sells any Products outside North America, the parties
agree to make the necessary adjustments to Section 10 to take into consideration
such sales.
SECTION 11 - RIGHTS OF THE CORPORATION
11.1 Right to visit its customers. The Corporation shall have the right to visit
its customers and communicate with them directly subject to the Corporation
first requesting the Agent to make the necessary arrangements for such visit or
communication and the right of the Agent to join the Corporation during such
visit or to obtain copies of any written communication. All visits with
customers shall be subject to the Agent's approval, which shall not be
unreasonably withheld.
11.2 Right to information. The Corporation shall have the right, during regular
business hours and subject to 24 hours prior notice, to consult, audit (and make
copies of) the Agent's books, records and documents relating to the sale of
Canco Products and Agent's and JV's Products and related matters such as market
studies, customer information and Expenses. Notwithstanding the provisions of
Section 15 hereof, in the event that a Licensee sells any Products in North
America, the Corporation authorizes the Agent to disclose its sales figures to
such Licensee provided that i) such disclosure is required for the Agent to
respect its obligations as sales and/or marketing agent of such Licensee and ii)
such Licensee has granted a reciprocal authorization to the Agent to make
comparable disclosures to the Corporation. However, in the event that such
reciprocal authorization is not granted, the Corporation shall name an
independent auditor, acceptable to the Agent acting reasonably, to consult,
audit (and make copies of) the Agent's books, records and documents relating to
the sale of Licensee's Products. Such independent auditor shall be bound by
confidentiality obligations similar to the provisions of Section 15 hereof.
- 15 -
SECTION 12 - COMPLAINTS BY CUSTOMERS
12.1 Complaints by customers. The Agent shall immediately inform the Corporation
of any observations or complaints received from customers in respect of the
Canco Products. The parties hereto shall deal promptly and properly with such
complaints. The Corporation shall be solely responsible for any claims made by
its customers as to the failure of the Canco Products to conform to any warranty
as provided to the customer by the Corporation, and the Agent has no authority
to bind in any way the Corporation, unless it has received a specific written
authorization to that effect.
SECTION 13 - FORCE MAJEURE
13.1 Definition of Force Majeure. The obligations of either party hereunder
shall be suspended during the time and to the extent that such party is
prevented from complying therewith due to any event or circumstance beyond the
control and without the fault or negligence of that party so affected (which
circumstance is hereinafter referred to as "Force Majeure") including but not
limited to inevitable accidents, perils of navigation, floods, fire, storms,
epidemics, acts of God, earthquake, explosion, hostilities, civil commotion, war
(declared or undeclared), orders, requisitions, regulations or acts of any
government or governmental authority, whether de jure or de facto or any
official purporting to act under the authority of any such government,
illegality arising from domestic or foreign laws or regulations, insurrections,
failure or slowdown of public utilities or common carriers, inability to procure
raw materials or other circumstances or conditions of a similar nature,
quarantine or custom restrictions, strikes, lockouts or any other labour
difficulty from staff or other members of personnel of a party and/or its
suppliers of goods and/or raw materials.
13.2 Notice. As soon as possible after being affected by a Force Majeure, the
party so affected shall furnish to the other party all particulars of the Force
Majeure and the manner in which its performance is thereby prevented or delayed.
The party whose obligations hereunder have been suspended shall promptly and
diligently pursue appropriate action to enable it to perform such obligations,
except that the parties shall not be obligated to settle any strike, lockout or
other labour difficulty on terms contrary to their wishes.
13.3 Termination. In the event that any Force Majeure cannot be removed,
overcome or abated within twelve (12) months (or such other period as the
parties jointly shall determine) from the date the party affected first became
affected, then either party may, at the expiration of such period by notice to
the other party terminate this Agreement.
13.4 Corporation affected by Force Majeure. In the event that the Corporation is
affected by a Force Majeure and that the manufacturing of Canco Products is
temporarily suspended, the Agent shall use its commercially reasonable best
efforts to supply the Canco Products which it shall temporarily manufacture or
have manufactured for the Corporation's customers in order to avoid any
disruption of supply to the Corporation's customers. Such
- 16 -
manufacturing and supplying of Canco Products shall immediately cease when the
Force Majeure is removed, overcome or abated.
SECTION 14 - RESTRICTIVE COVENANTS
14.1 Selling of Products. In consideration of the obligations herein undertaken
by the Agent and to assure the Agent's ability to carry out those obligations,
the Agent, its Affiliates and Joint Ventures shall not, anywhere in North
America, market, promote, advertise, sell, distribute or merchandise, directly
or indirectly, products manufactured outside North America and which are the
same or similar to the Canco Products, and the Agent and its Affiliates and
Joint Ventures hereby further agree that they shall include in any license or
sub-license granted to any Person a provision prohibiting such licensee or
sub-licensee (excluding the Corporation) from marketing, promoting, advertising,
selling, distributing or merchandising anywhere in North America, products
manufactured outside North America and which are the same or similar to the
Canco Products (and enforce such provision in the event of any breach thereof by
any such licensee or sub-licensee, to the extent reasonable), except if:
14.1.1 such marketing, promotion, advertising, sale, distribution or
merchandising is directly effected through the Agent, acting as agent or
principal; and
14.1.2 a customer of the Agent, its Affiliates or Joint Ventures or such
licensee or sub- licensee has expressly requested that such products be
manufactured by a specific plant situated outside North America, after
such customer has been informed by the Agent, its Affiliates or Joint
Ventures or such licensee or sub-licensee that the Corporation is an
authorized supplier of such products in North America, and the
Corporation has a reciprocal right to market, promote, advertise, sell,
distribute and merchandise Canco Products in such territory or
territories outside North America from where the Person who owns such
specific plant is authorized to market, promote, advertise, sell,
distribute and merchandise products which are the same or similar to the
Canco Products.
Notwithstanding the foregoing, it is expressly agreed and understood that
the Agent, its Affiliates and Joint Ventures and any licensee or sub-licensee of
the Agent or its Affiliates shall be free to engage in any business activities
they desire which do not involve products which are the same or similar to the
Canco Products.
SECTION 15 - CONFIDENTIALITY PROVISIONS
15.1 Confidential Information. Each party hereby acknowledges that it may
receive Confidential Information from the other party (the "Disclosing Party").
Each party hereby acknowledges, accepts and agrees that:
- 17 -
15.1.1 the Confidential Information designated as such in the manner provided
for in this Section is non-public and confidential and shall at all
times remain the property of the Disclosing Party;
15.1.2 the disclosure by the Disclosing Party of the Confidential Information
to the other party (the "Receiving Party") is for the sole purpose of
enabling it to carry out its obligations under the terms of this
Agreement; and
15.1.3 the Receiving Party shall not assert, directly or indirectly, any right
with respect to the Confidential Information which may impair or be
adverse to the Disclosing Party's ownership thereof.
15.2 Obligations of parties. Each party shall keep the Confidential Information,
and the fact that the Confidential Information has been provided, confidential
at all times (regardless of the extent or duration of the relationship of the
parties and regardless of whether such Confidential Information was disclosed
before or after the date of this Agreement) and shall not disclose such
Confidential Information, in whole or in part, to any person other than to its
agents, employees and other authorized representatives (collectively herein
referred to as the "Representatives") who need to know such information in
connection with the performance of its obligations under the terms of this
Agreement, without the prior written consent of the Disclosing Party. Each party
shall inform its Representatives of the confidential nature of the Confidential
Information and shall require such Representatives to keep such information
confidential by legally binding means. Each party shall be fully responsible for
any breach of this Agreement by its Representatives and shall, at its expense,
promptly take appropriate legal action to stop or minimize improper disclosures
by any of its employees or ex-employees or other Representatives. Each party
shall exercise careful judgment to minimize the number of its Representatives
who have access to the other party's Confidential Information and to limit them
to individuals reasonably known to be trustworthy and of sound judgment. Neither
party shall use the other's Confidential Information except in accordance with
the terms of this Agreement, and each party shall take all practicable steps to
cause their Representatives to do the same.
15.3 Property Rights In Confidential Information. Any Confidential Information
disclosed by the Disclosing Party shall remain the sole and exclusive property
of the Disclosing Party.
15.4 Transfer of Confidential Information. All Confidential Information
furnished hereunder by either party to the other, whether orally, in writing or
by demonstration or otherwise, shall be maintained as confidential unless the
Disclosing Party notifies the Receiving Party to the contrary in writing.
15.5 Proprietary Information. Neither party hereto shall in any event disclose
any of its proprietary information which may reveal incidentally or otherwise
Confidential Information originating with the Disclosing Party.
- 18 -
15.6 Breach of Confidentiality. In the event of a material breach of the
undertakings of either party under this Section 15, the parties agree that money
damages may be inadequate and the Disclosing Party shall be entitled to seek
injunctive relief and specific performance. Such remedy shall not be deemed to
be the exclusive remedy for any such breach but shall be in addition to all
other remedies available at law. The Disclosing Party shall be entitled to
reasonable legal fees (including reasonable attorney's fees and expenses) and
other costs reasonably incurred to remedy any and all material breaches by the
Receiving Party of this Agreement.
SECTION 16 - INSURANCE AND INDEMNIFICATION
16.1 Insurance. The Corporation shall maintain, commencing on the date that it
begins to sell Canco Products and throughout the remainder of the term of this
Agreement, comprehensive general liability insurance against claims based upon
product liability for the Canco Products in an amount to be determined by the
parties. Such insurance shall be written with a responsible and reputable
insurer. Such policy or policies shall be in force on the date that the Plant
starts manufacturing Canco Products and the Agent shall be named as additional
insured as its interests may appear with respect to all claims for which an
indemnification is being given pursuant to subsection 16.2 hereof. Such
endorsement shall stipulate that the required coverages will not be reduced or
cancelled without thirty (30) days' prior written notice having been provided to
the Agent.
16.2 Indemnification. The Corporation agrees to indemnify the Agent, in its
capacity as agent, and save and hold it harmless from and against any debts,
liabilities, claims, actions, causes of action, suits, damages, losses, costs
and expenses, including reasonable attorneys' fees and expenses which Agent is
or may become liable for or be compelled to pay as a result or by reason of any
defects, failures or malfunctions of any of the Canco Products, except those
resulting from or arising out of or attributed to (i) the improper conduct,
operations or performance of the Agent, including improper storage, care or
handling or (ii) any warranty given by the Agent in connection with the Canco
Products beyond the warranty provided for by the Corporation in the Terms and
Policies.
SECTION 17 - FAIRNESS COMMITTEE
17.1 Responsibilities. The Fairness Committee will be responsible for the
settling of all Disputes, subject to Section 18 hereof, and all decisions of the
Fairness Committee shall be made unanimously by its members.
SECTION 18 - DISPUTES
18.1 Disputes. Any dispute or controversy (the "Dispute") between the parties
hereto relating only to any matter arising out of or connected with Sections 4,9
or 10 of this Agreement shall be settled by the Fairness Committee, in
accordance with Section 19 hereof. In the event that the Fairness Committee
fails to come to a decision within ten (10) days of its first meeting,
- 19 -
then the Dispute shall be referred to and definitively settled by arbitration in
accordance with the arbitration provisions set forth in subsection 18.2 hereof.
In rendering its decision, the arbitrator(s) shall adhere to and be guided by
the principles set forth in Section 19 hereof.
18.2 Arbitration. All disputes, controversies or claims arising out of or
relating to this Agreement, or the breach, termination or invalidity thereof,
other than a Dispute, shall be definitively settled and dealt with using the
rules of conciliation and arbitration of the International Chamber of Commerce,
by one or more arbitrators appointed in accordance with said rules, and to the
exclusion of any courts, except for injunctive relief and any provisional
remedy, including seizure before judgment, which may be obtained from any court
or tribunal having jurisdiction, and until a final decision is rendered, this
Agreement shall continue in effect as if the dispute, controversy or claim did
not exist. Any arbitration proceeding required pursuant to the terms hereof
shall take place in Montreal, Quebec and shall be conducted in both the English
and French language. The cost of the arbitration shall be borne in the manner
provided for in the arbitration award.
SECTION 19 - GUIDING PRINCIPLES
19.1 Guiding principles. In executing their obligations and responsibilities
hereunder, the parties shall apply and the Fairness Committee shall adhere to
the following principles:
19.1.1 the Proportionate allocation by the Agent of manufacturing contracts for
Products between the Plant and the Agent's and JV's Plants situated in
North America in order that the Plant never operates at a production
capacity lower than that of any Agent's and JV's Plants situated in
North America;
19.1.2 the efficient, equitable and Proportionate allocation by the Agent of
manufacturing contracts for Products having a similar profit margin
between the Plant and the Agent's and JV's Plants situated in North
America;
19.1.3 the carrying out of the marketing and promotion of the Products
manufactured by the Plant and the Agent's and JV's Plants in a
cooperative, rather than competitive manner;
19.1.4 promoting fair business relations between the Agent and the Corporation;
19.1.5 the recognition that the customer has the final say and that the needs
of the customer are paramount (in the event that a customer has a
preference between the Corporation and the Agent, its Affiliates or
Joint Ventures, the parties will comply with such preference);
19.1.6 the equitable application of all credit policies and credit risks
regarding the sale of Products between the Agent, its Affiliates and
Joint Ventures and the Corporation;
19.1.7 the efficient management of resources;
- 20 -
19.1.8 the continual and complete exchange of information and data about the
customers of the Corporation and the Agent, its Affiliates and Joint
Ventures;
19.1.9 the sharing of customer lists, customer data and sales statistics
between the Agent and the Corporation;
19.1.10 the sharing of all Expenses in accordance with the provisions of this
Agreement.
SECTION 20 - TERM
20.1 Initial term. The term of this Agreement shall be for six (6) years from
the date of execution hereof. This Agreement shall be renewed on the same terms
and conditions for additional six (6) year periods, unless one party gives
written notice to the other of its intention to terminate this Agreement at
least twelve (12) months prior to the expiration of the term hereof or of any
renewal period hereof.
SECTION 21 - TERMINATION
21.1 Breach of Material Provisions. In the event of a breach by a party of any
of the material provisions of this Agreement (the "Defaulting Party"), the
aggrieved party shall have the right to terminate this Agreement. Such right of
termination shall be exercised by the aggrieved party giving written notice to
the Defaulting Party specifying the manner in which the Defaulting Party has
breached the Agreement and stating that the party giving notice elects to
terminate this Agreement as of a date not less than thirty (30) days subsequent
to the date of such notice unless the Defaulting Party shall have cured such
breach within the foregoing period. In the event the Defaulting Party fails to
cure such breach within the said notice period, this Agreement shall terminate
on the date specified in such notice as hereinabove provided, without prejudice
to any other rights of the non-defaulting party to seek other remedies or take
measures that may be otherwise available to it at law.
21.2 Termination without notice. In addition to the rights of the parties set
forth in subsection 21.1 hereof, each party shall have the right to terminate
this Agreement without notice or demand, upon the bankruptcy of the other party,
the occurrence of the insolvency of the other party, the filing by the other
party of a petition in bankruptcy or the filing of such petition against the
other party, the making of a proposal by the other party to its creditors or it
otherwise taking advantage of any insolvency legislation, the making by the
other party of an assignment for the benefit of its creditors, or the
application by the other party or any of its creditors for the appointment of a
trustee, custodian, receiver or any other person with like powers.
21.3 Corporation's right to terminate. In addition to the rights of the
Corporation set forth in this Agreement, the Corporation shall have the right to
terminate this Agreement upon simple notice of termination, if the Agent ceases
to hold any shares in the Corporation, in which case the termination of this
Agreement will be effective upon receipt or service of such notice.
- 21 -
21.4 Parties liability for termination or non-renewal. In the event of
termination of this Agreement other than pursuant to subsection 21.1, or the
non-renewal at the end of the stated term or any renewal thereof, the parties
shall not be liable to each other because of such termination or non-renewal
hereof for compensation, reimbursement or damages on account of the loss of
prospective profits on anticipated sales, or on account of expenditures,
investments, leases or commitments in connection with the business or goodwill
of the other party as contemplated herein, or for any other reason whatsoever
provided that such termination or non-renewal is effected in accordance with the
provisions of this Agreement.
SECTION 22 - EFFECT OF TERMINATION
22.1 Effect of termination. Upon termination of this Agreement for any reason
whatsoever or the expiration of its term:
22.1.1 the Agent will immediately cease to represent the Corporation;
22.1.2 all amounts owing by one party to the other pursuant to this Agreement
will become due and payable as provided in this Agreement
notwithstanding its termination or the expiration of its term;
22.1.3 the Agent will immediately deliver to the Corporation all information in
its possession concerning the marketing and sale of Canco Products,
including, without limitation, all information concerning sales of Canco
Products, all advertising materials, customer lists, prices, active
quotations and market studies;
22.1.4 the Corporation will immediately deliver to the Agent all information in
its possession concerning the marketing and sale of Agent's and JV's
Products, including, without limitation, all information concerning
sales of Agent's and JV's Products, all advertising materials, customer
lists, prices, active quotations and market studies;
22.1.5 the Agent will promptly return to the Corporation all advertising
material and samples which have been supplied to it by the Corporation
and are in the Agent's possession.
22.2 Surviving provisions. Termination of this Agreement for any reason
whatsoever or the expiration of the term of this Agreement shall not release any
party from any of its obligations which remain unfulfilled at such time or
release any party from those obligations which survive such termination or
expiration, including without limitation the obligations set forth in Sections
14 and 15.
SECTION 23 - PROHIBITION OF ASSIGNMENT
23.1 Assignment. The parties shall not assign nor transfer any of their rights
or obligations under this Agreement without the prior written consent of the
other party. However,
- 22 -
the Corporation may hypothecate, assign or transfer its rights or obligations
under this Agreement to its lenders. Subject to the foregoing, this Agreement
shall enure to the benefit of and be binding upon each party hereto and its
respective successors and permitted assigns.
SECTION 24 - NOTICES
24.1 Notices. All notices, requests, demands and other communications hereunder
shall be given in writing and shall be given by telecopier, or delivered by
hand, to the other party at the following addresses:
if to the Corporation: LAMINES CTEK INC.
000 xx xx Xxxxxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Chairman and President
Telecopier: (000) 000-0000
if to the Agent: COMPOSITECH LTD.
000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx
00000-0000, X.X.X.
Attention: the President
Telecopier: (000) 000-0000
with a copy in
all cases to: INDUSTRIES DEVMA INC.
000, xx xx Xxxxxxxxxxx Xxxxxx Xxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx X0X 0X0
Attention: President
Telecopier: (000) 000-0000
- 23 -
SOCIETE INNOVATECH DU GRAND MONTREAL
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: President and Chief Executive Officer
Telecopier: (000) 000-0000
FONDS DE SOLIDARITE DES TRAVAILLEURS DU
QUEBEC (F.T.Q)
0000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Vice President, Legal Affairs
Telecopier: (000) 000-0000
with a copy to: Senior Vice President, Investments
Telecopier: (000) 000-0000
FONDS REGIONAL DE SOLIDARITE ILE DE MONTREAL,
limited partnership
000, Xx-Xxxxxxx Xxxxxx Xxxx
0xx Xxxxx
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Managing Director
Telecopier: (000) 000-0000
- 24 -
with a copy in
all cases to: XXXXXXX, LEISURE, XXXXXX & IRVINE
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx
00000
Attention: Xxxxxx X. Xxx, Esq.
Telecopier: (000) 000-0000
with a copy in
all cases to: XXXXXXXX XXXXXXXXXX
0000 Xxxx-Xxxxxxxx Blvd. West
Suite 1400
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Xxxxx Xxxxx
Telecopier: (000) 000-0000
or at such other address as each party may have
previously indicated to the other party in writing in
conformity with the foregoing. Any such notice, request,
demand or other communication shall be deemed to have
been received on the date of delivery if delivered by
hand, or the next business day immediately following the
date of transmission if sent by telecopier. The original
copy of any notice sent by telecopier shall be forwarded
to the other party by registered mail, receipt return
requested.
SECTION 25 - MISCELLANEOUS PROVISIONS
25.1 Further documents. Each party upon the request of the other, shall do,
execute, acknowledge and deliver or cause to be done, executed, acknowledged or
delivered all such further acts, deeds, documents, assignments, transfers,
conveyances, powers of attorney and assurances as may be reasonably necessary or
desirable to effect complete consummation of the transactions contemplated by
this Agreement.
25.2 Headings. The division of this Agreement into Sections, subsections and
other subdivisions, and the insertion of headings are for convenience of
reference only and shall not affect or be utilized in the construction or
interpretation of this Agreement.
25.3 Currency and conversion rate. All payments contemplated herein shall be
effected in the currency of the United States of America, at the address
designated by either party from time to time. For the purpose of calculating any
amount of sales or accounts receivable, the
- 25 -
amounts which are not in United States dollars will be converted into United
States dollars based on the average monthly closing rate for the period of sales
or of the accounts receivable as reported by the Chase Manhattan Bank, for the
conversion of such foreign currency into United States dollars.
25.4 Interest on due amounts. If any amounts owed by one party to the other are
overdue, the party owing such amounts will, in addition to paying the unpaid
amounts, pay to the other party interest on these unpaid amounts at an annual
rate equal to two percent (2 %) over the Prime Rate, calculated daily from their
due date until full payment.
25.5 Waiver of default. The failure of any party at any time to take action
against the other party, or the failure of the other party to terminate this
Agreement as provided herein shall not affect either party's right to require
the full performance of this Agreement at any time thereafter, and a waiver by
either party of a breach of any provision of this Agreement shall not constitute
a waiver of any subsequent breach thereof nor nullify the effectiveness of such
provisions or the right of such party to demand redress for their respective
losses, damages and prejudices.
25.6 Entire Agreement. This Agreement together with any other instruments to be
delivered pursuant hereto, constitute the entire agreement among the parties
pertaining to the subject matter hereof and supersede all prior agreements,
understandings, negotiations, and discussions, whether oral or written, among
any or all of the parties.
25.7 Separate entities. The parties hereto acknowledge that the Agent is an
independent contractor in virtue of the terms and conditions of this Agreement
and this Agreement shall not be construed so as to constitute the Agent and the
Corporation partners or joint venturers or so as to create any other form of
legal association which imposes liability upon either party for the acts or
omissions of the other party.
25.8 Severability. Any Section, subsection or other subdivision of this
Agreement or any other provision of this Agreement which is, or becomes,
illegal, invalid or unenforceable shall be severed therefrom and shall be
ineffective to the extent of such illegality, invalidity or unenforceability and
shall not affect or impair the remaining provisions hereof, which provisions
shall be severed from an illegal or unenforceable Section, subsection or other
subdivision of this Agreement or any other provisions of this Agreement.
25.9 Amendments. No amendment of this Agreement shall be binding unless
otherwise expressly provided in an instrument duly executed by the parties.
25.10 Delays. When calculating the period of time within which or following
which any act is to be done or step taken pursuant to this Agreement, the day
which is the reference day in calculating such period shall be excluded. If the
day on which such delay expires is not a business day, then the delay shall be
extended to the next succeeding business day.
- 26 -
25.11 Gender. Any reference in this Agreement to any gender shall include both
genders and the neutral, and words used herein importing the singular number
only shall include the plural and vice versa.
25.12 Preamble. The preamble hereof shall form an integral part of this
Agreement.
25.13 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same document.
25.14 Governing Law. This Agreement shall be governed by and interpreted and
enforced in accordance with the laws of the Province of Quebec and the laws of
Canada applicable therein.
25.15 Language. The parties hereto state their express wish that this Agreement
as well as all documentation contemplated hereby or pertaining hereto or to be
executed in connection herewith be drawn up in the English language; les parties
expriment leur xxxxx explicite a l'effet que cette convention de meme que tous
documents envisages par les presentes ou y ayant trait ou qui seront signes
relativement aux presentes soient rediges en anglais.
IN WITNESS WHEREOF, the parties have signed at the place and on the date
first hereinabove mentioned.
COMPOSITECH LTD. LAMINES CTEK INC.
Per: _________________________ Per: _________________________
Xxxxx Xxxxxx Xxxxx Xxxxxx
