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EXHIBIT 10.40
SALES AGREEMENT
This Agreement is entered into and effective May 5, 2000 (the "Effective
Date") between Xxxxx Resources, Inc. ("Xxxxx"), a Kansas corporation located in
Lenexa, Kansas and Amarillo Biosciences, Inc. ("ABI"), a Texas corporation
located in Amarillo, Texas.
RECITALS
WHEREAS, ABI offers to market Anhydrous Crystalline Maltose (ACM),
("Product") for sale into the nutritional supplement market ("Market") in North
America ("Territory");
WHEREAS, ABI has expressed interest in marketing Product through Xxxxx
on an exclusive basis and;
WHEREAS, ABI and Xxxxx wish to formalize an agent agreement.
NOW, THEREFORE, in exchange of the consideration set forth herein, the
receipt and sufficiency of which is hereby acknowledged, the parties agree to
work together as follows:
1. APPOINTMENT: ABI hereby appoints Xxxxx as its exclusive sales
representative in the capacity of broker to sell
"Product" into the "Market."
2. MARKET: "Market" is defined as all companies doing business in
the nutritional supplement, nutraceutical, dietary
supplement, and sports nutrition industries.
3. PRODUCT: "Product" is defined as Anhydrous Crystalline Maltose.
4. TERRITORY: The "Territory" shall be defined as North America which
shall include USA, Canada and Mexico. The "Territory"
may be expanded by mutual agreement of both parties.
5. TERM: The term of this Agreement shall be for a period of
three years from the Effective Date and shall continue
thereafter in two (2) year increments until terminated
by either party upon giving to the other party at least
(90) days written notice before ending of period. If
terminated by ABI, ABI will pay to Xxxxx, commission on
all existing Products customers for a period of one year
from termination of this agreement.
6. AUTHORITY AND CAPACITY: Xxxxx is not an employee of ABI and agrees
to conduct all of its business in its own
name as an independent contractor except
where Xxxxx'x name is listed as an agent for
ABI.
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7. BROKER: As a Broker, Xxxxx will solicit and secure the
customer's order. ABI will ship Product directly to and
invoice the customer and ABI will pay Xxxxx a commission
on each sale. In this capacity, Xxxxx will only offer
pricing and terms previously agreed to with ABI on a
customer-by-customer basis. Xxxxx shall secure orders
and forward them to ABI on a timely basis.
8. XXXXX: Xxxxx shall not broker any other crystalline maltose
during the term of this Agreement.
9. COMMISSIONS: ABI will pay a commission fee of ***% of all
sales of Product up to the **** dollars ($****)
annually and ***% on annual amounts in excess of
*** dollars in the Territory to Xxxxxx. Sales
are computed as net sales FOB ABI's warehouse.
10. PAYMENTS OF COMMISSION: ABI shall pay commissions to Xxxxx within 30
days of receipt of ABI's payment in full for
the invoiced Product.
11. SPECIAL PAYMENTS: ABI may, at times, pay to Xxxxx special fees to
reimburse mutually agreed upon expenses and
fees.
12. SPECIAL AGREEMENTS: Agreements to variations from established
standards such as pricing, commissions, and
other special considerations on a customer by
customer basis shall be in writing and deemed as
becoming part of this agreement on the date the
special situation is agreed to by both parties.
13. PROMOTIONAL MATERIALS: ABI will prepare product literature and
literature about ABI and supply Xxxxx with
these materials. Xxxxx and ABI agree to
jointly develop all the applications and
market development literature relating to
the Product.
14. TRADE SHOWS: Xxxxx and ABI will at times agree to exhibit at
trade shows in the Market. ABI and Xxxxx will
agree to cost sharing on a show-by-show basis.
15. ENTIRETY: This Agreement contains the entire agreement of the
parties and there are no other contracts, agreements or
understandings, oral or written existing between them
except as contained in this Agreement.
16. ASSIGNABILITY: Neither party may assign the Agreement without
the prior written consent of the other party.
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17. SUCCESSORS AND ASSIGNS: This Agreement shall be binding upon and
inure to the benefit of the parties hereto
and respective successors and assigns.
18. PROPRIETARY RIGHTS: Xxxxx agrees to assign to ABI all rights to
patents, trademarks, and copyrights related to
the business of ABI that are discovered or
created during the performance of sales and
marketing representation of ABI. Xxxxx also
agrees to sign applications or other documents
as ABI may require for the documentation,
establishment and protection of its ownership of
such ideas, trademarks, patents, copyrights or
trade secrets, either during the term of this
contract or thereafter.
19. CONFIDENTIALITY COVENANT: Xxxxx recognizes the highly confidential
nature of ABI's business, products, customer
lists, patents and trade secrets. During the
term of this Agreement and for 3 years
thereafter, Xxxxx will not directly,
indirectly, or otherwise use, Communicate,
disclose, reproduce, lecture, publish or
otherwise appropriate any confidential or
proprietary information regarding ABI's
business, products, customers, patent or
trade secrets without the prior written
consent of an officer of ABI.
20. SURVIVAL: The confidentiality Covenant and proprietary interest
Covenant shall survive the termination of this
Agreement.
21. CHOICE OF LAW: The provisions of this Agreement shall be
governed by and construed in accordance with the
laws of the State of Kansas.
Please acknowledge acceptance of the above terms by having a duly
authorized officer of your company sign below.
AMARILLO BIOSCIENCES, INC.
By: Date:
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Xxxxxx X. Xxxxxxx, DVM, PhD
President and CEO
XXXXX RESOURCES, INC.
By: Date:
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Xxxxx Xxxxx, President
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