Exhibit 10.4
EXCLUSIVE DISTRIBUTION AND FULFILLMENT AGREEMENT
BETWEEN
AMERICAN AGCO, INC. AND PETPLANET. COM, INC.
THIS AGREEMENT is made and entered into this 10th day of September 1999
(the "Effective Date"), by and between XXXXXXXXX.XXX, INC., a Delaware
corporation ("PETPLANET"), and American AGCO, Inc. a Minnesota corporation
("AGCO").
WHEREAS, PETPLANET is an internet retail company that sells pet food,
pet supplies and pet-related products and services to its customers over the
Internet;
WHEREAS, AGCO owns and operates a pet supply distributorship, has or
will immediately build the capability to handle the pick, pack and ship
requirements for pet food, pet supplies and pet-related product orders, and
wishes to participate in internet commerce; and
WHEREAS, PETPLANET wishes to engage AGCO for the purpose of fulfilling
its orders for pet food, pet supplies and pet-related products and otherwise
contribute to the development of e-commerce on the PETPLANET on-line pet channel
network and AGCO wishes to act in that capacity, subject to the terms and
conditions set forth below.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
herein contained, the parties do agree as follows:
ARTICLE I. TERM OF AGREEMENT
1.1. Term. The term of this Agreement (the "Term") shall commence upon
execution of this Agreement and shall remain in full force and effect for a term
of five (5) years. This Agreement may be renewed for a subsequent five (5) year
period upon the mutual written agreement of the Parties. If either Party desires
to extend the Term of this Agreement for the additional five (5) year period,
that Party shall give notice of election to renew at least ninety (90) days
prior to the then-current expiration date and the Parties shall thereafter
commence negotiations regarding the terms and conditions of the renewed
Agreement.
ARTICLE II. SERVICES
2.1 Services. Each party shall perform the services (the "Services")
set forth in Exhibit "A," along with such other related services as may be
reasonably necessary from time to time to further the intent of this Agreement,
all in accordance with the terms and conditions hereof. Each party shall
diligently and to the best of their ability perform the Services and shall
dedicate their time and resources to such performance as may be commensurate
with such Services.
ARTICLE III. EXCLUSIVITY
3.1 Exclusive Agreement.
a. AGCO acknowledges and agrees that during the term of this Agreement, and any
extended or renewed term thereof, AGCO may not distribute for, contract with or
otherwise be engaged in fulfilling, or assisting in the fulfillment of, pet
product distribution for competing domestic or international third parties, or
their employees, agents, representatives, directors, officers and partners, who
are primarily engaged in the on-line pet food, pet services or pet- related
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products industry, in any capacity, or who maintain, support or are affiliated
with any individual or entity operating or intending to operate on the Internet
in the pet space or pet category or any other pet food, pet service or pet
product Internet provider, electronic retailer or retailer conducting themselves
via a similar medium, or whom are otherwise in direct competition with PETPLANET
as an Internet e-commerce provider, without the express written consent of
PETPLANET. Violation of this provision shall be cause for immediate termination
of this Agreement. Notwithstanding the foregoing, AGCO reserves the right to
maintain its own website and to respond directly to customer requests and
purchase orders to the extent AGCO is not engaged in meeting direct fulfillment
activities of Internet retailers as set forth above.
b. PETPLANET acknowledges and agrees that during the term hereof,
PETPLANET may not contract with or otherwise be engaged to perform services for
third parties engaged in the non-food pet products distribution business,
without the express written consent of AGCO. Upon execution of this Agreement,
AGCO and PETPLANET shall mutually designate and negotiate with a carrier or
shipper for delivery of the pet products contemplated under this Agreement.
Notwithstanding the foregoing, in the event that AGCO and PETPLANET are unable
to maintain product transportation costs in specific geographical regions at
prices reasonably equal to or less than PETPLANET's competitors in those
specific geographical regions, PETPLANET may undertake to negotiate, establish
and designate a delivery and transportation company through which AGCO shall
arrange for transportation of its pet products into such geographical regions;
provided, however, that such use of another delivery and transportation company
does not violate any exclusive agreement between AGCO and a third party shipper
which PETPLANET has previously approved.
ARTICLE IV. ORDER FULFILLMENT REQUIREMENTS
4.1 General. During the term of this Agreement, AGCO shall (a) fulfill
PETPLANET customer's orders for pet food, pet supplies and pet-related products;
(b) direct order fulfillment to customers; (c) provide merchandising advice and
assistance as needed; and (d) organize and arrange for meetings between
PETPLANET and key vendors.
4.2 Order Transmittal. PETPLANET shall transmit orders on a regular
basis to AGCO in accordance with PETPLANET'S electronic file transfer system.
4.3 Product Selection and Data Requirements. AGCO will offer all
cataloged and inventoried pet food, pet supplies and pet-related products
currently stocked by AGCO or otherwise readily available through AGCO product
channels. AGCO will also provide support to PETPLANET in its efforts to (a)
develop the product data base elements required for the web site in the form of
data available from AGCO's own data base; (b) obtain graphics and product
feature/benefit information from the manufacturers for product presentations;
(c) use its best efforts to arrange group or individual meetings with key
vendors for the purpose of encouraging them to support PETPLANET in the form of
payments for product presentations and co-op advertising programs; and (d)
identify all initial product offerings on the site as well as consult with, and
seek the advice of, PETPLANET prior to release of all future product offerings.
4.4 Inventory. AGCO shall use its best efforts to maintain and
establish sufficient inventory of products from major vendors of pet food, pet
supplies and pet-related products for PETPLANET. AGCO will keep PETPLANET
abreast of any product offerings on the site that may be currently out of stock
in order for PETPLANET to make the necessary adjustments to the site. AGCO
agrees to maintain sufficient inventory levels of product offerings on the
website to achieve a 94% of better in-stock fulfillment rate. For any items that
AGCO does not currently have in stock, AGCO agrees to use its best efforts to
expeditiously obtain the desired product from the product source.
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4.5 Product Inventory Carried at the Request of PETPLANET. AGCO
currently maintains, and agrees to continue to maintain during the term of this
Agreement, the major pet food lines and related products that AGCO is able to
obtain contractually from manufacturers of pet food, pet supplies and
pet-related products, based on the wholesale distribution policies of said
manufacturers. AGCO reserves the right to discontinue or change its products
sold and inventory requirements upon ninety (90) days written notice to
PETPLANET. In the event that PETPLANET wishes to sell certain minor or unusual
product line(s) not carried by AGCO, AGCO shall maintain, monitor, reorder, and
fulfill orders of same for PETPLANET, for a charge equal to landed costs.
PETPLANET will negotiate pricing and payment terms with the manufacturers of
such minor or unusual product(s).
4.6 Order Fulfillment and Delivery. Orders will be packed and shipped
no later than 24 hours following receipt of orders by AGCO except that shipments
will not be made on Saturdays, Sundays, and holidays. Orders shall be shipped
using PETPLANET's master billing account with a shipper of PETPLANET'S choice.
All orders will be via EDI, facsimile or electronic file transfer. AGCO will
provide PETPLANET with the shipping information and acknowledgment of shipment
within 24 hours of an actual shipment.
ARTICLE V. PRICING AND PAYMENT TERMS
5.1 General. Prices for all goods purchased hereunder shall be
determined, and during the term hereof shall remain, equal to or less than "most
favored nation" pricing for the same or similar products, less a five percent
(5%) discount. AGCO may change any agreed upon pricing, in whole or in part, at
any time, upon ninety (90) days prior notice to PETPLANET. However, in the event
that AGCO is provided less than ninety day notice of a vendor price change, AGCO
shall notify PETPLANET of such price change as soon as possible under the
circumstances.
5.2 Payment Terms. AGCO will invoice PETPLANET on a weekly basis for
each product delivered to a PETPLANET customer at agreed upon pricing.
ARTICLE VI. ADDITIONAL CONSIDERATION
6.1 Options. Additional compensation shall include a warrant to
purchase 250,000 shares of PETPLANET common stock vesting on a quarterly basis
and pursuant to the terms and conditions as set forth in Exhibit "C" (the
"Common Stock Warrant"). The terms and conditions of the Common Stock Warrant
are incorporated into the terms and conditions of this Agreement such that
default or termination of one agreement shall constitute default or termination
of the other agreement. Specifically, failure to execute the Common Stock
Warrant at the time of grant shall constitute a unilateral breach of this
Agreement, subject to voidability by PETPLANET.
6.2 Variable Stock Consideration. AGCO shall also be compensated for
each paying account that enrolls in the Pet Small Business Network (PSBN) for a
minimum term of four (4) months and names AGCO as its referral source to PSBN,
subject to verification by PETPLANET. Such compensation shall be in the form of
warrants to purchase an additional fifty- (50) shares of PETPLANET common stock
for each paying account that enrolls in the PSBN. Warrants issued under this
Section 6.2 shall be awarded on a semi-annual basis dependent upon the number of
accounts enrolled by AGCO in the prior six-month period and verified by
PETPLANET. All warrants issued hereunder shall be issued subject to the terms
and conditions set forth in Section 6.1 and a vesting period of four (4) months
for each participant's account enrollment period.
6.3 Bonus Consideration. If AGCO introduces PETPLANET to third parties
distributors with the intention of those third party distributors possibly
providing distribution services to PETPLANET and, thereafter, PETPLANET enters
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into one or more exclusive product distribution agreements with those third
parties, AGCO may be awarded, as bonus consideration, a warrant to purchase
25,000 shares of PETPLANET common stock subject to the terms and conditions as
set forth in Exhibit C. Any bonus consideration awarded shall be issued at the
reasonable discretion of PETPLANET.
ARTICLE VII. GUARANTEE OF PERFORMANCE
7.1 Performance Guarantee. PETPLANET shall use its best efforts to meet
certain performance goals in the sale of AGCO products as set forth below (the
"Gross Sales Projections"). Gross Sales Projections shall be calculated from the
PETPLANET actual gross revenue derived from PETPLANET visitor purchases of AGCO
products. PETPLANET agrees to meet or exceed those Gross Sales Projections. In
the event that the Gross Sales Projections are not met within the agreed upon
time frame, PETPLANET shall be subject to a margin deficiency payment as defined
below (the "Margin Deficiency Payment").
Gross Sales Projections
-----------------------
Effective Date to September 30, 2000 $1,000,000
October 1, 2000 to September 30, 2001 $3,000,000
October 1, 2001 to September 30, 2002 $5,000,000
7.2. Margin Deficiency. The Margin Deficiency shall be calculated based
on the difference between the Gross Sales Projections and the actual gross sales
of AGCO products to PETPLANET visitors incurred in the same period of time as
the Gross Sales Projections (the "Actual Gross Sales"). That number shall be
multiplied by the average margin of sales to date of the existing product mix
for AGCO products sold over the immediately preceding twelve-month period.
PETPLANET shall prepare an accounting to determine the Actual Gross Sales; such
accounting shall be prepared according to Generally Accepted Accounting
Principles ("GAAP"), except that returned, defective or purchased products shall
be subtracted from the final calculation in determining the Actual Gross Sales.
The accounting will be prepared by PETPLANET within thirty (30) days of the
September 30th year-end Gross Sales Projection dates as stated above. PETPLANET
shall pay to AGCO the Margin Deficiency, if any, within thirty (30) days of
preparation of the accounting.
7.3. Breach. Failure of PETPLANET to pay any resulting Margin
Deficiency will constitute a material breach of this Agreement and be grounds
for termination as set forth in Article XI herein.
7.4. Expiration of this Article. Guarantees of performance and
provisions of this Article VII shall expire on November 30, 2002, save and
except for the survivability of remedies available to either party at law or in
equity and as set forth in Article XVII below.
ARTICLE VIII. RIGHT OF FIRST REFUSAL
8.1 Grant. PETPLANET is hereby granted the right of first refusal (the
"First Refusal Right"), exercisable in connection with any proposed sale or
other transfer of thirty percent (30%) of the total number of outstanding AGCO
common stock. For purposes of this Article VIII the terms "sale" and "transfer"
shall include:
(a) any assignment, pledge, encumbrance or other disposition for value
of thirty percent (30%) of the total number of outstanding AGCO
shares;
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(b) a merger or acquisition in which AGCO is not the surviving entity,
except for a transaction the principal purpose of which is to
change the entity form or state of incorporation;
(c) the sale, transfer or other disposition of all or substantially all
of the assets of AGCO;
(d) any reverse merger in which AGCO is the surviving entity but in
which fifty percent (50%) or more of AGCO's outstanding voting
stock is transferred to holders different from those who held the
stock immediately prior to such merger;
(e) any sale or transfer of over sixty percent (60%) of the equitable
ownership interest in AGCO held by Xxxx Xxxxxx; or
(f) the filing of applicable registration statements relating to an
initial underwritten public offering by AGCO of its equity
securities pursuant to an effective registration statement filed
under the 0000 Xxx.
8.2 Non-triggering Event. PETPLANET's right of first refusal shall not
be triggered in the event of (i) a gratuitous transfer of AGCO common stock made
to Xxxx Xxxxxx' spouse or issue, including adopted children, or to a trust for
the exclusive benefit of Xxxx Xxxxxx or his spouse or issue, (ii) a transfer of
AGCO common stock to Xxxxxxx Xxxxxx or Xxxxxxx Xxxxxx' spouse or issue, (iii) a
transfer of title to the AGCO common stock effected pursuant to Xxxx Xxxxxx'
will or the laws of intestate succession, (iv) a transfer of AGCO common stock
by Xxxx Xxxxxx in pledge as security for any purchase-money indebtedness
incurred by Xxxx Xxxxxx with AGCO, or (v) a transfer of AGCO common stock to Xxx
Xxxx pursuant to the effectuation of the terms of an employment agreement
entered into by Xxx Xxxx and AGCO prior to the Effective Date.
8.3 Notice of Intended Disposition. In the event of a sale or transfer
of AGCO common stock (the "Target Shares"), AGCO shall promptly (i) deliver to
the Secretary of PETPLANET written notice (the "Disposition Notice") of the
offer and the basic terms and conditions thereof, including the proposed
purchase price, and (ii) provide satisfactory proof that the disposition of the
Target Shares to the third-party offeror would not contravene any provisions
this Agreement.
8.4 Exercise of Right. PETPLANET (or its assignees) shall, for a period
of twenty one (21) days following receipt of the Disposition Notice, have the
right to purchase the Target Shares specified in the Disposition Notice upon the
same terms and conditions specified therein. Such right shall be exercisable by
written notice (the "Exercise Notice") delivered to AGCO prior to the expiration
of the twenty one--(21) day exercise period. If such right is exercised with
respect to all the Target Shares specified in the Disposition Notice, then
PETPLANET (or its assignees) shall effect the purchase of the Target Shares,
including payment of the purchase price, not more than five (5) business days
after delivery of the Exercise Notice; and at such time AGCO shall deliver to
PETPLANET the certificates representing the Target Shares to be purchased,
properly endorsed for transfer, if applicable.
Should the purchase price specified in the Disposition Notice be
payable in property other than cash or evidences of indebtedness, PETPLANET (or
its assignees) shall have the right to pay the purchase price in the form of
cash equal in amount to the value of such property. If AGCO and PETPLANET (or
its assignees) cannot agree on such cash value within ten (10) days after
PETPLANET's receipt of the Disposition Notice, the valuation shall be made by an
appraiser of recognized standing selected by AGCO and PETPLANET (or its
assignees), or, if they cannot agree on an appraiser within twenty one (21) days
after PETPLANET's receipt of the Disposition Notice, each shall select an
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appraiser of recognized standing and the two appraisers shall designate a third
appraiser of recognized standing, whose appraisal shall be determinative of such
value. AGCO and PETPLANET shall share the cost of such appraisal equally. The
closing shall then be held on the latter of (i) the fifth business day following
delivery of the Exercise Notice or (ii) the 15th day after such cash valuation
shall have been made.
8.5 Non-Exercise of Right. In the event the Exercise Notice is not
given to AGCO within twenty one (21) days following the date of PETPLANET's
receipt of the Disposition Notice, AGCO shall have a period of thirty (30) days
thereafter, in which to sell or otherwise dispose of the Target Shares upon
terms and conditions (including the purchase price) no more favorable to the
third-party purchaser than those specified in the Disposition Notice. The
third-party purchaser shall acquire the Target Shares free and clear of all the
terms and provisions of this Agreement (including PETPLANET's First Refusal
Right hereunder). If AGCO does not sell or otherwise dispose of the Target
Shares within the specified thirty (30) day period, PETPLANET's First Refusal
Right shall continue to apply to any subsequent disposition of the Target Shares
by AGCO until such right lapses in accordance with Section 8.5.
8.6 Recapitalization.
(a) In the event of any stock dividend, stock split, recapitalization
or other transaction affecting AGCO's outstanding common stock as a class
effected without receipt of consideration, then any new, substituted or
additional securities or other property which is by reason of such transaction
distributed with respect to the AGCO shares shall be immediately subject to
PETPLANET's First Refusal Right hereunder, but only to the extent the AGCO
shares are at the time covered by such right.
(b) In the event of any of the following transactions (a "Corporate
Transaction"):
(i) a merger or acquisition in which AGCO is not the surviving entity,
except for a transaction the principal purpose of which is to change
the State in which AGCO is incorporated,
(ii) the sale, transfer or other disposition of all or substantially
all of the assets of AGCO,
(iii) any reverse merger in which AGCO is the surviving entity but in
which fifty percent (50%) or more of AGCO's outstanding voting stock is
transferred to holders different from those who held the stock
immediately prior to such merger, or
(iv) the closing of the initial underwritten public offering by AGCO of
its equity securities pursuant to an effective registration statement
filed under the 1933 Act,
then PETPLANET's First Refusal Right shall remain in full force and effect and
shall apply to the new capital stock or other property received in exchange for
the AGCO shares in consummation of the Corporate Transaction, but only to the
extent the AGCO shares are at the time covered by such right.
ARTICLE IX. LIABILITY AND INDEMNITIES
9.1 Indemnity. AGCO shall indemnify and defend and hold PETPLANET
harmless from any and all losses, claims, damages, liabilities, costs or
expenses, including attorney fees and costs, as a result of any claim, action,
lawsuit, proceeding, or administrative action is brought against PETPLANET
claiming that a product infringes a patent or copyright or that a product caused
damage or injury to persons or property, or any similar occurrence, but only if
(i) PETPLANET notifies AGCO promptly upon learning that the claim might be
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asserted, (ii) AGCO has sole control over the defense of the claim and any
negotiation for its settlement or compromise and (iii) PETPLANET takes no action
that, in AGCO's judgment, is contrary to AGCO's interest.
9.2 Limitation. AGCO will have no indemnity obligation to PETPLANET if
the patent or copyright infringement claim results from a correction or
modification of a product not provided by AGCO, or if PETPLANET makes any
representation or warranty outside the scope of any written warranty authorized
by AGCO or its manufacturers and made available to PETPLANET.
9.3 NO CONSEQUENTIAL DAMAGES. UNDER NO CIRCUMSTANCES WILL PETPLANET OR
ITS RELATED PERSONS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL,
PUNITIVE, OR INCIDENTAL DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR
UNFORESEEABLE, BASED ON CLAIMS OF AGCO (INCLUDING, BUT NOT LIMITED TO, CLAIMS
FOR LOSS OF DATA, GOODWILL, USE OF MONEY OR USE OF THE PRODUCTS, INTERRUPTION IN
USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER
ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH
OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR
OTHERWISE, EXCEPT ONLY IN THE CASE OF DEATH OR PERSONAL INJURY WHERE AND TO THE
EXTENT THAT APPLICABLE LAW REQUIRES SUCH LIABILITY. IN NO EVENT WILL THE
AGGREGATE LIABILITY WHICH PETPLANET AND ITS RELATED PERSONS MAY INCUR IN ANY
ACTION OR PROCEEDING EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO AGCO FOR THE
SPECIFIC PRODUCT THAT DIRECTLY CAUSED THE DAMAGE.
ARTICLE X. FORCE MAJEURE
10.1 Force Majeure. AGCO shall not be responsible for delay or
nonperformance of its responsibilities under this Agreement if AGCO is unable to
carry out such responsibilities because of acts of God, war, public enemies,
seizure under legal process, strikes, lockouts, riots and civil commotions, or
any other reason of a similar nature beyond AGCO's control.
ARTICLE XI. DEFAULT AND TERMINATION
11.1 Initial Period. The initial period of this Agreement (referred to
herein as the "Initial Period") shall commence on the Effective Date of this
Agreement, and shall continue for a period of five (5) years, with renewal
period per above.
11.2 Default by Either Party. This Agreement may be terminated by
either party if the other party shall at any time default in the performance of
any obligation under the terms of this Agreement or any Exhibit attached hereto
and such default or breach shall not have been remedied within thirty (30) days
after a written notice specifying such default or breach has been given to the
defaulting party.
11.3 Termination by Either Party. This Agreement may be terminated by
either party under any of the following conditions:
(a) if one of the parties shall be declared insolvent or bankrupt;
(b) if a petition is filed in any court and not dismissed in ninety
(90) days to declare one of the parties bankrupt or for a reorganization under
the Bankruptcy Law or any similar statute;
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(c) if a party ceases to carry on business or ceases paying its debts
as they become due and payable;
(d) if either party ceases to be a validly existing corporation or an
order is made or a resolution passed for its winding up affairs;
(e) if either party makes an assignment or transfer of this Agreement
or any right or obligation under this Agreement without the written consent of
the other, except in the event of a Corporate Transaction as set forth in
Article XVI below; or
(f) if a Trustee in Bankruptcy or a Receiver or similar entity is
appointed for one of the parties.
11.4 Termination by PETPLANET Without Cause. This Agreement may be
terminated by PETPLANET without cause and without opportunity to cure provided
to AGCO upon two (2) months written notice and subject to the following
termination fees, payable upon the selected termination date:
(a) If the selected termination date is on or before one (1) year from
the Effective Date, the termination fee shall be two hundred and fifty thousand
dollars ($250,000);
(b) If the selected termination date is after one (1) year from the
Effective Date, but on or before two (2) years from the Effective Date, the
termination fee shall be one million dollars ($1,000,000);
(c) If the selected termination date is after two (2) years from the
Effective Date, but on or before three (3) years from the Effective Date, the
termination fee shall be two million dollars ($2,000,000);
(d) If the selected termination date is after three (3) years from the
Effective Date, but on or before four (4) years from the Effective Date, the
termination fee shall be three million dollars ($3,000,000); and
(e) If the selected termination date is after four (4) years from the
Effective Date, but on or before five (5) years from the Effective Date, the
termination fee shall be five million dollars ($5,000,000).
11.5 Expiration of Termination Fee. Unless otherwise terminated
pursuant to the terms and conditions of in this Agreement, AGCO's right to
termination fees under this Section 11.4 shall expire on September __, 2004, and
Section 11.4 shall no longer have any force or effect.
ARTICLE XII. RECORDS
12.1 Inspect Records. PETPLANET reserves the right, upon reasonable
request and notification, to enter AGCO's premises during normal working hours
to examine any of the goods owned by PETPLANET being held for resale under the
terms of this Agreement.
12.2 Accounting. PETPLANET shall be entitled to receive from AGCO
PETPLANET account report information maintained by AGCO, which shall include
levels of PETPLANET's existing inventory, PETPLANET's daily order processing,
and PETPLANET's transaction reports. PETPLANET shall not be charged for copies
of such account information. AGCO shall provide to PETPLANET computer reports
and batch updates on existing inventory levels and sales history as needed and
as reasonably requested by PETPLANET.
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ARTICLE XIII. INDEPENDENT CONTRACTOR STATUS
13.1 Independent Contractor. It is agreed and understood that PETPLANET
and AGCO are entering into this Agreement as independent contractors, and that
all personnel engaged in work to be done under this Agreement are to be
considered for all purposes as employees of PETPLANET or AGCO as the case may
be, and under no circumstances shall they be construed or considered to be
employees of the other. Nothing contained herein shall be construed to place
PETPLANET and AGCO in a relationship of partners, franchisees, joint ventures,
principal and agent, or employer and employee.
ARTICLE XIV. REPRESENTATIONS AND WARRANTIES.
14.1 AGCO Performance. AGCO warrants its services will be provided to
the best of AGCO's ability and in accordance with prevailing industry standards
of performance.
14.2 No Conflicting Obligations. AGCO warrants that AGCO is under no
obligation and will not, during the term of this Agreement, be under any
obligation to any third party that would impair, impede, or conflict with its
rendering professional services to PETPLANET.
14.3 PETPLANET Performance. PETPLANET warrants that it will use its
best efforts to adequately meet the terms and conditions of performance herein.
ARTICLE XV. PROPRIETARY INFORMATION AND INTELLECTUAL PROPERTY:
15.1 Confidential Information - No Disclosure by the Parties. The
Parties agree that none of their employees, agents, representatives, directors,
officers, or partners will be permitted access to certain confidential
information, proprietary know-how, methods, processes, and trade secrets
relating to their past, present, and future research, marketing, development,
and business activities ("Confidential Information"). The Parties agree that,
until such time as the Confidential Information enters the public domain either
by mutual design and/or express written permission of the other, the Parties,
and their employees, agents, representatives, directors, officers and partners
will never, directly or indirectly, use, disseminate, disclose, lecture upon, or
publish anything concerning any of the Confidential Information.
15.2 Confidential Information - Restricted Access. The Parties further
agree that none of their employees, agents, representatives, directors, officers
or partners will be permitted access to Confidential Information or be permitted
to perform services in connection with this Agreement without first entering
into a written non-disclosure and confidentiality agreement. The form of
"Non-Disclosure and Confidentiality Agreement and Invention Assignment" required
by PETPLANET is set forth in Exhibit "B."
15.3 Confidential Information - Return of Materials. Upon expiration or
termination of this Agreement the Parties agree to return all Confidential
Information of the other, including all related drawings, documents, records,
notebooks, discs, tapes or data residing or recorded in electronic media, and
all other representatives of Confidential Information.
15.4 Proprietary Information and Intellectual Property - PETPLANET
Ownership. AGCO agrees that all material, proprietary know-how, methods,
processes, trade secrets, and other intangible intellectual property, as well as
all tangible inventions, improvements, developments and discoveries conceived,
made,
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discovered or reduced to practice by AGCO, solely or in collaboration with
others during this Agreement (collectively, "IP"), (i) which relates in any
manner to the business operations or marketing methods of PETPLANET, or the
actual or demonstrably anticipated research or development of PETPLANET, that
AGCO may undertake, investigate, or experiment with during the course of this
Agreement, or (ii) which AGCO may become associated with in the course of AGCO's
work, investigation, or experimentation in performing AGCO's services hereunder,
or (iii) which are developed by AGCO using any supplies, facilities or
Confidential Information of PETPLANET, or (iv) which are developed by AGCO at
PETPLANET's expense, are the sole property of PETPLANET. AGCO further agrees to
assign and does hereby fully assign all such IP to PETPLANET, including all
rights of use, copyrights, trademarks, trade secrets, patent, patent application
and other rights in such IP. Such IP and the rights associated therewith do not
include any intellectual property rights held by AGCO prior to entering into
this Agreement or intellectual property rights and rights associated therewith,
if any, acquired during the course of this Agreement and exclusive of the
performance of services by AGCO hereunder.
ARTICLE XVI. ASSIGNMENT
16. Assignment. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the parties hereto, provided,
however, neither party to this Agreement shall assign or sublet its interest or
obligations herein, including, but not limited to, the assignment of any moneys
due and payable, without the prior written consent of the other party, which
consent shall not be unreasonably withheld, delayed or conditioned.
Notwithstanding the foregoing, PETPLANET need not obtain the consent of AGCO in
the event of a corporate transaction ("Corporate Transaction"). A Corporate
Transaction is defined as follows:
a. a merger or acquisition in which PETPLANET is not the surviving
entity;
b. the sale, transfer or other disposition of all or substantially
all of the assets of PETPLANET; and
c. any reverse merger in which PETPLANET is the surviving entity
but in which fifty percent (50%) or more of PETPLANET's outstanding
voting stock is transferred to holders different from those who held
the stock immediately prior to such merger.
ARTICLE XVII. REMEDIES
17.1 Remedies. The Parties acknowledge and agree that either party's
material breach of Articles XV is likely to give rise to irreparable injury to
the other party for which the non-breaching party will have no adequate remedy
at law. Accordingly, in the event of an actual or threatened breach of the
Article by one party, the non-breaching party is entitled to obtain injunctive
relief against the breaching party in addition to all other remedies available
at law or in equity.
ARTICLE XVIII. APPLICABLE LAW
18.1 Applicable Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California.
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ARTICLE XIV. ARBITRATION
19.1 Arbitration.
a. In the event that any dispute shall arise between the parties
that is related in any way to this Agreement, that dispute shall be
resolved solely through binding arbitration to be held in San
Francisco, California and conducted pursuant to the Commercial
Arbitration Rules of the American Arbitration Association.
b. The parties agree to submit to the exclusive jurisdiction of
the state and federal courts located San Francisco, California for the
enforcement of any award that the Arbitrator may make.
c. Except as may be otherwise required by law or in connection
with an action to enforce an arbitration award, neither party may
disclose the existence of results of any arbitration hereunder without
the written consent of the other party.
ARTICLE XX. INVALIDITY
20.1 Invalidity. Should any provision of this Agreement be declared
invalid, unenforceable or void in any judicial or administrative proceeding,
such decision shall not have the effect of invalidating or voiding any other
provision of this Agreement, and the parties agree that the part or parts of
this Agreement so held to be invalid, unenforceable or void, shall be deemed to
have been deleted from this Agreement, and the remainder of the Agreement shall
have the same force and effect as if such deleted parts had not been included.
ARTICLE XXI. NOTICES
21.1 Notices. Any notice or demand required or permitted hereunder
shall be given in writing and shall be considered as having been given by either
party to the other party upon the facsimile transmission confirmed by the
mailing thereof to such other party at the following addresses or to such other
address as such other party may from time to time specify in writing:
If to AGCO:
American AGCO, Inc.
000 Xxxxxxx Xxx.
Xxxxx Xx. Xxxx, XX
Attn: Xxxx Xxxxxx, President
Telephone: (000)000-0000
Fax: (000)000-0000
If to PETPLANET:
PETPLANET
00 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx, VP Finance & Operations
Telephone: (000)000-0000
Fax: (000)000-0000
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ARTICLE XXII. ENTIRE AGREEMENT
22.1 Entire Agreement. This Agreement, together with all exhibits and
attachments, constitutes the entire agreement between the parties, and there are
no other terms and conditions.
ARTICLE XXIII. AMENDMENT AND WAIVER
23.1 Amendment and Waiver. This Agreement may not be amended or varied
except by the written agreement of the parties hereto. All waivers of any rights
of either party as set forth herein must be in writing to be effective.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
day and year first above written.
XXXXXXXXX.XXX, INC. AMERICAN AGCO, INC.
By: /s/ Xxxxxx X. Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------- -------------------------
Xxxxxx X. Xxxxxx Xxxx Xxxxxx
Title: Chief Executive Officer Its: President
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EXHIBIT A
Services
AGCO Service Obligations
1. Merchandising and distribution expertise
2. Direct fulfillment to consumer
3. Secondary customer service support: AGCO shall address specific
product inquiries outside the context of the e-commerce
service provided by PETPLANET and as otherwise set forth below.
4. Database integration consulting/management
5. Inventory management
6. Vendor relations
7. Small business network consulting
PETPLANET Service Obligations
1. Interface design & execution
2. Marketing, promotion & advertising
3. Traffic & Internet distribution
4. Sales
5. Primary customer service: Customer service inquiries shall initially be
directed to PETPLANET which shall undertake to adequately serve the
inquiror. In the event that the inquiry is beyond the scope of the
e-commerce transaction (ie; addresses the performance of the specific
product purchased or intended to be purchases) PETPLANET shall forward
the inquiry to customer service support contact provided by AGCO.
6. Content/editorial
7. Accounting & transaction processing
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EXHIBIT B
Non-Disclosure Agreement
NONDISCLOSURE AGREEMENT
This Agreement, made effective as of the ____day of September 1999 by
and between XxxXxxxxx.xxx, Inc., a Delaware corporation ("PETPLANET") and
American AGCO, Inc., a Minnesota corporation located at _______________________
("AGCO"), to assure the protection and preservation of the confidential and or
proprietary nature of information to be disclosed or made available to each
other in connection with certain negotiations or discussions further described
herein.
WHEREAS, Xxxxxxxxx.xxx, Inc. owns xxxx://xxx.xxxxxxxxx.xxx, an
online network service specializing in distributing pet related
information, services and products on the Internet.
WHEREAS, AGCO is engaged in the distribution of pet products.
WHEREAS, the parties are desirous of entering into discussions
concerning a potential relationship between the parties whereby AGCO is
interested in evaluating and potentially entering into a commercial
relationship with, and/or investing in XxxXxxxxx.xxx, Inc.
WHEREAS, the parties desire to assure the confidential status
of the information which may be disclosed to each other;
NOW THEREFORE, in reliance upon and in consideration of the
following undertakings, the parties agree as follows:
1. Subject to the limitations set forth in Paragraph 2, all
information disclosed to the other party shall be deemed to be "Proprietary
Information." In particular, Proprietary Information shall be deemed to include
any information, process, program, design, financial information, customer
lists, trade secrets and marketing strategies relating to the disclosing party,
its present or future products, sales, suppliers, clients, customers, employees,
investors, or business, whether in oral, written, graphic or electronic form.
2. The term "Proprietary Information" shall not be deemed to
include information which: (i) is now, or hereafter becomes, through no act or
failure to act on the part of the receiving party, generally known or available;
(ii) is known by the receiving party at the time of receiving such information
as evidenced by its records; (iii) is hereafter furnished to the receiving party
by a third party, as a matter of right and without restriction on disclosure;
(iv) is independently developed by the receiving party without any breach of
this Agreement; or (v) is the subject of a written permission to disclose
provided by the disclosing party.
3. Each party shall maintain in trust and confidence and not
disclose to any third party or use for any unauthorized purpose any Proprietary
Information received from the other party. Each party may use such Proprietary
Information only to the extent required to accomplish the purposes of this
Agreement as set forth herein. Proprietary Information shall not be used for any
purpose or in any manner that would constitute a violation of any laws or
regulations, including without limitation the export control laws of the United
States. No other rights or licenses to trademarks, inventions, copyrights, or
patents are implied or granted under this Agreement.
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4. Proprietary Information supplied shall not be reproduced in
any form except as required to accomplish the intent of this Agreement.
5. The responsibilities of the parties are limited to using
their reasonable and best efforts to protect the Proprietary Information
received with the same degree of care used to protect their own Proprietary
Information from unauthorized use or disclosure. Both parties shall advise their
employees or agents who might have access to such Proprietary Information of the
confidential nature thereof. No Proprietary Information shall be disclosed to
any officer, employee or agent of either party who does not have a need for such
information.
6. All Proprietary Information (including all copies thereof)
shall remain the property of the disclosing party, and shall be returned to the
disclosing party after the receiving party's need for it has expired, or upon
request of the disclosing party, and in any event, upon completion or
termination of this Agreement.
7. Notwithstanding any other provision of this Agreement,
disclosure of Proprietary Information shall not be precluded if such disclosure:
(a) is in response to a valid order of a court or other
governmental body of the United States or any political subdivision thereof;
provided, however, that the responding party shall first have given notice to
the other party hereto and shall have made a reasonable effort to obtain a
protective order requiring that the Proprietary Information so disclosed be used
only for the purposes for which the order was issued;
(b) is otherwise required by law; or
(c) is otherwise necessary to establish rights or enforce
obligations under this Agreement, but only to the extent that any such
disclosure is necessary.
8. No furnishing of Proprietary and Confidential Information, and no obligation
under this Agreement, shall be construed to obligate either party to a) enter
into any further agreement or negotiation, or make any further disclosure; or b)
to restrict either party from pursuing other businesses in whatever manner such
party prefers.
9. This Agreement shall continue in full force and effect for
so long as the parties continue to exchange Proprietary Information. This
Agreement may be terminated at any time upon thirty-(30) days written notice to
the other party. The termination of this Agreement shall not relieve either
party of the obligations imposed by Paragraphs 3, 4, 5 and 11 of this Agreement
with respect to Proprietary Information disclosed prior to the effective date of
such termination and the provisions of these Paragraphs shall survive the
termination of this Agreement for a period of four (4) years from the date of
such termination.
10. This Agreement shall be governed by the laws of the State
of California
11. This Agreement contains the final, complete and exclusive
agreement of the parties relative to the subject matter hereof and may not be
changed, modified, amended or supplemented except by a written instrument signed
by both parties.
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12. Each party hereby acknowledges and agrees that in the
event of any breach of this Agreement by the other party, including, without
limitation, the actual or threatened disclosure of a disclosing party's
Proprietary Information without the prior express written consent of the
disclosing party, the disclosing party will suffer an irreparable injury, such
that no remedy at law will afford it adequate protection against, or appropriate
compensation for, such injury. Accordingly, each party hereby agrees that the
other party shall be entitled to specific performance of a receiving party's
obligations under this Agreement, as well as such further injunctive relief as
may be granted by a court of competent jurisdiction.
13. In the event of any dispute, proceeding or suit concerning
this Agreement or the provision of services hereunder, the losing party shall
pay all reasonable attorneys fees and legal costs of enforcement of prevailing
party rights under this Agreement.
AGREED TO: AGREED TO:
XXXXXXXXX.XXX, INC. AMERICAN AGCO, INC.
/s/ Xxxxxx X. Xxxxxx /s/ Xxxx Xxxxxx
-------------------------------- ------------------------------------
By: Xxxxxx X. Xxxxxx By: Xxxx Xxxxxx
Title: Chief Executive Officer Title: President
Date: September 10, 1999 Date: September 10, 1999
EXHIBIT C
COMMON STOCK WARRANT
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