1
EXHIBIT 10.1
AUTHORIZED DISTRIBUTOR AGREEMENT
THIS AGREEMENT is made as of May 1,1997 between GE Petrochemicals, Inc., a
Delaware corporation, with a place of business at 000 Xxxxx Xx., Xxxxxxxxxxx,
Xxxx Xxxxxxxx (the "Company"), a wholly owned subsidiary of General Electric
Company and JLM Marketing, Inc., a Delaware corporation, having the following
principal office and place of business at 0000 Xxxxxx Xxxxx Xxxxxxx, Xxxxx,
Xxxxxxx 00000 (the "Distributor"):
1. APPOINTMENT, TERRITORY AND TERM
A. APPOINTMENT OF DISTRIBUTOR
The Company hereby appoints the Distributor and the Distributor hereby accepts
said appointment as an authorized distributor for the Company in the Territory,
and grants to the Distributor the right to purchase so much of the Product as
the Company shall make available for resale in the Territory pursuant to and
subject to the terms and conditions of this Agreement. This Agreement does not
contemplate or require the payment by the Distributor of a fee of any kind
whatsoever for its appointment as an authorized distributor.
B. PRODUCT
The term "Product" shall mean Styrene. The parties agree that the Company shall
sell to Distributor such quantities of Product as Company may make available
after servicing its internal needs, the needs of its affiliate businesses, and
those of its then existing customer base. It is estimated that Company shall
sell to Distributor up to 40 Million pounds of Product during the initial term
of this Agreement. Distributor agrees to purchase on the terms set forth herein
100% of the Product made available by the Company for sale to Distributor.
Following the first six months of the initial term hereof, Distributor shall
provide a four month rolling forecast of its Product orders. In the event that
the Distributor purchases less than 100% of Purchaser's forecasted amount,
Distributor shall pay to Company one-half of the difference between the price
set forth hereunder and any lesser price at which Company sells the unpurchased
Product.
2
C. TERRITORY
The geographic area (the "Territory") in which the Distributor shall undertake
the responsibilities specified in this Agreement is the United States. Upon
ninety (90) days' prior written notice, the Company in its sole and absolute
discretion reserves the right to restrict the Territory.
D. RETAINED ACCOUNTS
In order to maintain an efficient distribution of the Product, the Company
desires to retain certain accounts that require its direct sales participation.
The Distributor agrees not to sell the Product to any of the retained direct
accounts or other accounts set forth on Exhibit A to this Agreement (the
"Retained Accounts"). Aside from the Retained Accounts, either party may sell to
any other prospective customer, however each party recognizes that the goal of
this distribution arrangement is to promote a broader and more efficient
distribution of the Product.
E. TERM
The term of the distributorship hereby created shall be for a period of three
(3) years from May 1,1997 to April 31,1998, and shall continue on an annual
basis thereafter, subject to termination by either party upon sixty (60) days
prior written notice to the other party.
2. COMPANY RESPONSIBILITIES
The Company shall:
-- Sell the Product to the Distributor at such prices as shall be established by
the Company from time to time in its sole discretion for resale by the
Distributor in the Territory.
-- Use reasonable efforts to supply such Product ordered by the Distributor in
the quantities and at the times specified by the Distributor, provided that
the Company reserves the right at any time prior to shipment to allocate its
available Product as it may determine in the exercise of its business
judgment.
-- Provide to the Distributor information and advice relating to marketing,
advertising and packaging to the extent the Company shall determine in its
sole discretion.
-- Extend such credit to the Distributor as the Company may, in its sole
discretion, deem appropriate, subject to change or withdrawal at any time.
2
3
3. DISTRIBUTOR RESPONSIBILITIES
The Distributor shall:
-- Use its best efforts to sell, advertise and promote the sale and use of the
Product throughout the Territory and to fulfill the sales targets agreed to
by the parties or established by the Company.
-- Order and maintain adequate stocks of the Product to meet the needs of its
customers in the Territory.
-- Furnish to the Company, in such manner and at such times as the Company may
from time to time request, financial statements and information relating to
sales and service, inventory levels, the Distributor's promotional efforts,
publicly or lawfully available information relating to competitive
activities, legal developments in the Territory (including product liability,
intellectual property, import and custom, and taxation rules to which the
Distributor becomes aware), and the Distributor's sales plans and forecasts.
-- Pay when due all amounts owed to the Company by the Distributor as reflected
on the Company's invoices to the Distributor. The Distributor shall not pay
less than any invoiced amount unless otherwise authorized by the Company in
writing.
-- Meet with the Company on a regular basis to review and make adjustments, as
necessary, to Distributor's sales objectives and performance.
4. STANDARD SALES TERMS AND CONDITIONS
-- Unless otherwise agreed in writing by the Company for a given transaction or
type of transaction, the purchase and sale of all Product to the Distributor
shall be subject to the terms and conditions and the provisions of this
Agreement and to the Company's standard form of Conditions of Sale attached
hereto and made a part hereof, including any subsequent modifications of said
Conditions of Sale made in the sole discretion of the Company. Any additional
or different terms proposed by the Distributor, whether in its purchase
order, order acknowledgment, acceptance or any other manner in the purchase
and sale of the Product shall be deemed null and void and shall not be
binding upon the parties, unless specifically and expressly agreed to by the
Company in writing. In the event of any inconsistency between the provisions
of this Agreement and the Conditions of Sale, the terms of this Agreement
shall govern.
-- All sales contracts entered into by the Distributor with its customers shall
contain terms and conditions which provide the Company with the protections
of the Warranties and Limitations of Liability contained in the Conditions of
Sale.
3
4
-- The price of the Product shall be determined by Company on a quarterly basis
by written notice to Distributor. The Company reserves the right to change
its prices for the Product at any time and from time to time with fifteen
(15) days prior written notice to the Distributor.
5. COMPANY TRADE NAME AND TRADEMARKS; PATENTS
-- The Distributor acknowledges that the marks "GE PETROCHEMICALS", "GENERAL
ELECTRIC" and "GE" are the dominant features of the legal and communicative
trade names of the Company, and that the marks "GE" "GE PETROCHEMICALS" and
GENERAL ELECTRIC are the principal trademarks for the Product manufactured or
sold by the Company.
-- The Distributor shall not in any manner use the words "General Electric" or
"GE or any imitation or variant thereof, as a part of the Distributor's trade
name, company or firm name, nor will it grant such use by any subsidiary or
affiliate to dealers, if any, appointed by the Distributor. The Distributor
shall comply at all times with the rules and regulations furnished to the
Distributor by the Company with respect to the use of such trademarks and
trade names and to express and identify properly the "Authorized Distributor"
relationship with the Company for the Product, and shall not publish, or
cause to be published, any statement or encourage or approve any advertising
or practice which might mislead or deceive the public or might be detrimental
to the good name, trademarks, goodwill or reputation of the Company or its
Product. The Distributor shall, upon request, withdraw any statement and
discontinue any advertising or practice deemed by the Company to have such
effect.
-- The Distributor shall hold the Company harmless against any expense or loss
resulting from infringement of patents or trademarks arising from compliance
with the Distributor's designs or specifications or instructions. Except as
otherwise provided in the preceding sentence, the Company shall defend any
suit or proceeding brought against the Distributor so far as based on a claim
that any Product, or any part thereof, supplied under this contract
constitutes an infringement of any patent of the United States, if notified
promptly in writing and given authority, information and assistance (at the
Company's expense) for the defense of same, and the Company shall pay all
damages and costs awarded therein against the Distributor. In case the
Product, or any part thereof, is in such suit held to constitute infringement
and the use of the Product or part is enjoined, the Company shall at its own
expense and its option either procure for the Distributor the right to
continue using the Product, or part, or replace the same with noninfringing
Product, or modify it so it becomes noninfringing, or remove the Product and
refund the purchase price and the transportation cost thereof. The Company
shall, however, in no event be liable for any use made by the Distributor of
the Product supplied hereunder which is covered by any adversely held
patents. The foregoing states the entire liability of the Company for patent
infringement by the Product or any part thereof.
4
5
6. PRODUCT CHANGES AND DELETIONS
Irrespective of any general contractual commitment by the Distributor to any
of its customers to furnish Product on a continuing basis, or any purchase
order placed with the Company by the Distributor, the Company reserves the
right from time to time in its absolute discretion, without thereby incurring
any liability to the Distributor with respect to any purchase order placed by
the Distributor, or otherwise, to discontinue or limit its production of any
Product, to terminate, allocate, or limit deliveries of any such Product to
Distributor, to alter the composition of any Product, or to add new and
additional Product, to substitute such altered Product for the prior Product
in filling orders, change its sales and distribution policies, and withdraw,
reissue, or amend the Product warranty or label.
7. PRIVATE INFORMATION
-- The Distributor shall maintain in confidence and safeguard all business and
technical information which becomes available to the Distributor in
connection with this Agreement and which is either of a Company proprietary
nature or is not intended to be disclosed to others. This obligation of the
Distributor shall continue for five (5) years after expiration or termination
of this Agreement. In addition, the Distributor shall restrict access to such
information to those Distributor employees with a need to know such
information in order to perform under this Agreement. Such employees shall,
by written agreement with the Distributor, acknowledge their obligation to
protect such Company information and, upon request, the Distributor will
furnish such employee agreements to the Company.
-- Knowledge or information of any kind disclosed by the Distributor to the
Company shall be deemed to have been disclosed without obligation on the part
of the Company to hold the same in confidence, and the Company shall have
full right to use and disclose such information without any compensation to
the Distributor beyond that specifically provided by this Agreement;
provided, however, that the Company shall maintain the confidentiality of the
Distributor's financial statements furnished to it.
5
6
8. DELIVERY
-- Shipment of the Product shall be made only to the Distributor's principle
office and place of business identified herein, unless otherwise agreed in
writing by the Company. Title to the Product shall pass to the Distributor
upon delivery to the carrier F.O.B. point of shipment. Upon delivery to the
carrier, all risk of loss or damage and responsibility to file claims shall
be the Distributor's.
-- Shipping dates are approximate. In no event shall the Company be liable for
failure or delay in delivery, or failure or delay in manufacture, due to acts
of God, acts of the Distributor, acts of civil or military authority,
priorities, fires, strikes, floods, epidemics, quarantine restrictions, war,
riot, delays in transportation, car shortages, or inability due to causes
beyond the Company's reasonable control, failure to obtain necessary labor,
materials or manufacturing facilities or any other cause, whether of a
similar or dissimilar nature. In the event of any such failure or delay, the
date of delivery shall be extended for a period equal to the time lost by
reason of the failure or delay.
-- The Company may allocate limited supplies of the Product among its
distributors and other customers at its sole discretion.
9. RELATIONSHIP OF PARTIES AND CONTROLLING LAWS
-- This Agreement and any rights thereunder are non-exclusive and are not
assignable by the Distributor. The Distributor is an independent contractor
to the Company. The Distributor, its agents, subsidiaries, affiliates and
employees are in no way the legal representative, agent or employee of the
Company for any purpose whatsoever and they have no right or authority to
assume or create, in writing or otherwise, any obligation of any kind,
express or implied, in the name of or on behalf of the Company. The Company
reserves the right to determine in its sole and absolute discretion the
acceptability of any order or contract provision proposed by the Distributor.
-- All costs and expenses incurred by the Distributor shall be the sole
responsibility of the Distributor and no claim for reimbursement or other
payment shall be made against the Company.
-- The Distributor shall indemnify the Company and hold it harmless from any
claims, demands, liabilities, suits, or expenses of any kind arising out of
the Distributor's business activities or its performance under this
Agreement. This provision shall survive the expiration or termination of this
Agreement for any reason.
-- This Agreement and the rights and obligations thereunder and the relations
of the parties and all matters arising under or in connection with this
Agreement, including
6
7
the construction, validity, performance or termination thereunder, shall be
governed by and construed in accordance with the laws of the State of New
York.
00.XXXXXXXX PRACTICES
-- The Distributor hereby represents and warrants that in carrying out its
responsibilities under this Agreement, the Distributor and its owners,
directors, officers, employees or agents thereof have not and shall not pay,
offer or promise to pay, or authorize the payment directly or indirectly of
any moneys or anything of value to any government official or employee, or
any political party or candidate for political office for the purpose of
influencing any act or decision of such official or of the government to
obtain or retain business or direct business to any person.
-- The Distributor acknowledges that in the event that the Distributor resells,
directly or indirectly, any Product to any agency of the United States
Government, the Company is under no obligation to agree to any Federal
Acquisition Regulations (FAR) clauses or similar requirements which the
Distributor may be obliged to pass down to the Company. Notwithstanding any
other provision of this Agreement, provisions of any such FAR clauses or
similar requirements shall not be included in any transaction between the
Distributor and the Company unless the Company expressly agrees to such
provisions in a writing expressly referring to such clause and executed prior
to the shipment by the Company of such Product to the Distributor.
-- In the event the Company has reason to believe that a breach of any of the
representations and warranties in this Section 10 has occurred or may occur,
the Company may withhold further delivery of the Product until such time as
it has received confirmation to its satisfaction that no breach has or will
occur. The Company shall not be liable to the Distributor for any claim, loss
or damage whatsoever related to its decision to withhold delivery under this
provision.
-- In the event the Company has reason to believe that a breach of any of the
representations and warranties in this Section 10 has occurred or may occur,
the Company shall have the right to audit the Distributor in order to satisfy
itself that no breach has occurred. Upon request by the Distributor, the
Company shall select an independent third party to conduct an audit of the
Distributor in order to certify to the Company that no breach has or will
occur. The Distributor shall fully cooperate in any audit conducted by or on
behalf of the Company.
-- In the event the Company concludes in its sole and absolute discretion that
the Distributor has failed to meet its obligations hereunder, this Agreement
may be immediately terminated by the Company upon the effective service of
written notice to the Distributor. The Distributor shall indemnify and hold
the Company harmless against any and all claims, losses or damages arising
from or related to such breach or the termination of this Agreement, or both.
7
8
-- In no event shall the Company be obligated under this Agreement to take any
action or omit to take any action which the Company believes in good faith
would cause it to be in violation of the laws of the United States of America
or any state or locality thereof.
11. WARRANTY AND LIMITATION OF LIABILITY
-- The Company warrants that it has title to the Product sold hereunder and
warrants that the Product meet the Company's internal specifications, unless
alternative specifications have been agreed to in writing by the Company. The
conditions of any tests designed to resolve any alleged breach of warranty
shall be mutually agreed upon and the Company shall be notified and may be
represented at all such tests. If any Product delivered hereunder fails to
meet the above stated warranties within sixty (60) days of delivery to the
Distributor or resale, whichever is first to occur, and the Company is
immediately notified, then the Company shall replace the items of Product
which fail to meet the warranty, F.O.B. the Company's plant or, in the
Company's discretion, refund the purchase price for such items of Product
which fail to meet the warranty.
-- THE WARRANTIES STATED IN THIS SECTION 11 ARE IN LIEU OF ALL OTHER WARRANTIES,
WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF
MERCHANTABILITY, CONDITION, QUALITY, DURABILITY, DESIGN, OPERATION, OR
FITNESS FOR USE, OR SUITABILITY OF THE PRODUCT IN ANY RESPECT WHATSOEVER OR
IN CONNECTION WITH OR FOR THE PURPOSE AND USES OF THE DISTRIBUTOR (OR ANY
PARTY CLAIMING BY OR THROUGH THE DISTRIBUTOR).
-- THE TOTAL LIABILITY OF THE COMPANY ON ANY AND ALL CLAIMS, WHETHER IN
CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR PATENT INFRINGEMENT),
DELICT, QUASI-DELICT, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF,
CONNECTED WITH OR RESULTING FROM THE PERFORMANCE OR NON-PERFORMANCE OF THIS
AGREEMENT OR FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR,
REPLACEMENT OR USE OF ANY PRODUCT OR THE FURNISHING OF ANY SERVICE, SHALL NOT
EXCEED THE PRICE ALLOCABLE TO THE PRODUCT OR SERVICE WHICH GIVES RISE TO THE
CLAIM. Except as to title, any such liability shall terminate upon the
expiration of the warranty period specified above.
-- IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, INDEMNITY, WARRANTY,
TORT (INCLUDING NEGLIGENCE), DELICT, QUASI-DELICT, STRICT LIABILITY OR
OTHERWISE, SHALL THE COMPANY BE LIABLE FOR LOSS OF PROFIT OR REVENUES, LOSS
OF USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, LOSS OF
PURCHASE POWER, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES,
DOWNTIME
8
9
COSTS, ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES, OR CLAIMS
OF CUSTOMERS OF THE DISTRIBUTOR FOR ANY OF THE FOREGOING ITEMS. The
Distributor shall indemnify the Company against any such claims from its
customers.
-- If the Company furnishes the Distributor with advice or other assistance
concerning any Product, systems or work which is not required pursuant to
this Agreement, the furnishing of such advice or assistance will not subject
the Company to any liability, whether in contract, indemnity, warranty, tort
(including negligence), delict, quasi-delict, strict liability or otherwise.
-- In no event, whether as a result of breach of contract, indemnity, warranty,
tort (including negligence), strict liability or otherwise shall the Company
be liable for any loss or damage to the property of the Distributor which is
recoverable from insurance maintained by the Distributor, and the Distributor
waives rights of recovery against the Company for such loss or damage to the
extent covered by such insurance.
-- As used in this Section 11, the term "Company" shall include GE
Petrochemicals, Inc., General Electric Company, its affiliated companies (as
presently or hereafter constituted) and directors, officers, employees,
agents, vendors, subcontractors, or suppliers of General Electric Company and
its affiliated companies.
-- The provisions of this Section 11 shall not relieve the Company of any
obligations under the "Warranties" and "Patents" Articles included in the
Conditions of Sale.
-- THE DISTRIBUTOR HAS NO AUTHORIZATION TO MAKE ANY REPRESENTATION, STATEMENT
OR WARRANTY ON BEHALF OF THE COMPANY RELATING TO ANY PRODUCT SOLD HEREUNDER
OTHER THAN EXPRESSLY PROVIDED BY THE TERMS OF THE WARRANTY AND LIMIT OF
LIABILITY IN THIS SECTION 11. IF THE DISTRIBUTOR, NEVERTHELESS DOES MAKE ANY
SUCH REPRESENTATION, STATEMENT OR WARRANTY, THE SOLE RESPONSIBILITY THEREFOR
SHALL BE THAT OF THE DISTRIBUTOR.
9
10
12. TERMINATION
-- This Agreement may be terminated:
-- By an agreement in writing between the Company and the Distributor.
-- By either party at will, with or without cause, upon not less than
sixty (60) days' notice in writing.
-- In addition, by the Company immediately upon notice to the Distributor
in the event:
- The Distributor attempts to assign this Agreement or any rights
hereunder without the Company's prior written consent;
- There is a change in the control or management of the Distributor
unacceptable to the Company;
- The Distributor ceases to function as a going concern or
substantially ceases to conduct its operations in the normal course
of business as a distributor;
- A receiver for the Distributor is appointed, or applied for, or the
Distributor otherwise takes advantage of any insolvency laws;
- The Distributor materially breaches this Agreement or acts in any
manner deemed by the Company in its sole and absolute opinion to be
detrimental to the best interests of the Company;
- The Distributor, without the prior written consent of the Company,
sells or attempts to sell Product to customers located outside of
the territory;
- The Distributor, without the prior written consent of the Company,
sells or attempts to sell Product to Retained Accounts;
- The Distributor's activities (under this Agreement) in the Territory
require it to qualify to do business under the laws of the
jurisdiction(s) where such activities are conducted, or to fulfill
any registration requirements in the Territory, and the Distributor
either fails to so qualify or register or, having qualified,
subsequently ceases to qualify or register; or
- The Company concludes in its sole and absolute opinion that the
Distributor has failed to meet its obligations under Section 10
herein.
Without limitation, the foregoing events shall be deemed to be just
cause for termination by the Company.
-- The Distributor shall in no event be deemed a dealer or franchisee for
purposes of any law protecting the same. The Distributor hereby waives the
protections afforded by any such laws and waives any right to any claim
arising with respect to any termination under this Agreement, whether under
tort or other theory, except under a theory of breach of the express terms of
this Agreement.
10
11
13. RIGHTS AND OBLIGATIONS UPON EXPIRATION OR TERMINATION
--Within thirty (30) clays after the expiration or termination of this
Agreement, The Company may, at its option, repurchase from the Distributor, at
the net price paid by the Distributor plus actual transportation costs paid
thereon, less a fair adjustment for obsolescence and physical condition, any or
all of said Product and any usable advertising and promotional materials.
-- Upon expiration or termination of this Agreement, the Distributor shall cease
to use the name and trademarks of General Electric Company and GE
Petrochemicals, Inc., including removal of the words GE or General Electric
or GE Petrochemicals from all buildings under the control of the Distributor.
The Distributor shall ensure such cessation of use and removal by all persons
claiming to have received the right to such use from the Distributor.
-- The acceptance of any order from, or the sale of any Product to the
Distributor, after the expiration or termination of this Agreement shall not
be construed as a renewal or extension thereof nor as a waiver of
termination. In the absence of a written agreement to the contrary signed by
the Company, all such transactions shall be governed by the Conditions of
Sale.
-- After the date for termination of the distributorship is established by
notice or agreement, or within thirty (30) days prior to its expiration
(unless a new written distributorship agreement relating to said Product
shall then be in effect), the Company shall be obligated to deliver, and the
Distributor shall be obligated to accept, only such Product, in the quantity
ordered on a monthly basis during the preceding 12 months, as the Distributor
shall have ordered from the Company prior to thirty (30) days before the
effective date of expiration; provided, however, that in no event shall the
Company be obligated to deliver, or the Distributor obligated to accept, any
said Product after the date of such termination or expiration.
-- Neither the Company nor the Distributor shall be liable to the other by
reason of termination, expiration, or non-renewal of this Agreement, 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
Company or the Distributor or otherwise.
14. RELEASE OF CLAIMS
IN CONSIDERATION OF THE EXECUTION OF THIS AGREEMENT BY THE COMPANY, THE
DISTRIBUTOR HEREBY RELEASES THE COMPANY FROM ALL CLAIMS, DEMANDS, CONTRACTS
AND LIABILITIES, IF ANY THERE BE, RELATING TO THE DISTRIBUTION OF THE PRODUCT
AS OF THE DATE OF EXECUTION OF THIS AGREEMENT BY THE DISTRIBUTOR, EXCEPT
11
12
INDEBTEDNESS WHICH MAY BE OWING AND CLAIMS FOUNDED UPON A WRITTEN CONTRACT
SIGNED ON BEHALF OF THE COMPANY. IN ANY EVENT, CLAIMS BY EITHER PARTY OF ANY
NATURE UNDER OR ARISING OUT OF THIS AGREEMENT NOT SPECIFICALLY MADE IN
WRITING TO THE OTHER PARTY WITHIN ONE YEAR FROM THE EXPIRATION OF THIS
AGREEMENT SHALL BE DEEMED WAIVED, EXCEPTING CLAIMS MADE DEFENSIVELY BY THE
COMPANY OR THE DISTRIBUTOR IN CONNECTION WITH LITIGATION COMMENCED AGAINST
IT.
15. FAILURE TO ENFORCE CLAIMS
The failure of either party to enforce at any time or for any period of time
the provisions hereof in accordance with its terms shall not be construed to
be a waiver of such provisions or of the rights of such party thereafter to
enforce each and every such provision.
16. ARBITRATION
-- All disputes arising in connection with this Agreement that cannot be
settled by friendly negotiation shall be finally settled by arbitration under
the American Arbitration Association Commercial Arbitration Rules ("AAA
Rules"). In the event of any, conflict between the AAA Rules and this
Agreement, the provisions of this Agreement shall govern. The arbitral
tribunal shall consist of three arbitrators, one appointed by the Claimant in
the Request for Arbitration and one appointed by the Respondent in the
Answer.
-- The arbitrators so selected shall, within sixty (60) days of the date of
appointment of the second arbitrator, agree on a third arbitrator. If any of
the arbitrators shall not be appointed within the time limits specified
above, such arbitrator shall be appointed by the American Arbitration
Association at the written request of any party.
-- The arbitration proceedings shall take place in New York, New York.
-- The award of the arbitrators shall be by majority vote and shall be in
writing, shall set forth the facts found by the arbitrators to exist, and
shall state their determination. The arbitrators are authorized to grant
pre-award and post-award interest at commercial rates. NOTWITHSTANDING OTHER
PROVISIONS OF THIS AGREEMENT WHICH MAY BE INTERPRETED TO THE CONTRARY, THE
ARBITRATORS APPOINTED HEREIN SHALL NOT HAVE THE AUTHORITY TO GRANT PUNITIVE
DAMAGES TO EITHER PARTY. The costs of arbitration, including reasonable legal
fees, shall be borne by either or both of the parties in whatever proportion
as the arbitral tribunal may award.
-- The award of any such arbitral tribunal shall be final and judgment upon the
award may be entered in any competent court or application may be made to any
12
13
competent court for judicial acceptance or confirmation of the award. Neither
party shall seek recourse to a court of law to appeal for the revision of
the award.
17. NOTICES
-- Any notice, approval, consent or other communication required or permitted
under this Agreement shall be in writing, in the English language, and shall
be deemed to be validly given and effectively served upon when (1) delivered
personally, (2) mailed by registered or certified mail, or (3) transmitted by
facsimile with a confirming copy sent by overnight mail or courier service to
the parties at the addresses indicated in this Agreement (in the case of the
Company, to the attention of the General Manager, GE Petrochemicals, Inc. Fax
No.: 000-000-0000). Either party may change its address by giving written
notice thereof to the other party. Notice given by a party's counsel shall be
considered notice given by that party.
-- The Distributor agrees to provide immediate written notice to the Company
upon the occurrence of any of the following:
-- Any employee or official of any government entity, or any member of the
immediate family of any employee or official of any government entity
becomes an employee, consultant, or owner (directly or indirectly) of the
Distributor's organization;
-- The Distributor, its parent, its subsidiaries, its officers, managers, or
Company account employees become defendants in any criminal proceedings,
or the subject of any criminal investigation by any law enforcement
agency, commission, task force or grand jury; or
-- The Distributor, its parent, its subsidiaries, its officers, managers or
Company account employees become parties to any litigation (civil law
suits and arbitrations) which involve allegations of any of the following:
- Breach of dealer, distributor, or sales representative agreement;
- Failure to pay commissions, finder's fees or similar compensation;
- Fraud;
- False statements;
- False advertising or labeling;
- Failure to pay for goods delivered;
- Bribery, improper influence, or conflict of interest; or
- Monopoly, restraint of trade, or antitrust conspiracy.
The foregoing notice requirements are in addition to any other notices
required herein, imposed or implied by law or appropriate under the
circumstances.
13
14
18. PERFORMANCE REVIEW
The Distributor shall cooperate with the Company in establishing annual sales
goals and plans for the distribution of Product. On a semi-annual basis, the
Company and Distributor shall review the Distributor's performance and any
change in its sales, inventory, or customer accounts that is likely to affect
the Distributor's performance under this Agreement. Deficient performance may
subject the Distributor to termination pursuant to the provisions of Section
12 hereof.
19. EXECUTION AND MODIFICATION
-- This Agreement contains the entire and only agreement between the parties
with respect to the sale to and purchase of the Product. Any representations
or terms and conditions relating to transactions within the scope of this
Agreement which are not incorporated or referenced herein shall not be
binding upon either party.
-- As of its effective date, this Agreement wholly cancels, terminates and
supersedes any agreement heretofore entered into between the parties with
respect to the Product. This Agreement shall not become effective or binding
upon the Company until signed by an authorized executive of GE
Petrochemicals, Inc.
-- No change, modification, extension, renewal, ratification, rescission,
termination, notice of termination, discharge, abandonment or waiver of this
Agreement or any of the provisions hereof nor any representation, promise or
condition relating to this Agreement shall be binding upon the Company unless
made in writing and signed by an authorized executive of GE Petrochemicals,
Inc.
IN WITNESS WHEREOF, this Agreement has been executed by both parties.
GE PETROCHEMICALS, INC. JLM MARKETING, INC.
By /s/ By /s/ Xxxx Xxxxxxxxx
--------------------------------- --------------------------------
(Print or Type Name) (Print or Type Name)
GM, Global Sourcing & Petrochemicals Xxxx Xxxxxxxxx, Pres.
------------------------------------ --------------------------------
(Title) (Title)
4/11/97 0407.97
------------------------------------ --------------------------------
(Date) (Date)
14
