EXHIBIT 10.36
DISTRIBUTORSHIP AGREEMENT
THIS DISTRIBUTORSHIP AGREEMENT (this "Agreement") is made as of this
22nd day of February, 2000, effective as of March 1, 2000, by and between UNION
MARITIMA INTERNACIONAL, S.A., a Spanish company ("UMAR," together with its
affiliates as they become parties to this Agreement from time to time, are
herein referred to as "SUPPLIERS"), and DEVCON INTERNATIONAL CORP., a Florida
corporation, ("DEVCON") and its wholly owned subsidiaries listed on EXHIBIT A
hereto (the "SUBSIDIARIES") (Devcon and the Subsidiaries are together herein
referred to as the "DISTRIBUTORS" and each individually as a "DISTRIBUTOR").
RECITALS
A. Suppliers manufacture and sell bagged cement and bulk cement (the
"PRODUCTS").
B. Distributors desire to purchase and resell the Products in the
Territory, as hereinafter defined, on an exclusive basis (except for St. Kitts
and St. Maarten/Saint Xxxxxx, which shall be on a non-exclusive basis), upon the
terms and conditions contained herein.
C. Suppliers, Devcon and/or certain of their affiliates have entered
into that certain Asset Purchase Agreement dated November 22, 1999 (the "Asset
Purchase Agreement") wherein Devcon and/or its affiliates are selling certain
assets to Suppliers and/or their affiliates. A condition to the Asset Purchase
Agreement is the agreement by Suppliers to supply and by Distributors to
purchase the Products based on the terms and conditions set forth herein.
D. Suppliers and Distributors wish to enter into this Agreement in
order to establish terms, conditions and procedures for the distribution by
Distributors of the Products.
AGREEMENTS
NOW, THEREFORE, for and in consideration of the mutual promises herein
contained and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, Suppliers and Distributors, intending to be
legally bound hereby, agree as follows:
1. RECITALS. The foregoing recitals are adopted as part of this
Agreement.
2. APPOINTMENT AS EXCLUSIVE DISTRIBUTOR.
(a) Upon the terms and conditions contained herein, UMAR
hereby appoints the Distributors, on behalf of all the Suppliers, as their
exclusive distributor of the Products on the islands of Saint Xxxxxx, Saint
Croix, Antigua and Barbuda, the Commonwealth of Dominica and Saba (collectively,
the "TERRITORY") and as a non-exclusive distributor in St. Kitts and St.
Maarten/Saint Xxxxxx. If and when the Suppliers elect to exercise their option
to purchase all of the assets of Caribbean Construction & Development, Ltd.
("CCD") as set forth in Paragraph 1.5 of the Asset Purchase Agreement (the
"Dominica Option"), the Commonwealth of Dominica
shall no longer be included in the definition of "Territory." The Suppliers
shall not sell or otherwise distribute their Products to anyone other than the
Distributors in the Territory; provided, however, that to the extent any
Distributor is no longer party to this Agreement in accordance with the terms
hereof, the Suppliers may thereafter distribute the Products to other persons
for distribution in the region of the Territory previously covered by the
terminated Distributor.
(b) The Distributor accepts such appointment for the Term (as
defined herein) of this Agreement and upon the conditions herein set forth.
3. DUTIES OF UMAR. In connection with the appointment of the
Distributors, UMAR agrees to, and agrees to cause the Suppliers to:
(a) maintain sufficient inventories of Products as may be
necessary to meet the demands of the Distributor and to serve the trade in the
Territory;
(b) fulfill all orders received by it from the Distributor on
a timely basis;
(c) produce Products that shall have quality characteristics
and specifications at least equal to ASTM C150 meeting the characteristics for
Portland -- Grey Type I Cement, with an Na2O equivalent of maximum 0.6%; and
(d) comply with all applicable laws, rules and regulations in
all material respects.
4. DUTIES OF DISTRIBUTOR. In connection with the appointment of the
Distributors, the Distributors agree to:
(a) keep UMAR informed of potential sales and problems
pertaining to the Products;
(b) comply with all applicable laws, rules and regulations in
all material respects;
(c) generally do all things reasonably necessary or proper to
further and preserve the goodwill and reputation of the Suppliers; and
(d) make reasonable efforts to maximize the sales of the
Products.
5. EFFECTIVE DATE AND TERM. This Agreement shall take effect on the
date first set forth above (the "EFFECTIVE DATE"). Unless sooner terminated in
accordance with the terms of this Agreement, this Agreement shall remain in
effect for the period (the "Term") of one (1) year from the Effective Date. The
term of this Agreement shall renew automatically for additional one (1) year
periods unless terminated as set forth herein. Any party may terminate this
Agreement by giving no less than ninety (90) days prior written notice,
provided, however, that (i) a termination by any Distributor shall have no
effect on the terms of this Agreement as they
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apply to the remaining parties and (ii) a termination by Suppliers with respect
to a Distributor shall have no effect on the terms of this Agreement as they
apply to the remaining parties.
6. PURCHASE PRICES. Each Distributor shall be charged and agrees to pay
the rates set forth on EXHIBIT A hereto, for its purchase of the Products;
provided, however, that the prices to be charged for jumbo bags or for bulk
customers shall be negotiated on a per-customer basis. All prices may be changed
by Supplier upon fifteen (15) days advance written notice thereof; provided,
however, that the Supplier will maintain enumerated prices for specific sales
contracts during limited periods as shall be agreed to between the parties. The
purchase prices shall be expressed in U.S. Dollars. Invoicing and payment shall
be done in U. S. Dollars for all sales except for those in Antigua and Barbuda
and the Commonwealth of Dominica, in which case they shall be in Eastern
Caribbean Units. The Distributor and the Supplier shall equally bear any changes
in the exchange rates for pending invoices. The rates charged shall be adjusted
on a dollar-for-dollar basis (i.e. either increased or decreased, as
appropriate) based upon any changes made to import duties being paid by the
Supplier relating to the Products in question from those in place as of the date
hereof with respect to products imported from Venezuela.
7. TAXES AND OTHER CHARGES. In addition to the applicable purchase
prices, Suppliers shall separately invoice for, and Distributors shall pay, all
sales, use, excise, value added, gross receipt, turnover and other taxes and
charges imposed by law or required by any government to be paid or collected by
Distributor in connection with the purchase, delivery, sale or use of the
Products pursuant to this Agreement. Except as contemplated in the final
sentence of Paragraph 6 hereof, the foregoing shall not require Distributors to
pay Suppliers' import duties and other importation tax or income taxes based
upon Suppliers' net income from this Agreement.
8. PAYMENT TERMS. All payments due Suppliers from Distributors under
this Agreement shall be paid to the applicable Supplier by check or wire
transfer. Invoices may be rendered by the Supplier at any time after the date of
Delivery, as defined below. Payment shall be made in U.S Dollars or Eastern
Caribbean Units, as provided in Paragraph 6 hereof, within forty-five (45) days
following the date of Delivery. Each shipment shall constitute an independent
transaction and Distributors shall pay the invoice for each such transaction
strictly in accordance with these payment terms. Upon the occurrence of a
payment default with respect to any shipment of Products hereunder, Suppliers
shall also be entitled to cease shipment of any additional Products until such
default is remedied.
9. DELIVERY. As used in this Agreement, "Delivery" shall mean the time
upon which the Products are removed by the applicable Distributor from the
applicable Supplier's cement terminal, or as shall be agreed to otherwise by the
parties from time to time.
10. RISK OF LOSS AND PASSAGE OF TITLE. Risk of loss and title shall
pass to Distributors at the time of Delivery of the Products.
11. ADDITIONAL SIGNATORIES. UMAR shall cause each of its affiliates
which are formed for the purpose of supplying Products hereunder to become a
signatory of this Agreement as a Supplier upon formation of such entity.
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12. COMPETITION. Except as otherwise provided by this Agreement, the
Suppliers shall not, during the Term hereof, either directly or indirectly,
engage in any manner in the distribution and/or sale of any Products in the
Territory, except in St. Xxxxxx/St. Maarten.
13. INDEPENDENT CONTRACTOR. The Suppliers, on the one hand and the
Distributors, on the other hand, (i) are independent contractors with respect to
each other and neither shall be deemed to be the agent or representative of the
other for any purpose, (ii) shall not make any warranty or representation or
incur any obligation, liability or indebtedness whatsoever on the other's behalf
and (iii) shall not be liable for, and shall indemnify and hold the other
harmless from and against, any and all claims made against it that arise out of
any act or failure to act by the other, or by any of its constituents, agents or
employees.
14. INDEMNIFICATION. Suppliers will indemnify and hold harmless the
Distributors from and against any and all claims, suits, actions, liabilities
and/or damages which are attributable to the Products, PROVIDED, HOWEVER, that
the Supplier shall not be obligated to indemnify the Distributors from and
against any and all claims, suits, actions, liabilities and/or damages to the
extent that they arise as a result of the gross negligence or intentional
misconduct of any Distributor.
15. WAIVER. Neither the failure nor any delay on the part of either
party to exercise any right, remedy, power or privilege under this Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any right, remedy, power or privilege preclude any other or further exercise of
the same or of any other right, remedy, power or privilege, nor shall any waiver
of any right, remedy, power or privilege with respect to any occurrence be
construed as a waiver of such right, remedy, power or privilege with respect to
any other occurrence. No waiver shall be effective unless it is in writing and
is signed by the party asserted to have granted such waiver.
16. NOTICES. All notices and other communications under this Agreement:
(a) shall be made in writing signed by the authorized agent of the party making
the same, (b) shall be delivered by personal delivery, confirmed telephonic
facsimile transmission, or international commercial express courier, such as
Federal Express or DHL, and (c) shall be deemed effective upon receipt. The
addresses for all notices and communications (other than purchase orders and
shipping releases) are as follows:
If to Supplier: Union Maritima Internacional, X.X.
Xxxxxxx, 00 - xxxxxx 0
00000 XXXXXX - XXXXX
Facsimile x00000000000
Attn: Xxxxxxx Xxxxxxxxxx Xxxx Xx Xxxxxx
0
With a copy to: Holland & Knight LLP
000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile (000) 000-0000
Attn: Xxxxxx Xxxxxx, Xx.
If to Distributors: Devcon International Corp.
0000 X. Xxxxxxx Xxxxxx Xxxxx
Xxxxx #000
Xxxxxxxxx Xxxxx, Xxxxxxx 00000
Facsimile (000) 000-0000
Attn: Jan Norelid
With a copy to: Xxxxxxxxx Traurig, P.A.
0000 Xxxxxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000
Facsimile (000) 000-0000
Attn: Xxxxxx Xxxxxxxx, Esq.
Either party may change the address and facsimile telephone number to which
notices and other communications are to be sent, and may add or delete
recipients for notices and other communications, by sending the other party
notice of the changes in accordance with the notice provisions of this
paragraph. In addition, Suppliers may change the address for purchase orders and
shipping releases by notifying Distributors in writing of the changed address in
accordance with the notice provisions of this paragraph.
17. LANGUAGE. English is the official and exclusive language under this
Agreement. All notices and other communications between the parties shall be in
English. All dispute resolution proceedings shall be conducted and recorded in
English.
18. ASSIGNMENT. Neither party shall assign or delegate any right,
interest or obligation under this Agreement, except that (i) Suppliers may
subcontract with third parties for any of the Products (upon giving notice
thereof to the Distributors), (ii) any Distributor may do so upon getting the
consent of UMAR and (iii) the Supplier may do so upon getting the consent of
Devcon. No assignment, delegation or subcontract by either party shall relieve
the assigning, delegating or subcontracting party from its obligations and
liabilities under this Agreement. Any attempted assignment or delegation in
contravention of this prohibition shall be void and shall constitute a default
under this Agreement.
19. FORCE MAJEURE. Each of the Suppliers and the Distributors shall be
excused from its obligations hereunder, and shall have no liability for any
resulting loss or damage, in the event and to the extent that its performance is
delayed or prevented by any event or circumstance reasonably beyond its control,
including but not limited to, fire, floods, epidemics, explosion, embargo, acts
or requirements of any government in its sovereign capacity, acts of God, war,
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strikes, walkouts, and riots or other civil disturbances, inability to secure
raw material or transportation facilities, or for any act or omission of
carriers or suppliers. Delay in or prevention of performance of either party
shall be excused under this Paragraph 19 only for the period during which such
cause continues, and only if the party whose performance is delayed or prevented
gives written notice thereof to the other party within ten (10) days of the
event causing such delay or prevention. The parties hereto shall not have the
right to terminate this Agreement solely as a result of any act or event
described in this Paragraph 19.
20. WAIVER. No course of dealing, course of performance, or failure of
either party strictly to enforce any term, right or condition of this Agreement
shall be construed as a waiver of such term, right, or condition or affect the
right to enforce that term, right or condition in the future, nor shall any
express waiver be construed as a continuing waiver of any such term, right or
condition.
21. GOVERNING LAW. The construction, interpretation and performance of
this Agreement shall be governed by the internal laws of the State of Florida
(without giving effect to their conflicts of laws provisions).
22. ENTIRE AGREEMENT. This Agreement, with all exhibits attached
hereto, together with the Asset Purchase Agreement, the Supply Agreement, the
Management Agreement and the License Agreement, all as executed by the Parties
as of the date hereof, constitute the entire agreement between the parties with
respect to its subject matter. All prior or contemporaneous oral and written
agreements, memoranda and representations (and any subsequent purchase order,
purchase order confirmation, or similar document) relating to sales of Products
during the term of this Agreement are superseded by this Agreement.
23. AMENDMENTS. This Agreement may be amended only by a subsequent
writing signed by authorized representatives of Devcon and UMAR, indicating an
intent to amend this Agreement.
24. SEVERABILITY. If a court of competent jurisdiction adjudges any
provision of this Agreement to be invalid or unenforceable, the remaining
provisions shall not be affected thereby, and the parties shall in good faith
attempt to amend this Agreement to eliminate such invalidity or
unenforceability, without thereby affecting the intent of the parties as
expressed herein.
25. CONFIDENTIALITY. Distributors and the Suppliers agree that all
confidential commercial, technical and other information provided hereunder by
either party to the other party will be used only for evaluation purposes or for
purposes of performance of this Agreement, shall be kept confidential by the
receiving party using the same standard of care as such receiving party uses to
protect its own similar confidential information, and shall not be sold or
disclosed in any manner to any third party by the receiving party. The
obligations under the preceding sentence do not apply to information which: (a)
was previously known to the receiving party free of any obligation to keep it
confidential; or (b) is or becomes publicly available by any means or medium
other than unauthorized disclosure; or (c) is independently developed by the
receiving party; or (d) is disclosed to third parties by the disclosing party
without restriction; or (e) is received from a third party whose disclosure
would not violate any confidentiality obligation.
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26. ARBITRATION.
(a) Any dispute, controversy or claim arising out of or
relating to this Agreement, or the breach, termination or validity of this
Agreement, which has not been resolved by a non-binding procedure, shall be
settled by arbitration in Miami, Florida (unless the applicable Supplier and
Distributor mutually agree in writing to another location), in accordance with
the Arbitration Rules of the American Arbitration Association then in effect,
except that the Suppliers and Distributors agree under any circumstances they
shall be permitted reasonable discovery of documents and depositions of an
adequate number of witnesses. Notwithstanding anything to the contrary in this
Agreement, the Suppliers and Distributors further agree that arbitration shall
not be utilized to determine any dispute, controversy or claim which requires a
third party's presence either as the co-respondent or as an indemnifier, unless
the third party agrees to be bound by the arbitration. Disputes described in the
preceding sentence shall be resolved through proceedings commenced and
prosecuted in a state or federal court in Miami, Florida.
(b) Within one week after the Supplier, on the one hand, or
the Distributor, on the other hand, requests arbitration and the other party
receives notice of such request, both parties shall supply the American
Arbitration Association with a list of qualifications for the arbitrators.
Within two weeks after receipt of the parties' lists of qualifications for the
arbitrators, the American Arbitration Association shall supply the parties with
a list of 21 potential arbitrators, and the Supplier, on the one hand, and the
Distributor, on the other hand, shall each be permitted to strike up to nine
proposed arbitrators and shall notify in writing the American Arbitration
Association of the party's decisions. Within two weeks after receipt of the
parties' decisions as to the acceptable potential arbitrators, the American
Arbitration Association shall appoint the three arbitrators from the group of
arbitrators which has not been stricken by either party.
(c) Resolution of disputes, controversies or claims shall be
determined by a majority vote of the arbitration panel. The Supplier, on the one
hand, and the Distributor, on the other hand, shall share equally the fees,
costs and expenses of the arbitration, unless the arbitrators modify the
allocation of such fees, costs and expenses because they have determined that
fairness dictates other than an equal allocation between the parties. Each party
shall be responsible for its own attorneys' fees, costs of its experts and
expenses of its witnesses, unless the arbitrators provide otherwise because they
have determined that fairness so dictates. Any award rendered shall be final,
binding and conclusive (without the right to an appeal, unless such appeal is
based on fraud by the other party in connection with the arbitration process)
upon the parties and any judgment on such award may be enforced in any court
having jurisdiction, unless otherwise provided by law. The party submitting such
dispute to arbitration shall inform the American Arbitration Association that
the parties have agreed: (i) to reasonable discovery pursuant to the rules then
in effect under the Federal Rules of Civil Procedure (as used in the United
States District Court for the Southern District of Florida) for a period not to
exceed 120 days prior to such arbitration and (ii) to require that the testimony
at the arbitration hearing be transcribed.
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27. EXHIBITS. All exhibits attached to this Agreement are hereby
incorporated into this Agreement and made a part of this Agreement.
28. COUNTERPARTS. This Agreement may be executed by each party upon a
separate counterpart, each of which shall be deemed an original and all of which
together shall constitute one agreement.
[Signatures appear on the next page]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed
by their duly authorized representatives as of the day and year first written
above.
UNION MARITIMA INTERNACIONAL, S.A.,
a Spanish company
By: /S/ XXXXXXX XXXXXXXXXX
------------------------------------------------
Name: Xxxxxxx Xxxxxxxxxx Xxxx xx Xxxxxx
Title: Managing Director
DEVCON INTERNATIONAL CORP., a Florida corporation
By: /S/ JAN NORELID
------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
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V.I. CEMENT & BUILDING PRODUCTS, INC., a Delaware
corporation
By: /S/ JAN NORELID
------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
BOUWBEDRIFJ BOVEN XXXXXX, N.V., a
Netherlands Antilles entity
By: /S/ JAN NORELID
------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
SOCIETE DES CARRIERES DE GRAND-CASE,
a French Antilles entity
By: /S/ JAN NORELID
------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
BOUWBEDRIFJ BOVEN XXXXXX XXXX, N.V.,
a Netherlands Antilles entity
By: /S/ JAN NORELID
------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
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ANTIGUA CEMENT, LTD., an Antigua and
Barbuda entity
By: /S/ JAN NORELID
------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
CARIBBEAN CONSTRUCTION & DEVELOPMENT, LTD., a
Commonwealth of Dominica entity
By: /S/ JAN NORELID
------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
CARIBBEAN MASONRY PRODUCTS LIMITED,
a St. Kitts entity
By: /S/ JAN NORELID
------------------------------------------------
Name: Jan Norelid
Title: Chief Financial Officer
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