EXHIBIT 10.1
DISTRIBUTION AGREEMENT
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THIS AGREEMENT is made as of April 1, 1997 between Epitaxx, Inc., a
Delaware corporation, of 0 Xxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxx Xxxxxx, X.X.X. (the
"Company") and Nippon Sheet Glass Co., Ltd., a corporation organized under the
laws of Japan, of NSG Tokyo Xxxx., 0-0, 0-xxxxx, Xxxxxx, Xxxxxx-xx, Xxxxx 000
Xxxxx (the "Distributor").
WHEREAS,
(A) As a seller of the Company Products (as hereinafter defined) in the
Territory (as hereinafter defined) the Distributor is experienced in their
sale and distribution in the Territory.
(B) The Company requires the assistance of the Distributor to distribute
the Company Products in the Territory.
NOW IT IS HEREBY AGREED:
1. In this Agreement:
(a) "Company Products" means all products manufactured by the Company;
(b) "Territory" means Japan.
2. (a) This Agreement shall come into force on the date hereof and shall
continue until terminated by the agreement of the parties or by written notice
from either party to the other pursuant to Clause 2(b).
(b) Either party may terminate this Agreement, by written notice to
the other given at least 90 days before the proposed termination date, during
the period beginning on the date the Distributor ceases to own, directly or
indirectly, at least 30% of the capital stock of the Company.
3. The Company hereby grants to the Distributor the right while this
Agreement is in force, to purchase Company Products from the Company for resale
in the Territory. This right shall be exclusive, even as to the Company.
4. (a) Orders for the Company Products shall be made by the Distributor
through the Company at its main place of business or at such address as may
subsequently be notified by the Company and, subject to availability, the
Company shall sell the Company Products to the Distributor in accordance with
those orders at such prices as may be agreed upon by the parties from time to
time, on a case by case basis.
(b) The Company will endeavor to fulfill the orders of the Distributor
for the Company Products with all reasonable dispatch, but shall not be liable
in any way for any loss or delay howsoever arising.
(c) All specifications of Company Products shall be furnished by the
Company to the Distributor for purposes including, but not limited to, marketing
and labeling.
(d) The Company shall provide the Distributor with shipping dates,
which will be the best estimates of time of arrival available or known to the
Company.
5. Except as otherwise provided herein, the terms and conditions of the
transactions contemplated hereunder shall be as agreed between the parties from
time to time.
6. The Distributor is free to determine its own selling prices for the
Company Products subject to the reporting requirements of Section 7(f).
7. The Distributor hereby undertakes and agrees with the Company that it
will, at all times during the continuance in force of this Agreement, observe
and perform the terms and conditions set out in this Agreement, and in
particular:
(a) will use at all times its best endeavors to promote and extend
sales of the Company Products throughout the Territory to potential purchasers
thereof and work diligently to obtain orders therefor;
(b) will, in all correspondence and other dealings relating, directly
or indirectly, to the sale or other disposition of the Company Products by the
Distributor, clearly indicate that it is acting as principal;
(c) will not incur any liability on behalf of the Company or in any
way pledge or purport to pledge the Company's credit or make any contract
binding upon the Company without the Company's prior written approval of the
terms thereof;
(d) will immediately bring any improper or wrongful use in the
Territory of the Company's patents, trademarks, emblems, designs, models or
other similar intellectual or commercial property rights that comes to its
notice to the attention of the Company and will, in and about the execution of
its duties, use every effort to safeguard the property rights and interests of
the Company, and will assist the Company, at the request and expense of the
Company, in taking all steps to defend the rights of the Company;
(e) will promptly bring to the notice of the Company any information
received by it that is likely to be of interest, use or benefit to the Company
relating to the marketing of the Company Products in the Territory; and
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(f) will report to the Company, as required by the Company with
respect to its activities, including but not limited to sales calls, leads
follow up, pricing structures and end user price by transaction; and
(g) will not assign, transfer, charge, or in any manner make over, or
purport to assign, transfer, charge or make over, this Agreement, or its rights
hereunder, or any part hereof without the written consent of the Company.
8. (a) The Company shall provide the Distributor with promotional
materials at cost.
(b) The Company shall provide the Distributor with any information and
advice generally provided to other distributors in connection with marketing and
advertising the Company Products that the Distributor reasonably requests.
(c) On the expiration or termination of this Agreement, the
Distributor shall be entitled to continue to sell all unsold Company Products
then in its possession.
(d) The Company will extend its normal warranty of the product to the
Distributor for a date of one year from the time the product is delivered to the
customer. This extended warranty will be effective as long as the time between
when the product is shipped from the Company and the time when the Distributor
delivers the product to the customer is less than one year.
(e) In order for the extended warranty set forth in Section 8(d) to
apply, the Distributor must have proper handling and packing procedures. These
procedures are subject to approval by the Company and updated periodically. All
personnel who handle parts must be trained using these procedures. The
Distributor will implement a Quality System that will include a section on the
handling and packing of material. The Company recommends that the Distributor
applies for certification under the ISO 9000 system.
9. Nothing in this Agreement shall constitute or be deemed to constitute a
partnership between the parties hereto, or constitute or be deemed to constitute
the Distributor as agent of the Company for any purpose whatever, and the
Distributor shall have no authority or power to bind the Company or to contract
in the name of and create a liability against the Company in any way or for any
purpose.
10. All notices, requests, consents and other communications hereunder
shall be in writing, shall be addressed to the receiving party's address set
forth below or to such other address as a party may designate by notice
hereunder, and shall be either (i) delivered by hand, (ii) made by telex,
telecopy or facsimile transmission, (iii) sent by overnight courier, or (iv)
sent by registered or certified mail, return receipt requested, postage prepaid.
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If to the Company:
Epitaxx, Inc.
0 Xxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx Xxxxxxxx, Chief Executive Officer
If to the Distributor:
Nippon Sheet Glass Co., Ltd.
NSG Tokyo Xxxx.
0-0, 0-xxxxx, Xxxxxx
Xxxxxx-xx, Xxxxx, 000 XXXXX
Attention: Xxxxx Xxxxxxxx, General Manager, Fiber Optics Division
All notices, requests, consents and other communications hereunder shall be
deemed to have been given either (i) if by hand, at the time of the delivery
thereof to the receiving party at the address of such party set forth above,
(ii) if made by telex, telecopy or facsimile transmission, at the time that
receipt thereof has been acknowledged by electronic confirmation or otherwise,
(iii) if sent by overnight courier, on the next business day following the day
such notice is delivered to the courier service, or (iv) if sent by registered
or certified mail, on the 5th business day following the day such mailing is
made.
11. This Agreement embodies the entire agreement and understanding between
the parties hereto with respect to the subject matter hereof and supersedes all
prior oral or written agreements and understandings relating to the subject
matter hereof. No statement, representation, warranty, covenant or agreement of
any kind not expressly set forth in this Agreement shall affect, or be used to
interpret, change or restrict, the express terms and provisions of this
Agreement.
12. The terms and provisions of this Agreement may be modified or amended
only by written agreement executed by all parties hereto.
13. No waiver of the terms and provisions of this Agreement or consent for
the departure therefrom shall be deemed to be or shall constitute a waiver or
consent with respect to any other terms or provisions of this Agreement, whether
or not similar. Each such waiver or consent shall be effective only in the
specific instance and for the purpose for which it was given, and shall not
constitute a continuing waiver or consent.
14. The rights and obligations under this Agreement may not be assigned by
either party hereto without the prior written consent of the other party.
15. All statements, representations, warranties, covenants and agreements
in this Agreement shall be binding on the parties hereto and shall inure to the
benefit of the respective successors and permitted assigns of each party hereto.
Nothing in this Agreement shall be
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construed to create any rights or obligations except among the parties hereto,
and no person or entity shall be regarded as a third-party beneficiary of this
Agreement.
16. This Agreement and the rights and obligations of the parties hereunder
shall be construed in accordance with and governed by the law of the State of
New Jersey, without giving effect to the conflict of law principles thereof.
17. Any controversy, dispute or claim arising out of or in connection with
this Agreement, or the breach, termination or validity hereof, shall be settled
by final and binding arbitration to be conducted by an arbitration tribunal in
the State of New Jersey, pursuant to the rules of the American Arbitration
Association. The arbitration tribunal shall consist of three arbitrators. The
party initiating arbitration shall nominate one arbitrator in the request for
arbitration and the other party shall nominate a second in the answer thereto
within thirty (30) days of receipt of the request. The two arbitrators so named
will then jointly appoint the third arbitrator. If the answering party fails to
nominate its arbitrator within the thirty (30) day period, or if the arbitrators
named by the parties fail to agree on the third arbitrator within sixty (60)
days, the office of the American Arbitration Association Trenton, New Jersey
shall make the necessary appointments of such arbitrator(s). The decision or
award of the arbitration tribunal (by a majority determination, or if there is
no majority, then by the determination of the third arbitrator, if any) shall be
final, and judgment upon such decision or award may be entered in any competent
court or application may be made to any competent court for judicial acceptance
of such decision or award and an order of enforcement. In the event of any
procedural matter not covered by the aforesaid rules, the procedural law of the
State of New Jersey shall govern.
18. Any legal action or proceeding with respect to this Agreement shall be
brought in the courts of the State of New Jersey or of the United States of
America for the District of New Jersey. By execution and delivery of this
Agreement, each of the parties hereto accepts for itself and in respect of its
property, generally and unconditionally, the jurisdiction of the aforesaid
courts. Each of the parties hereto irrevocably consents to the service of
process of any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by certified mail, postage prepaid, to the party
at its address set forth in Section 5(a) hereof.
19. In the event that any court of competent jurisdiction shall determine
that any provision, or any portion thereof, contained in this Agreement shall be
unenforceable in any respect, the remaining provisions of this Agreement shall
nevertheless remain in full force and effect.
20. No failure or delay by a party hereto in exercising any right, power or
remedy under this Agreement, and no course of dealing between the parties
hereto, shall operate as a waiver of any such right, power or remedy of the
party. No single or partial exercise of any right, power or remedy under this
Agreement by a party hereto, nor any abandonment or discontinuance of steps to
enforce any such right, power or remedy, shall preclude such party from any
other or further exercise thereof or the exercise of any other right, power or
remedy hereunder. The election of any remedy by a party hereto shall not
constitute a waiver of the right of such party to pursue other available
remedies. No notice to or demand on a party not expressly required under this
Agreement
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shall entitle the party receiving such notice or demand to any other or further
notice or demand in similar or other circumstances or constitute a waiver of the
rights of the party giving such notice or demand to any other or further action
in any circumstances without such notice or demand.
21. This Agreement may be executed in one or more counterparts, and by
different parties hereto on separate counterparts, each of which shall be deemed
an original, but all of which together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, Epitaxx and the Distributor have caused this Agreement
to be executed by their duly authorized officers, under seal, as of the date
first specified above.
EPITAXX, INC.
By: /s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Chief Executive Officer
NIPPON SHEET GLASS CO., LTD.
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx,
Title: General Manager, Fiber Optics Division
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