Exhibit 10.24
CO-OPERATION AND SALES AGREEMENT
This Co-operation and Sales Agreement (the "Agreement") made and entered as of
this [ th ]day of July, 2001 by and between:
(1) Balantum Oy ("Newco"), a company organised and existing under the laws of
Finland (Business ID 1646698-0) having its registered domicile in the
City of Helsinki and its registered address at c/o Asianajotoimisto
Waselius & Wist Oy, Etelaesplanadi 24 A, 00130 Helsinki, Finland;
(2) Aquamax (International) Holding B.V., ("Aquamax"), a company organised
and existing under the laws of the Netherlands having its registered
domicile in the City of Amsterdam and its registered address at
Locatellikade 1, Parnassustoren, 1076 AZ Amsterdam, P.O. Box 7215, 1070
AE Amsterdam, the Netherlands; and
(3) Keeran Corporation N.V. ("Keeran"), a company organised and existing
under the laws of the Netherlands Antilles having its registered domicile
in the City of Willemstad and its registered address at World Trade
Center Curacao, Unit BC.II.01-04, Piscadera Bay, Willemstad, Curacao, the
Netherlands Antilles.
Aquamax and Keeran are collectively herein referred to as "AK".
WITNESSETH:
WHEREAS, Newco is the owner of the Newco Technology (as defined below);
WHEREAS, AK collectively is the rightful licensee of the Newco Technology within
the field of use of applications of the Newco Technology that: (i) have as their
sole purpose the desalination of seawater; and (ii) are not capable of
processing more than 1,000 cubic meters of seawater per day;
WHEREAS, Newco and AK wish to set out the terms of co-operation relating to the
utilisation of the Newco Technology, as well as the terms of the sale of heat
exchanger and other polymeric components, as between Newco and AK, required for
the manufacture of evaporators using the Newco Technology;
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein set forth and agreed, Newco and AK agree as follows:
1
1 DEFINITIONS
1.1 When used in this Agreement, unless expressly otherwise stated or evident
from the context wherein appearing, the following terms shall have the
following meanings:
Agreement shall have the meaning set forth in the
preamble;
EUR shall mean the currency of the European Union;
License Agreement shall mean the License Agreement between the
Parties of July [ ], 2001;
Newco Technology shall mean the patents listed on
Schedule 1 of this Agreement and any
improvements to be made during the term of
this Agreement, including any and all patents
arising out of such improvements;
Parties shall mean any one of Newco, Aquamax or
Keeran, as required by the context, and
"Parties" shall mean Newco, Aquamax and
Keeran;
Product(s) shall mean the object(s) of the sale and
purchase included but not limited to heat
exchanger and other polymeric components as
well as accessories and spare parts and
eventually turn key evaporator equipment; and
Rolling Forecasts shall mean forecasts provided by AK specified
in Section 5 below.
1.2 The singular form of any term used shall include the plural and vice
versa, and any reference to a numbered clause or to "hereto", "herein",
"above" or "below" shall be a reference to the relevant parts or
provisions of this Agreement.
2
2 CO-OPERATION
2.1 Newco agrees to co-operate with AK as follows:
(a) Newco shall offer for sale to AK, Products required by AK for the
marketing, selling and manufacturing of evaporators using the Newco
Technology on the terms and conditions set forth in this Agreement.
(b) Newco shall, on a case by case basis, offer for sale to AK turn-key
evaporators, if mutually and separately agreed between the Parties.
(c) Newco shall within its normal course of business assist AK to keep
the Newco Technology based technical capability up to date.
(d) Newco shall keep AK informed about the valid price list for the
Products as well as the delivery times for such Products.
2.2 AK shall co-operate with Newco as follows:
(a) AK shall, within its normal course of business, use its best
efforts to optimise the sale, marketing and promotion of
evaporators and other products utilising the Newco Technology.
(b) AK shall offer for sale only evaporators and other products
utilising the Newco Technology and undertakes not to sell or offer
for sale any other products or evaporators in competition with the
Newco Technology.
(c) AK shall as of November 12, 2001 and subsequently every third month
give Newco in writing a market feed-back, included but not limited
to prices, technical aspects and competitors of the Products.
3 PRODUCTS
3.1 This Agreement shall apply to the Products listed and defined in Schedule
2 hereto. New Products may be added by amending Schedule 2 whenever
agreed between the Parties in writing.
3.2 AK undertakes to purchase a yearly minimum amount of each Product as
specified in Schedule 2 hereto, subject, however, to the following:
(a) if the Products meet the requirements of AK's markets in a
competitive way the AK is bound to such minimum amounts of each Product.
If the yearly volume of AK's purchase orders for Product is smaller than
the yearly minimum purchase volume set out in Schedule 2 hereto, Newco
may cancel the exclusive rights.
(b) if the Products do not meet the requirements of AK's markets in a
competitive way, then AK is not bound to such yearly minimum purchase
volume set out in Schedule 2 hereto and Newco may cancel the exclusive
rights.
4 PRICES
4.1 Prices for the Products are provided in Schedule 2 hereto. All Prices are
fixed but shall be levied with VAT to the extent applicable.
3
4.2 Subject, however, to Section 4.1 above, Newco may at its discretion
adjust the prices every sixth month, the first time as of January 12,
2002.
4.3 All changes in Prices shall become effective upon agreement for all
orders whether confirmed or not but not yet delivered by Newco.
5 FORECASTS
5.1 AK shall provide Newco with Rolling Forecasts for the Products once a
year The first Rolling Forecast shall be provided by August 12, 2001.
5.2 The Parties acknowledge, that the Rolling Forecasts for the Products are
forecasts provided by AK laying out a time-table for future deliveries.
Newco and AK understand that such Rolling Forecasts for the Products are
non-binding estimates based on AK's assumptions at the time.
6 ORDERING
6.1 AK shall place written orders for the Products by post, e-mail or
facsimile. Newco shall forthwith send AK a written confirmation of the
orders for the Products.
6.3 Purchase orders shall state and include at least the amount of Products
to be delivered, the date of delivery and the delivery address.
7 TERMS OF DELIVERY AND PAYMENT
7.1 The Terms of Delivery for the Products shall be EXW [the relevant city to
be decided case by case] (Incoterms 2000).
4
7.2 Newco undertakes to pack the Products properly to withstand
transportation and when applicable, as required and instructed by AK.
Prices for the Products shall include the cost of packing and/or
protection required to prevent the damage to the Products during
transportation. Newco agrees to indemnify AK against any damage that the
Products may suffer due to improper packing.
7.3 All payments by AK shall be made in EUR against an invoice from Newco. AK
shall pay the Products within twenty-eight (28) days calculated from the
date of Newco's invoice. The Parties shall separately agree on terms of
payment securing the receivables of Newco
8 DELIVERY TIMES
8.1 K shall not be obliged to take the Products into its possession before
the agreed date of delivery. Partial deliveries are not allowed, unless
accepted by AK in writing prior to such delivery.
8.2 If Newco can not deliver the Products in accordance with the agreed
delivery times, then Newco shall, as soon as Newco becomes aware of the
delay or a possible or potential delay inform AK thereof in writing
stating the reason for the delay and propose a new date for delivery,
which shall not be unreasonably refused by AK.
8.3 In case of delay in delivery, Newco shall promptly take any and all
necessary actions in order to identify the cause(s) for such delay as
well as in order to prevent such delays from reoccurring.
9 COMPETITION
9.1 During the term of this Agreement AK shall not, without the prior written
consent of Newco, directly or indirectly market, sell or offer for sale
any products or evaporators not utilising the Newco Technology.
10 CONFIDENTIALITY
10.1 The Parties agree to keep strictly confidential and not to disclose to
any third party any technical, economic, financial, marketing or other
information relating to the Newco Technology, unless disclosure of such
information is expressly permitted by this Agreement, approved to be
disclosed by the Parties, or required to be disclosed by mandatory law,
and then only to the extent necessary.
5
10.2 The Parties agree that they shall not use any information obtained from
each other for any purpose whatsoever except in a manner provided for by
this Agreement or by separate agreement between the Parties.
10.3 The confidentiality obligation undertaken by the Parties pursuant hereto
shall not apply to any such information obtained from a Party which is or
becomes published or otherwise is generally available to the public
except through wilful acts by the recipient thereof, and this
confidentiality obligation, as so limited, shall survive the termination
of this Agreement.
10.4 Any disclosure to a third party is to be preceded by consultations
between the Parties as to timing, form and contents.
11 TERM AND TERMINATION
11.1 This Agreement shall upon the execution thereof by the Parties become
effective as of the date and year first above written and shall continue
in force and effect until the License Agreement between the Parties has
expired.
11.2 Notwithstanding anything to the contrary herein, in case of material
breach by a Party, this Agreement may by the non-defaulting Party be
cancelled to terminate forthwith by notice of cancellation effective
immediately upon receipt of such notice by the defaulting Party, if
within sixty (60) days after notice of such breach the breach shall not
have been corrected or remedied by the defaulting Party (save to the
extent contested on justifiable grounds in good faith).
11.3 Should any of the following events occur, namely:
(a) any Party becoming insolvent or having a receiver appointed for its
assets or execution or distress levied upon its assets;
(b) an order being made or a resolution being passed for winding-up,
liquidation or merger of any Party (except where any such event is
only for the purposes of amalgamation or reconstruction with
another group company and the resultant company emerging is or
agrees to be bound by the terms hereof);
(c) any Party resolving to file for bankruptcy or administration
proceedings, filing for such proceedings, or having filings for
such proceedings made against it;
6
then the Party not so affected may terminate this Agreement to
expire forthwith by filing of a notice to such effect with the
other Party.
12 WARRANTY
12.1 Newco warrants that the Products shall be new and unused, and free
from all defects arising from inferior materials or faulty or
inferior manufacturing or workmanship.
12.2 The warranty period shall be twelve (12) months assuming that the
using circumstances follow the parameters given by Newco and it
shall begin at the date of delivery of the respective Product,
unless the Product is rejected or the date of delivery is postponed
or rescheduled in accordance with Section 9 above.
12.3 In the event that any Product being found to be defect due to
inferior materials or faulty or inferior manufacturing or
workmanship, Newco's sole responsibility in consequence thereof
shall be to repair or have repaired the relevant Product or to
deliver a new similar Product in lieu of the faulty Product.
13 LIABILITY
13.1 AK agrees to indemnify Newco against and hold Newco harmless from
any and all consequences of any and all claims, suits, actions or
demands asserted against Newco directly from any liability claim
made by third parties or end-users.
14 LIMITATION OF LIABILITY
14.1 In no event, however, shall the Parties' be liable to each other
for any loss of profits, loss of business, loss of use or data,
interruption of business, or for indirect or consequential damages
of any kind, except, however, for any loss or damage caused by
wilful conduct or gross negligence.
7
15 INSURANCE
15.1 AK shall take out and maintain full and comprehensive insurance
policies for professional indemnity and public liability hereunder
and shall at Newco's cost notify the insurers of Newco's interest
and cause such interest to be noted on the policies (if the
policies so permit). AK shall supply promptly to Newco on request
copies of such policies and evidence that the premiums on them have
been paid.
16 CONFLICT OF DOCUMENTS
16.1 To the extent that this Agreement is in conflict with the License
Agreement between the Parties, the License Agreement shall prevail.
This Agreement shall be applied in conjunction with the License
Agreement.
17 NOTICES
17.1 All notices, requests, demands or other communication to the
Parties shall be deemed to have been duly given or made when
delivered by mail, facsimile or otherwise demonstrably to the Party
in question as follows:
(a) if to Newco:
Balantum Oy
C/O Asianajotoimisto Waselius and Wist Oy
Etelqesplanad: 24 A
00130 Helsinki
Finland
Facsimile: +358966895222
Attention: CEO Juhani Kujala
(b) if to Aquamax:
Aquamax Holding B.V.
Locatellikade 1, Parnassustoren
1076 AZ Amsterdam
P.O. Box 7215, 1070 AE Amsterdam
the Netherlands
Facsimile: +3589228831
Attention: Mr. Tauno Palatie
8
(c) if to Keeran:
Keeran Corporation N.V.
World Trade Center Curacao,
Unit BC.II.01-04, Piscadera Bay
Willemstad, Curacao,
the Netherlands Antilles
Facsimile: +3589228831
Attention: Mr. Tauno Palatie
or to such other address as the respective Party hereafter may specify in
writing to the other Parties.
17.2 Notices, requests, demands or other communication shall be
considered received when actually received.
18 FORCE MAJEURE
18.1 In the event of the Newco being unable to fulfil its obligations
under this Agreement due to an event beyond Newco's control
effectively preventing such fulfilment, such as (a) authority
ruling or decision; (b) changed legislation; (c) act of God; (d)
riot, strike, lock-out or other similar work conflict; (e) sudden
destruction of relevant business means; or (f) other comparable
event, then Newco shall be relieved from such obligation for the
effective duration of the relevant event.
18.2 Upon the occurrence of a force majeure event, as defined in section
18.1 above, Newco shall forthwith inform AK thereof, failing which
Newco shall not have the right to refer to such force majeure event
and shall not be relieved from the fulfilment of its obligations
hereunder.
18.3 In case of a force majeure event, as defined in section 18.1 above,
having existed for more than sixty (60) days on a continuous basis,
AK shall have the right to terminate this Agreement to expire
forthwith by the giving of written notice to such effect to Newco.
19 SCHEDULES INCORPORATED
19.1 Each Schedule to which reference is made herein and which is
attached hereto shall be deemed to be incorporated in this
Agreement by such reference.
20 HEADINGS
20.1 The headings of this Agreement are for convenience of reference
only and shall not in any way limit or affect the meaning or
interpretation of the provisions of this Agreement.
9
21 ASSIGNMENT
21.1 This Agreement and the rights and obligations specified herein shall
be binding upon and inure to the benefit of the Parties and shall not
be assignable by any Party.
21.2 Newco may, however, assign this Agreement to a company belonging to
the same group of companies as defined in the Companies Act of 1978.
22 INTEGRATION
22.1 This Agreement represents the entire understanding and agreement
between the Parties with respect to the subject matter hereof and
supersedes all prior negotiations and understandings relating
thereto.
23 NO WAIVER
23.1 Failure by a Party at any time or times to require performance of any
provisions of this Agreement shall in no manner affect its right to
enforce the same, and the waiver by a Party of any breach of any
provision of this Agreement shall not be construed to be a waiver by
such Party of any succeeding breach of such provision or waiver by
such Party of any breach of any other provision hereof.
24 GOVERNING LAW
24.1 This Agreement shall be governed by and construed in accordance
with the laws of Finland.
25 SETTLEMENT IN GOOD FAITH
25.1 In the event of any dispute concerning this Agreement or the
interpretation of the same, it is hereby agreed that the Parties
shall use their best endeavours to settle such disputes, without
recourse to law, by means of negotiations in good faith under the
spirit of fair treatment of one another, but should this not be
found possible, then such disputes shall be referred to arbitration
in accordance with section 26 below.
10
26 ARBITRATION
26.1 Any dispute, controversy or claim arising out of or relating to
this Agreement or the breach, termination or invalidity thereof
shall be settled by arbitration in accordance with the Finnish Act
on Arbitration Procedure. The arbitration tribunal shall consist of
three arbitrators one of whom shall be appointed by the Newco and
one (1) of whom shall be jointly appointed by the AK parties to the
relevant dispute, controversy or claim. The arbitrators so
appointed shall jointly appoint the third arbitrator to act as
chairman. Unless a party has appointed its arbitrator or the
arbitrators have failed to appoint the third arbitrator within
twenty-one (21) days from being requested to appoint its arbitrator
of from the date the second arbitrator was appointed, as the case
may be, the relevant arbitrator shall be appointed by the Committee
of Arbitration of the Central Chamber of Commerce of Finland. The
place of arbitration shall be Helsinki and the arbitration
proceedings shall be carried out in the English language.
27 AMENDMENTS
27.1 Any amendments to this Agreement shall be in writing and shall have
no effect before signed by the duly authorised representatives of
all the Parties.
28 PROVISIONS SEVERABLE
28.1 If any provision of this Agreement is held to be invalid or
unenforceable such determination shall not invalidate any other
provision of this Agreement; however, the Parties shall attempt,
through negotiations in good faith, to replace any provision of
this Agreement so held to be invalid or unenforceable. The failure
of the Parties to reach agreement on a replacement provision shall
not affect the validity of the remaining provisions of this
Agreement.
29 PUBLICITY
29.1 ave as required by law, governmental decree, any applicable
regulations or any official action, the contents of this Agreement
shall remain secret indefinitely, unless explicitly otherwise
agreed.
30 COUNTERPARTS
30.1 his Agreement has been executed in three (3) identical
counterparts, one (1) for each Party.
IN WITNESS WHEREOF, the Parties have duly executed this Agreement as of the day
and year first above written.
11
Balantum Oy
/s/ Juhani Kujala
-------------------------
Aquamax (International) Holding B.V. Keeran Corporation N.V.
/s/ Rainer Sjostrum /s/ Rainer Sjostrum
------------------------- -------------------------
12
Schedule 1
Patents
13
Schedule 2
The Minimum Purchasing target for AK is:
1. First 12 months period 3 projects (either turn key or
cartridges and other
polymericcomponents
2. Second 12 months period 6 projects (as under 1. above)
3. Third 12 months period 10 projects (as under 1. above)
4. Fourth 12 months period 15 projects (as under 1. above)
5. Fifth 12 months period 20 projects (as under 1. above)
14