EXHIBIT 10.29
DISTRIBUTOR AGREEMENT
This agreement is entered into this 1st day of November, 1998 by and between
Alcide Corporation, a Delaware corporation whose offices are located at 8561
154th Ave. N.E., Redmond, Washington (hereinafter "Supplier") and IBA,
Incorporated, 27 Providence Road, Millbury, MA 01527 (hereinafter
"Distributor").
This Agreement shall be binding on successors, affiliated companies and
assigns of Alcide Corporation and IBA, Incorporated.
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties agree as follows:
1. DEFINITIONS
As used herein, the term
1.1 "Contract Term" shall be a four year period starting on the
date that this Agreement is signed by both parties.
1.2 "Product" shall refer to Alcide external udder care products
including UDDERgold Plus Germicidal Barrier Teat Dip, 4XLA Pre- and
Post-Milking Teat Dip, Pre-Gold Pre-Dip, 4XLA Sprayable Concentrate and
Continue Concentrate. Product shall include any refinements or improvements
to the existing udder care product line, any new teat dips, and any other
topical OTC antimicrobials intended for bovine treatment and introduced into
the U.S. market by Alcide Corporation during the term of this Agreement.
Product shall also include UDDERgold if that product is reintroduced in the
U.S.
1.3 "Territory" shall be defined as the 48 contiguous states of the
United States of America.
2. APPOINTMENT AND AUTHORITY OF DISTRIBUTOR
2.1 Subject to the terms and conditions of this Agreement, Supplier
hereby appoints Distributor as non-exclusive distributor of the Product for
the Territory. Distributor hereby accepts said appointment and agrees to
actively promote and sell the Product.
2.2 Distributor may appoint agents, dealers or sales
representatives to act on Distributor's behalf for sales of the Product in
the Territory, provided that any compensation to such agents, dealers or
representatives shall be solely Distributor's responsibility.
2.3 Distributor covenants that it will maintain this Agreement for
the four year Contract Term and will not market an acidified sodium chlorite
teat dip product other than purchased directly from Supplier during the term
of the Agreement and any extensions thereto. Distributor also covenants that
it will advise Supplier one year in advance of its intention to market an
acidified chlorite teat dip product. If such notification occurs during the
contract term, Supplier may immediately add additional distributors in the
Territory.
2.4 Subject to the terms and conditions of this Agreement,
Distributor is authorized to sell the Product purchased from Supplier in such
manner, at such prices and upon such terms as Distributor shall determine.
Distributor is an independent contractor, not an agent or employee of
Supplier.
2.5 Labeling of the Product shall be mutually determined by the
Supplier and Distributor. Any changes to Product labels shall be mutually
agreed upon by Supplier and Distributor.
In any of the Distributor's activities relating to the
promotion and sale of the Product, the Supplier's name and trademark shall
always be prominently displayed in order to protect Supplier's rights and
goodwill in the same. Whenever Supplier's name and trademark are used in
advertising and promotional programs, Supplier retains the right to review
and approve same. Such agreements shall not be unreasonably withheld by
either Supplier or Distributor.
2.6 All trade names, trademarks and product names under which the
Product is sold shall be the property of the Supplier.
3. TERMS AND CONDITIONS OF SALE
3.1 All of Distributor's orders for the Product shall be subject to
the terms and conditions set forth in this Section 3 and in the attached
Schedule C which provides product pricing; no additional or different terms
set forth in Distributor's or Supplier's purchase order, acknowledgment or
other forms or correspondence (other than an amendment to this Agreement
pursuant to Section 8.1 hereof) shall govern any sales of the Product by
Supplier to Distributor.
3.2 Supplier shall be responsible for labeling, packing and
shipping all Product ordered in a form agreed upon between Supplier and
Distributor as being appropriate for the Territory and suitable for ready
sale to the end user in the Territory. All shipments shall be F.O.B. United
States warehousing location and all shipping costs from warehouse shall be at
Distributor's expense.
3.3 Supplier and Distributor have agreed to minimum monthly
commitment amounts of product (as set forth in Schedule A attached) to be
purchased by Distributor during the
Contract Term. In addition, Supplier and Distributor have agreed to sales
goals (as set forth in Schedule A attached) which exceed the monthly
minimums. Goals will be reviewed quarterly so that appropriate marketing
strategies can be developed and implemented to facilitate attainment of the
goal. Distributor will provide a 12 month forecast of anticipated product
purchases, which forecast will be updated quarterly to facilitate Supplier's
planning. Monthly purchase orders of at least the defined minimums will be
issued by Distributor to Supplier ninety (90) days in advance of the first
day of the month in which delivery is to be made.
The goal amounts listed in Schedule A assume that Supplier will
distribute through both IBA and one other national distributor (or regional
equivalents) throughout the territory. The Alcide selling prices and terms of
sale shall not be such that IBA dealers or distributors (as the case may be)
are at a competitive disadvantage in the local marketplace.
Provided 125% of the annual minimums listed in Schedule A are
attained by Distributor, Supplier shall not appoint additional distributors
other than described above for any portion of the Territory. In no event will
Supplier add more than one additional national distributor (or regional
equivalents).
3.4 Distributor shall make payments to Supplier for Product ordered
and received by Distributor within thirty (30) days of invoice billing date.
3.5 Distributors purchase order for the month of November, 1998
shall be at least the minimum 30,000 gallons plus a one-time stocking order
for the West Coast of an incremental 10,000 gallons.
3.6 Supplier provides the Limited Warranty as described in Schedule
B. Supplier also warrants that Supplier is authorized to enter into this
Agreement and to grant to Distributor the rights provided for in Section 2.1.
Supplier also warrants that patents and trademarks relating to the Product
are owned by Supplier and that the Product is the result of original research
of Supplier.
3.7 Distributor warrants that all advertising and promotional
materials developed by Distributor shall be in accordance with descriptions
of Product provided by Supplier and, to the best of Distributor's knowledge,
shall be accurate in all material respects. Distributor warrants that
Distributor is authorized to enter into this Agreement and the same does not
and shall not infringe upon any other agreements it may have.
3.8 The initial purchase prices for Product are listed on Schedule
C attached hereto.
Prices shown in Schedule C may be revised during the term of
this Agreement following sixty (60) days prior written notice to Distributor
from Supplier.
3.9 Provided that the Product has been distributed by IBA in
accordance with this Agreement, Alcide shall indemnify and hold harmless IBA
and IBA's officers, directors, employees, agents, dealers and sales
representatives against any claims by third parties which may arise due to
Product defects or defects in instruction and warnings as provided by Alcide
or which may arise due to any other breach by Alcide of its warranties set
forth in Section 3.6 hereof and attached Schedule B. IBA agrees to indemnify
and hold harmless Alcide against any claims by third parties which may arise
due to IBA, its officers, directors or employees advising the use of the
Product in a manner inconsistent with the stated instructions and warnings on
the Product label. Alcide and IBA shall give prompt notice to the other of
any claim, threatened claim or litigation which in any way relates to the
Product distributed under this Agreement. Alcide and IBA shall provide
reasonable cooperation and assistance to each other in the defense of any
claim or litigation relating to the use of Product distributed under this
Agreement.
4. PROMOTIONAL ACTIVITIES
4.1 Supplier shall regularly advise Distributor of any new
developments concerning Product availability and formulation.
4.2 Distributor shall undertake such advertising and promotional
activity relating to Product as is deemed appropriate by Distributor and
Supplier to actively promote sales.
4.3 Within three (3) calendar months of signing of the Agreement,
Distributor shall provide to Supplier a complete marketing plan detailing the
advertising, promotional and distribution activities to be undertaken in the
Territory for the first twelve (12) months of sales.
4.4 Distributor's subsequent marketing plans shall be provided to
Supplier annually at the anniversary date of thisAgreement. A list of major
meetings, annual shows, seminars and training programs at which Supplier's
participation is desired shall be submitted ninety (90) days in advance by
Distributor.
4.5 A tabulation of Distributor sales by Product and IBA Sales
Region shall be provided by Distributor to Supplier at the end of each fiscal
quarter.
4.6 Supplier shall have free access to inserting eight (8) pages of
advertising or promotional articles relating to Product in Dairy World
magazine for each year of the contract term. Such advertising or promotional
material shall be prepared by Distributor based on technical information
provided by Supplier.
4.7 Supplier shall have access to Distributors dealers through
participation at each of the Distributors twice a year regional meetings.
4.8 Supplier shall have access to each of the Distributor's Area
Sales Managers and shall be afforded the opportunity to discuss Product
strategy, new products and promotional ideas with Area Sales Managers in a
group meeting at least once during each year of the Agreement.
4.9 Both Distributor and Supplier recognize that Suppliers lactic
acid gel patent expires in April, 1999, and that generic competition may
emerge as a result of this event. It is recognized by both Distributor and
Supplier that it will be in their mutual interest to defend against such
generic competition, and accordingly the parties agree to cooperate in such
defense.
5. TERM AND TERMINATION
5.1 Ninety (90) days prior to expiration of this Agreement,
Distributor and Supplier shall meet to determine their intentions regarding a
new or extended agreement.
5.2 This Agreement may also be terminated by either party,
effective immediately upon notice to the other, in the event that the party
to which such notice is sent becomes the subject of any bankruptcy or
insolvency proceedings. This Agreement may also be terminated by Supplier
effective immediately in the event Distributor is delinquent in payment of
invoices, as defined by Paragraph 3.4, by more than thirty (30) days.
5.3 This Agreement may be terminated by either party in the event
there is a material breach of the contract by the other party. The injured
party shall give written notice of the breach. The party causing the breach
shall then have 60 days to cure the breach. If the breach is not cured
within 60 days, the Agreement shall be terminated.
6. APPLICABLE LAW.
This Agreement shall be construed in accordance with the laws of the
State of Delaware.
7. CONFIDENTIAL INFORMATION
7.1 A. The Supplier and Distributor agree, with respect to any
confidential information received from the other and identified as
confidential information, that:
(1) the receiving party shall use reasonable care to
prevent disclosure of the confidential information to any third party without
prior written consent of the disclosing party, and the degree of care taken
by the receiving party shall be at least as great as the degree of care which
the receiving party takes in protecting its own confidential information; and
(2) The receiving party shall not use confidential
information disclosed by
the other party for any commercial purpose other than pursuant to this
Agreement, or publish or disclose it to third persons without the prior
written consent of the disclosing party.
B. Neither party shall have any obligation with respect to any
information disclosed by the other party:
(1) which is already in the possession of the receiving
party at the time of its receipt from the disclosing party;
(2) which the receiving party lawfully receives from
another person whose disclosure thereof to the receiving party does not
violate any rights of the disclosing party;
(3) which is or becomes published or otherwise publicly
available through no act or omission of the receiving party.
C. Upon termination of this Agreement, as provided for in
Section 5, the Distributor and Supplier shall each, upon the written request
of the other, return or destroy all materials, copies thereof and extracts
therefrom which include any information designated as confidential by the
other pursuant to Section 7.1.A. Each may, however, retain for legal archival
purposes only, one (1) copy of all such material.
D. The provisions of this Section 7.1 shall survive
termination of this Agreement and remain in full force and effect for a
period of three (3) years as to any item of confidential information.
8. ENTIRE AGREEMENT
8.1 This Agreement constitutes the entire agreement between
Distributor and Supplier and may be amended only by a written document signed
by both parties hereto.
8.2 Either party may change its address by giving prior written
notice to the other party of its new address.
If to Supplier: Alcide Corporation
Attn: Joseph A. Sasenick
with a copy to: James R. Lisbakken
If to Distributor: IBA, Incorporated
Attn: Dan Belsito
IN WITNESS WHEREOF, the parties have executed this Agreement on the date first
above written.
ALCIDE CORPORATION
("Supplier")
By /s/ John P. Richards
--------------------------
John P. Richards
Executive Vice President
Hereunto Duly Authorized
IBA, Incorporated
("Distributor")
By /s/ Daniel J. Belsito
--------------------------
Daniel J. Belsito
President
Hereunto Duly Authorized